The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Friends of Danny DeVito v. Wolf, handed down yesterday, held that the order didn't violate the Due Process Clause though it classifies various businesses as non-essential without a prior hearing:
Under the circumstances presented here, namely the onset of the rapid spread of COVID-19 and the urgent need to act quickly to protect the citizens of the Commonwealth from sickness and death, the Governor was not in a position to provide for pre-deprivation notice and an opportunity to be heard by Petitioners (and every other business in the state on the non-life-sustaining list)….
While procedural due process is required even in times of emergency, we conclude that the waiver process provides sufficient due process under the circumstances presented here…. The waiver process provides … a summary [and adequate] procedure that provides businesses with an opportunity to challenge the Governor's placement of their business on the non-life-sustaining list…. [T]he "waiver" process is in actuality a review process that provides businesses an opportunity to challenge, and the Governor's office to reconsider, whether the placement of a business on the non-life-sustaining list was a proper categorization….
[The court concluded that the Constitution doesn't require oral hearings for the waiver process: -EV] As of the filing of the Respondents' brief … more than 34,000 waiver applications have been filed, and it would be impossible, given available resources, to provide the level of due process suggested by Petitioners to every applicant (or any significant percentage of them) and to reach final determinations with respect to the merits of those applications in a timeframe commensurate with the existence of the disaster so that relief could be afforded….
Three Justices dissented in part on this point:
I believe there is much to be said for treating the executive branch's actions as presumptively valid for now, while not foreclosing colorable challenges from moving forward in the appropriate court of original jurisdiction, i.e., the Commonwealth Court. Importantly, that court, unlike this one, is organized to support orderly fact-finding. Thus, it can more appropriately administer the necessary judicial consideration in the first instance, subject to appellate review by this Court if necessary….
I am [not] confident, however, in the majority's conclusion that "summary administrative action" by the executive branch to close many businesses throughout the Commonwealth must evade judicial review as a check against arbitrariness. While the majority repeatedly stresses that such closure is temporary, this may in fact not be so for businesses that are unable to endure the associated revenue losses. Additionally, the damage to surviving businesses may be vast. Significantly, moreover, the Supreme Court of the United States has admonished that the impermanent nature of a restriction "should not be given exclusive significance one way or the other" in determining whether it is a proper exercise of police power.
The majority opines that "[t]he protection of the lives and health of millions of Pennsylvania residents is the sine qua non of a proper exercise of police power." I believe, however, that greater account must be given to the specific nature of the exercise, and that arbitrariness cannot be tolerated, particularly when the livelihoods of citizens are being impaired to the degree presently asserted.
To me, the majority allocates too much weight to temporariness to defeat developed allegations of a lack of due process in the executive branch's determination of which businesses must close and which must remain closed. [Footnote: Such allegations include the following: "It is not clear why some businesses are on the life-sustaining list[.] For example, why are 'beer, wine, and liquor stores,' determined to be non-life-sustaining, but 'beer distributors' are determined to be 'life-sustaining?' Why are 'department stores' non-life-sustaining, but 'other general merchandise stores' life-sustaining?"]
Again, there seems to be a factual dynamic that should not be dismissed out of hand. Certainly, the executive branch may engage in proper exercises of police power in a disaster emergency, and a fair amount of deference to its decisions may be in order. At least short of martial law, however—relative to the broad-scale closure of Pennsylvania business for a prolonged period—I don't believe the executive's determinations of propriety can go untested in the face of the present allegations of inconsistency and irrationality.
My view: I think the majority's result is right, though I also think that, as to the big picture classification decisions, hearings probably need not be required, under the principle of Bi-Metallic Co. v. Colorado (1915) (which hasn't been cast in doubt by later cases):
Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.
Decisions whether a particular business is indeed, say, a liquor store as opposed to a grocery store, do require a hearing: If a business is prosecuted for staying open in violation of the order, the government would have to prove that it was indeed a liquor store. Likewise, if a state allows individual businesses to get a waiver, the Due Process Clause may govern the process of making those decisions. But decisions about which categories of businesses are in and which aren't don't require a hearing, I think.