Property Rights

Pennsylvania Supreme Court Rejects Takings Challenge to Coronavirus Shutdown Order

The Court's decision follows almost exactly the same line of reasoning as I had expected.

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As co-blogger Eugene Volokh points out, yesterday the Pennsylvania Supreme Court rejected a takings challenge to the governor's coronavirus shutdown order. In  Friends of Danny DeVito v. Wolf, the Court ruled against several businesses whose owners argued that the governor's order forcing them to shut down was a taking of private property that requires compensation under the Takings Clause of the Fifth Amendment, and the similar provision in the Pennsylvania state constitution. The Court's reasoning is largely the same as that I laid out in my March 20 post addressing the same issue. Specifically, the majority ruled that the shutdown does not qualify as a taking because it is an exercise of the "police power" and because it is only a temporary restriction on the owners' use of property, which therefore does not destroy all of its economic value:

[W]e conclude that Petitioners have not established that a regulatory taking has occurred. The Executive Order results in only a temporary loss of the use of the Petitioners' business premises, and the Governor's reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens, undoubtedly constitutes a classic example of the use of the police power to "protect the lives, health, morals, comfort, and general welfare of the people[.]" Manigault v. Springs, 199 U.S. 473, 480 (1905). We note that the Emergency Code temporarily limits the Executive Order to ninety days unless renewed and provides the General Assembly with the ability to terminate the order at any time. 35 Pa.C.S. § 7301(c). Moreover, the public health rationale for imposing the restrictions in the Executive Order, to suppress the spread of the virus throughout the Commonwealth,is a stop-gap measure and, by definition, temporary.

Chief Justice Saylor's partial dissent on behalf of three of the seven justices, takes issue with the majority opinion on several points, but still would not rule in favor of the plaintiffs outright—instead concluding that some of the issues they raise should be addressed more fully in the lower courts before reaching a final decision. In addition, the dissent does not argue that the takings issue is one of those that require additional consideration, though it does question the majority's argument that the losses inflicted on the owners are only temporary:

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. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 337, 122 S. Ct. 1465, 1486 (2002)….

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…

Although Tahoe-Sierra is a takings case, the dissent cites it only to bolster the contention that the plaintiffs' businesses may have been shut down without proper due process—not the claim that they deserve compensation under the Takings Clause. Indeed, the word "taking" is not even mentioned in the dissent.

As discussed in my earlier post, I think the correct interpretation of Takings Clause would require compensation in at least some of these cases, and that compensation for owners of shut down businesses and other enterprises is often required as a matter of morality and policy, even if it is not dictated by the Constitution.  That said, the majority's decision in this case is the right one under current Supreme Court precedent.

The Pennsylvania Supreme Court's ruling in this case also  rejects several other challenges to the legality of the shutdown order, which I will leave to experts on those particular subjects. Eugene Volokh has blogged about them here, here, here, and here.

NEXT: Penn. S. Ct. Rejects Free Speech Challenge to Shutdown

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  1. “Governor’s reason for imposing said restrictions on the use of their property, namely to protect the lives and health of millions of Pennsylvania citizens”

    That is, in fact, not so, strictly speaking. The restrictions are to flatten the curve. This includes no plan to limit infections, only to tailor the infection rate to suite the inadequately prepared state and hospitals.

    1. This is correct. We are seeing a fascinating example of meme evolution here, where transmission of the disease directly as a small danger is treated as the evil in and of itself, rather than the original reason, to stop wildfire spreading leading to overwhelming hospitals leading to unnecessary deaths.

      This thing has to plow through humanity, sucks to be humans, until it dies away from herd immunity, and hopefully at-risk people and groups can be kept safe.

      This blog is starting to have articles about lawsuits about transmission itself, which is in no way the issue here.

      It should not be allowed. Lawyers should not pocket gigatons of yachts from this unfortunate incident by developing claims of issues of simple transmission.

      Since legislatures can say things like no court shall entertain such and such type lawsuits (IIRC congress banned unhealthy food lawsuits as the cigarette settlements were winding up and lawyers turned their covetous eyes to class action suits against big chain restaurants) they should do so here.

      And sooner rather than later. We don’t need insurance to force every business to be like ladders with six hundred warning stickers everywhere and half the cost of it going to said insurance to protect the business.

      1. If there is a persuasive argument to depart from customary tort principles in this context, I have not seen anyone provide it.

    2. What you say about the restrictions is true. But I don’t see how it makes the governor’s reason untrue. The point of not overburdening the healthcare system with covid cases is “to protect the lives and health of…” etc.

  2. These are the same disgusting liberals who decided to rewrite the districting map to benefit the Democrat Party. Liberals should be gassed.

    1. Leftists, not Liberals. There is a difference.

      1. You wanna gas the leftists, Ed?

        1. They already got Artie Ray, Sarcastro.

        2. You wanna gas the leftists, Ed?

          No. Put them in the stern of a lobster boat and make them fill bait bags. THAT I would enjoy doing….

          1. It appears a lifetime of having your nation’s progress shaped against your wishes and efforts — coupled with the prospect of even more liberal-libertarian progress so far as a reasonable citizen can discern — affects conservatives in different (but similar) ways. Gas chambers, lobster boats, keelhauling . . . maybe even pious dreams of the return of the Judas Cradle or the Heretic’s Fork?

  3. Talk about burying the lede. Friends of Danny DaVito?

    1. I did make a Always Sunny in Philadelphia joke in the subhead of my first post about the case, but didn’t want to dwell on it further ….

      1. …because of the implication.

  4. Courts also serve as a pressure relief valve, and this one failed as badly as Roger Taney did with _Dredd Scott_ — and this is going to get very ugly, very quickly.

    1. Good lord, you are bloodthirsty. Thread after thread, nothing but predictions of violence.

      You’ve got issues, man.

      1. The Liberty Rebellions are spreading, spreading, spreading….

        The grassroots are p*ssed — really p*ssed, and I’m merely reporting what I’m seeing and hearing.

        1. Dr. Paul, who is a far superior healer than Dr. Anthony “chicken little” Fauci, noted the spread of the liberty rebellions this morning on Jeff Kuhner’s show.

          Dr. Paul recognizes that regular exposure to fresh air and sunshine is far more effective than house arrest for dealing with the Chinese flu.

          1. Why does this blog attract so many anti-social, seething, disaffected, all-talk predictors of armed rebellion against mainstream America, progress, diversity, and reason?

          2. Libertymike — I was listening to Kuhner’s show as I typed that…

            Now if Kuhner (who has sources in DC) is right about Fauci, including the corrupt link to Bill Gates, well that is an interview that I *really* want to listen to! Reportedly she has known Fauci for 30+ years and considers him a fraud.

    2. Dred Scott involved the court striking down government action, this is affirming it. The Taney court certainly saw itself as providing a relief valve. So, as far as analogies go, it doesn’t make much sense beyond going for hyperbole.

      1. How many times in SCOTUS history has a justice resigned in protest of a decision?

      2. Dred Scott affirmed slavery, which is a government action (civilians who practice slavery are otherwise known as kidnappers).

        Jim Crow was also government action.

        Why do you want to pretend otherwise?

    3. Dr. Ed, please stop agitating for violence. It has become evident that is what you would prefer. If your intent were not agitation, you would not keep repeating yourself nearly daily.

      1. Support for shut-downs is support for actual violence.

        1. Support for melodrama is the REAL violence!

        2. Open wider, Libertymike.

          Or not. Your comfort is becoming a diminishing concern among mainstream Americans.

          But thank you for your lifetime of compliance with the preferences of your betters.

          1. Sure Karen. As another post here states that snitching has become mainstream. That’s “progress”. By the way, have you heard the monthly chocolate ration has increased to 20 grams?

            1. The people who brought us armed, half-drunk amateurs at the border, holding people at gunpoint, are whimpering about calls to police?

              No wonder society rejects you, creating the disaffected, anti-social clingerverse.

      2. Stephen, around these parts, a lot of people have built a lot closer to the ocean than they should have. Is my pointing out that the next hurricane will wash their house out to sea the same thing as me hopping onto a bulldozer and pushing it there?

        1. Better, you build your house on what the locals call “dead man’s curve.”
          I say you are a damn fool doing so because some drunk driver will demolish it and kill your entire family.

          I’m NOT saying I will do it.
          I’m NOT saying that I even drive drunk.
          Instead, I’m stating an opinion based on known past incidents.

          So too here — there will be violence if this despotic rape of our civil rights continues.

          1. ” despotic rape of our civil rights ”

            You’ve been reading too much content on right-wing blogs operated by the academic fringe.

            1. NO, I coined that term myself, damn it.

          2. I too think things will get ugly if the State tries to keep this lockdown going for long. People get bored, people get poor, people get angry.

            But I think it more likely that people will just gradually start ignoring the lockdowns and start going outside. They will gradually go for walks, talk with neighbors outside while standing one fathom apart, and cops will not be able to stop them, if they are stupid enough to try.

            Eventually there will be BBQs on sidewalks, block parties, and that will inevitably lead to thumbing their noses at the authorities.

            Eventually people will visit their stores, “to check its inventory and security” but really to sneak out supplies to sell to neighbors. That will become the norm, and stores will openly open.

            The lockdowns will be lifted by people before governments make it official. For hints, see all the church meetings in defiance of authority. Lawyers will come in after the fact to make it legal. Look at how the Louisville mayor backed from from IT’S THE LAW to IT WAS JUST A SUGGESTION.

            1. Good luck with your anti-social, science-disdaining, dumbass fantasies. Perhaps that type of thinking will be popular in can’t-keep-up America, but those towns and their populations have been declining for decades, so maybe some virus-related depletions won’t matter as much or be as noticeable there.

          3. Posting your dire prediction on a thread or two may be reporting what’s you see.

            Posting on every thread that same prediction, that becomes a narrative you are pushing.

            Tying your prediction to if we don’t start doing what you want…that’s becoming a wish.

            1. To bury one’s head in the sand is to be an ostrich.

              1. Most people are more scared of the virus than the temporary removal of a few civil rights. Perhaps that will change as time goes on. And ostriches don’t bury their heads in the sand.

                1. We still have Americans who juggle rattlesnakes — and arrange for children to do some juggling. Takes all kinds, including the dumbass kind.

                  1. Kirkland, snake handling has always been a diminishing art, with few elderly practitioners. If you don’t get children started young, it would die out notably quicker than standard life insurance tables would suggest.

                    1. You can still find rattlesnake-jugglers in West Virginia and adjoining jurisdictions (Appalachia). Bites have been reported — the goobers often try to hide them, but sometimes can’t keep the lid on — as recently as a year or so ago; I believe one pastor was killed by his stupidity (and by a snake) a couple of years ago.

  5. Justice Brown’s Manigault opinion is nothing more than a tired reiteration of the proposition that the police power trumps the protection of explicit constitutional provisions because the police say so.

    1. LIbertymike’s comment is nothing more than a tired reiteration of the proposition that his opinion trumps actual professionals and scholars because he says so.

      1. Sarcastr0’s comment is nothing more than tired.

      2. Sarcastro, syntax. Employ it.

        Break it down. Your asseveration is that an opinion trumps actual professionals and scholars.

  6. “nor shall private property be taken for public use, without just compensation.”

    I must have missed the “unless it’s only temporary” footnote to the Takings Clause.

  7. You mean the Supreme Court purchased by the infamous, John J. “Johnny Doc” Dougherty, the Philly labor leader who was indicted in 2019 for misusing IBEW Local 98 funds? Johnny Doc allegedly spent $1.5 million of the union’s fund on campaign funds which directly benefited his baby brother, Kevin Dougherty with a place as the swing vote on the PA Supreme Court. Any ruling by this court is guaranteed super-duper constitutional.

    1. According to the article, none of the seven justices ruled for the plaintiffs. So it wasn’t really a swing vote kind of case.

    2. Fun story, but Dougherty actually joined Saylor’s concurrence/dissent here. It’s not a long read. Here are the more salient bits:

      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 less 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. Majority Opinion, slip op.at 42. While the majority repeatedly stresses that such closure is temporary, see id., 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. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 337, 122 S. Ct. 1465, 1486 (2002).

      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.” Id. at 330. 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.

  8. 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.

    Seems like that gives the game away. The judge got “asserted,” right, but disclosed a tell with, “when.” Shouldn’t the posture of the court demand, “. . . particularly if the livelihoods of citizens are being impaired to the degree presently asserted.”

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