Stay-At-Home: Governors’ Orders in Pennsylvania, Michigan and Wisconsin

The police power is the inherent power of the government to enact and enforce laws for the promotion of health, safety, and general welfare. Traditional applications of the police power include regulations for public safety, public health, controlling the spread of disease, and law and order. The concept of public welfare is “broad and inclusive,” and is not limited to these areas. By contrast, eminent domain is the right of the government to take title to private property for public use. Correlatively, the Fifth Amendment of the U.S. Constitution “prohibits government confiscation of private property for public use without just compensation to the property owner.” In balancing the two similar propositions, the United States Supreme Court in a regularly quoted opinion concluded there is no compensation due if the State is exercising powers that have always inhered in its sovereignty to prevent nuisance.

These conflicts were addressed directly in a recent Pennsylvania Supreme Court case assessing the Governor’s powers in response to the COVID-19 pandemic. The Pennsylvania Court characterized the police powers of the state as one of the most essential and least limitable, quoting an earlier decision anchoring that protection in the need to protect society in a world of changing circumstances. The Pennsylvania Court further determined that the Pennsylvania Governor’s exercise of limiting business activity of “non-essential businesses” did not exceed the police powers by rejecting three arguments presented to it. The first was that the public’s interests are not served by the mass closure of businesses, as the public has an interest in continuing to receive the goods and services of these businesses. The Pennsylvania Court’s conclusion was that the closure of non-essential businesses was a reasonable response to the emergency. Second, it rejected the argument that shuttering non-essential businesses is unnecessary for the prevention of the spread of COVID-19 where the disease has not been detected at those places of business, because the virus does not reside at a location, but rather spreads violently across locations. Third it rejected that the closure was unreasonably burdensome, especially to businesses that depended on public patronage, because when albeit significant economic impact is weighed against the health and survival of 12,800,000 Pennsylvanians, it is not unduly oppressive. The Pennsylvania Court summarized that the protection of lives and health is the “sine qua none” of the police power. The Pennsylvania Court addressed a number of other arguments including whether the order was a “taking” of private property for public use that therefore required compensation. The Pennsylvania Court adopted the legal principle that even if the exercise of police powers resulted in an actual taking or destruction of property, that taking is pursuant to regulation of the police power and therefore compliant with due process and furtherance of health, safety and welfare of the State’s citizens. The Pennsylvania Court further allowed that a temporary deprivation of use in the exercise of the police power is not compensable. The Pennsylvania Court also addressed the claim that the closure of non-essential business deprived them of their procedural due process because there was no pre-deprivation opportunity to be heard, post-deprivation opportunity to be heard, and the ad hoc waiver process was insufficient to comply with due process requirements. The Pennsylvania Court responded by adopting a threefold test for due process under the acknowledgement that due process is flexible and linked to the circumstances for which it would apply: the private interest affected, the measure of the loss, and the state interest involved. Here the Pennsylvania Court found the emergency required immediate action which would not permit pre-deprivation review, but that the subsequent waiver process was a sufficient relief for aggrieved parties.

By contrast, but along the same lines, the Michigan appeals court upheld the Michigan Governor’s “stay-at-home” order. In that case the objectors did not challenge the power of the Michigan Governor, but challenged the scope of the order as violating both procedural due process and substantive due process protected by the United States Constitution Fifth Amendment and Fourteenth Amendment. The Michigan Court described its duty as weighing the competing interests of individual liberty and constitutional rights of due process against the State’s police power to protect the larger community in which the individual participates. The Michigan Court gestures back to a United States Supreme Court case upholding a State’s right to require vaccination against disease. In the aftermath of the Pennsylvania decision, the DeVito parties moved for an appeal to the United States Supreme Court, which was denied without comment or opinion.

By contrast to the Pennsylvania and Michigan positions, the Wisconsin Supreme Court came to a different conclusion supported in part by a technical interpretation of the enabling statute and in part by the embrace of principles “individual rights,” on which it invalidated the Wisconsin Governor’s Department of Health Services (DHS) “safer at home” order. The holding was that the “order” was actually a “rule”, which under Wisconsin law is subject to specific rule-making procedures that were not followed by the DHS. The Wisconsin Court further distinguished the broad power of the Governor from the limited power of its DHS. It concluded that the DHS exceeded its authority by requiring stay-at-home, even to non-infected residents.

These conflicts will continue to excite passion and partisanship throughout the states as citizens chaff under the prohibitions against congregating for work, worship, and recreation. The principles will remain the same, but the arguments may vary locally.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Gregory Gosfield is a partner in the Real Estate & Finance Department at Klehr Harrison.