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Wolf’s COVID-19 business closures, limit on gatherings unconstitutional, federal court rules (free to read)

Spotlight PA is an independent, non-partisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media. Sign up for our free weekly newsletter.

HARRISBURG — Delivering a blow to Gov. Tom Wolf’s strategy for responding to the coronavirus pandemic, a federal judge on Monday ruled that key components of the governor’s mitigation strategy are “unconstitutional,” including the decision to temporarily shut down businesses and limit how many Pennsylvanians can gather in one place.

“The court believes that defendants undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus,” U.S. District Judge William S. Stickman IV wrote in the 66-page ruling. “But even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble.”

Stickman found that the Wolf administration’s policy limiting indoor and outdoor gatherings and events to 25 and 250 people, respectively, violates “the right of assembly enshrined in the First Amendment.”

The Pittsburgh-based judge also found Wolf and Health Secretary Rachel Levine’s stay-at-home and business closure orders to be unconstitutional. Health experts widely considered temporary shutdowns and limits on business operations to be necessary in order to slow the spread of COVID-19 and keep hospitals from becoming overwhelmed.

The Wolf administration will file an appeal and seek a stay to temporarily block the decision, the Democratic governor’s spokesperson, Lyndsay Kensinger, said. The ruling “is limited to the business closure order and the stay-at-home orders issued in March ... as well as the indoor and outdoor gathering limitations.”

Kensinger added that the decision does not apply to other mitigation orders currently in place including one mandating the wearing of masks in public.

During an afternoon press briefing, Levine declined to comment on the suit or its implications.

The decision comes as states across the country are girding for a potential resurgence of the virus in the fall and winter months. Wolf has insisted that every action he and his administration have taken followed recommendations by the nation’s top health experts, even as Republicans who control both legislative chambers have accused him of acting unilaterally and overstepping the bounds of his authority.

Over the summer, Pennsylvania’s highest court rejected a lawsuit by GOP lawmakers seeking to end Wolf’s disaster emergency declaration, which greatly expanded the governor’s powers.

The lawsuit that led to Monday’s decision was filed in May by four Western Pennsylvania counties — Butler, Fayette, Green, and Washington — as well as individual businesses and lawmakers against Wolf and Levine.

It targeted, in part, an order Wolf and Levine issued in March shuttering all but “life-sustaining” businesses. Exactly what was deemed life-sustaining and how that decision was made was the center of controversy, and led the administration to create a waiver program that allowed businesses told to close to appeal the decision.

But that program itself became controversial after lawmakers and business owners reported it was unevenly applied within the same industries.

The state has since lifted the stay-at-home orders and allowed businesses to reopen, although some — including restaurants, bars, and salons — are still operating under capacity restrictions. The decision does not apply to limits on how many patrons bars and restaurants can serve indoors.

Republicans in the legislature applauded the decision, including three members of the state House who helped bring the lawsuit. Rep. Tim Bonner (R., Butler) said the ruling “would basically undermine the governor’s ability to continue to rule by edict.”

Washington County Commissioner Nick Sherman, a Republican, called the decision “a huge step in the right direction.” But Sherman cautioned that people should still take wear a mask, practice social distancing, and follow Centers for Disease Control and Prevention guidance.

“This is not opening the flood gates and saying, ‘Let’s flood Heinz Field this Sunday for a Steeler game,’” he said. “There are still precautions that need to take place.”

In ruling against the Wolf administration’s order closing nonessential businesses, Stickman held that its application had been arbitrary and followed no coherent definition of which businesses were “life-sustaining” and which were not.

What’s more, the judge ruled, the administration’s waiver program was applied incoherently and allowed some companies to resume operations even while their competitors in the same industry were denied the same relief.

And while the Wolf administration has argued that the situation is moot as almost all businesses have been allowed to reopen, Stickman noted that the order issued in March had no end date and that state health officials have warned it could be reinstated as necessary at any time, forcing businesses to close again.

“The court recognizes that defendants were acting in haste to address a public health situation,” wrote Stickman, who was nominated to the federal bench in 2019 by President Donald Trump. “But to the extent the defendants were exercising raw governmental authority in a way that could (and did) critically wound or destroy the livelihoods of so many, the people of the commonwealth at least deserved an objective plan.”

Stickman’s decision came two weeks after a federal judge in Philadelphia threw out a similar challenge to the business closure order, saying the restrictions were temporary and, therefore, did not infringe in any permanent way on business owners’ constitutional rights.

“We are skeptical of claims seeking to challenge emergency government action taken to combat a once-in-a-lifetime global health crisis,” U.S. District Judge R. Barclay Surrick, an appointee of President Bill Clinton, wrote in response to a case brought by business owners in Philadelphia, Bucks, and Lancaster Counties.

His split with Stickman sets the stage for the U.S. Court of Appeals for the Third Circuit to take up the matter should the Wolf administration appeal.

In May, the U.S. Supreme Court declined to get involved in the debate over Pennsylvania’s business closure orders.

Chief Justice John Roberts, in a similar case seeking to block California’s restrictions on religious gatherings, wrote earlier this year that government officials should be granted wide latitude to act in areas “fraught with medical and scientific uncertainties” and should not be “subject to second-guessing by the unelected federal judiciary.”


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Patriots in the Park shows support for veterans, remembers 9/11

Held one day after the 19th anniversary of 9/11, Saturday’s Patriots in the Park event at Mt. Pisgah State Park featured guest speaker and Canton graduate Dan Shaffer, who was in the Pentagon when one of the hijacked planes crashed into the Department of Defense’s headquarters, killing 125 people – some of whom Shaffer knew.

As he recounted his experience from that day, Shaffer said he was working in the opposite side of the building when the plane struck, and actually didn’t realize anything had happened until someone saw it on TV and called out that the building had been hit while he was on the phone with his wife.

Shaffer, who served 30 years in the U.S. Navy, ended up working in the Pentagon about halfway through his career as part of a joint staff whose job, as he summed it up, was designing and executing war games.

“I was looking forward to a calm, two-year tour at the Pentagon,” he said. “ … Then one Tuesday morning – a really clear Tuesday morning – my newfound pals from the Army, the Air Force and the Marines were sitting around a table that we called the Jedi Table in our offices in the Pentagon. Somebody was watching TV and that’s when the news came in from New York that airplanes were crashing into the World Trade Center. Remember, this is an office full of trained war fighters – it took us a while to recognize that we were really, no kidding, being attacked. We thought at first that it was pilot error. It was a beautiful, sunny day. It was really hard for us to understand it.”

As Pentagon staff gathered on the east side lawn, Shaffer said they were waiting for the next attack to come – and although they were certain it would come, it never did. Shaffer and some others ended up going back inside the building to see how they could help until everyone that could be accounted for was accounted for.

“One of the things that sticks out for me is a guy that I knew that I hadn’t seen in years – probably 15 years – who was assigned to a completely different command on the other side of D.C., he came to the Pentagon because he wanted to help,” Shaffer remembered. “Like so many Americans, like so many first responders, and like so many warriors, he ran toward trouble, he ran toward the fire. … Later that morning and into the afternoon, I had found a shipmate who had been in that part of the Pentagon that had been struck by the plane. He had helped some folks figure out how to get out.”

Walking around the building and seeing where the plane had crashed, Shaffer remembered being shocked and amazed that the building could withstand so much force.

Although Shaffer was able to tell his wife that he was alright before getting off the phone with her earlier, he was unable to get in touch with her again due to the congested phone lines and spent the night in Washington D.C. due to the impassable traffic.

“And everything else that week was a blur,” Shaffer said.

His work changed to focusing on anticipating the next attack and what might happen to the global joint force if they went to war in the Middle East.

“I heard a sense of urgency in the voice of senior leaders that I hadn’t heard so much before,” Shaffer added. The other time he had heard a similar tone from these senior leaders was after the U.S.S. Cole was bombed during a brief refueling stop in Yemen on Oct. 12, 2000. The attack claimed 17 lives and injured nearly 40 others.

Shaffer remembered how the crew fought for several weeks to keep the ship afloat so that it could be towed back to the United States.

“They slept out on the weather decks because the heat was so stifling,” Shaffer explained. “Of course, they would go inside the skin of the ship to do their work. Food was rotting, but there was also a different smell – the smell of human remains that they had to deal with.”

He credited Executive Officer Chris Peterschmidt with rallying the sailors after the attack using a Plan of the Day to focus their minds.

“Once he published that Plan of the Day it was almost as if he could feel the stress level in that ship change. Sailors started to shave again. They started to act like sailors again rather than victims or survivors of a terrorist attack,” Shaffer said.

Those who survived have since battled with Post-Traumatic Stress Disorder and have found it hard to relate to others given what they’ve been through.

“I think a lot of you are together today, for example, because of those experiences that you share,” Shaffer continued. “It’s a vocabulary. It’s a shared perspective on things, whether you are a veteran, whether you are a first responder, whether you’re the family of a veteran or first responder. It’s a conversation you may have had before. It’s a language and a way of thinking about the world that you share.”

From his time entering the U.S. Naval Academy 38 years ago, he said a big thrust was making sure they understood that they were part of a team.

“That sense of team is the thing that got me through (the academy) and I began to understand more and more as I spent more time in the Navy,” Shaffer explained. “It taught me a valuable lesson that I’ve relied on again and again, that sailors, much like soldiers, like airmen, like marines, will do anything no matter how hard it is, no matter how long it takes, as long as they are doing it together.”

Behind those on the front lines there are families who support them, and Shaffer reminded families who have lost loved ones that their sacrifice was not in vain.

“There are heroes among us. There are heroes out there each and every day,” he continued. “There are families of those heroes each and every day that are deprived of their presence, whether it’s because they are deployed or because that firefighter or cop is at work – and they call it work, but it is service – because they never know what is going to happen. They go to work each and every day not knowing if they are going to come back. Those families need our support right now and we need to remember to do that.”

Patriots in the Park is organized by the Friends of Mt. Pisgah State Park in recognition of the men and women who have served the country and have given the ultimate sacrifice. Saturday’s event featured awards, music from the Penn-York Highlanders, a flag raising ceremony by the Troy Veterans Honor Guard, moments of prayer by the Rev. Jennifer Jones, and the National Anthem sung by Colleen Kinney. The Bradford County Library System, Bradford County Veterans Services, Big Brothers Big Sisters, and representative from the 2020 U.S. Census were also on hand.

“The fear that family and friends have for our military personnel is something we carry with us, just as military personnel carry their own demons,” said Friends of Mt. Pisgah State Park President Maren Callahan. “But we hope events like this shows you how much we appreciate you and that we know it was not in vain.”

Addressing the crowd before the awards, state Rep. Tina Pickett (R-110) reflected on being given a tour of the Shanksville field shortly after 9/11 where the hijacked Flight 93 had crashed after passengers fought back against the terrorists on board before it could reach Washington, D.C.

“I was very struck that day by the folks that were with me that they truly believe that was divine intervention,” Pickett explained. “They had a very spiritual feeling about everything that happened that day when that plane went down and they believed the good lord was saying that America will go on, America will get through this and America will understand how important its position is in this world. It was a very special day.”

“I’m thankful every day that I’ve had the chance to serve this country of ours and thank you for reminding me of that today,” Shaffer said.

To the veterans, he added, “Thank you for your service. I know what that means. … I’m humbled to have the opportunity to stand here and talk to you.”


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Waverly man arrested following armed robbery of Athens produce stand

Athens Township police arrested a Barton man for the armed robbery of an Athens business on Sept. 6.

Keith Michael Fellers, 37, has been charged with the third degree felony of robbery; taking property from others by force, the first degree felony of robbery; threat of immediate serious bodily injury, theft by unlawful taking, receiving stolen property and terroristic threats after being identified as the suspect in a robbery that took place at Blair’s Produce Stand in Athens.

According to court documents, police responded to Blair’s Produce Stand around 6:14 p.m. on Sept. 6 after reports of a robbery involving a gun. A witness reported that a male in tan shorts, a dark ball cap and sunglasses, later identified as Fellers, entered the produce stand on foot at approximately 6:02 p.m. that evening and spoke to the cashier about purchasing pumpkins.

Fellers then allegedly put produce in a basket and before leaving told the cashier, “I’m going to rob you, do you know what a 45 is? I have it in my shorts,” according to court documents. Fellers then instructed the cashier to “lay on the ground and don’t do anything stupid, make sure you’re not doing anything stupid” before picking up the business’s money box, telling the cashier “don’t do anything stupid” again and ordering her to lay on the ground and count to 60.

Police arrived at the scene and performed an extensive search for Fellers, but he could not be found. He was later identified utilizing video surveillance from a nearby businesses and other means.

The cash box contained approximately $250 in cash and coins as well as a lost credit card that had been found at the produce stand, according to police.

On Friday, the Athens Township Police Department and Tioga County Sheriff’s Office located and interviewed Fellers, who “gave a full confession to committing the robbery at Blair’s Produce Stand,” according to court records.

Fellers was sent to the Bradford County Correctional Facility on $250,000 bail. A preliminary hearing was scheduled for Sept. 29 before Magisterial District Judge Larry Hurley.


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Top Pa. GOP lawmaker taps politically connected lobbyist to be chief of staff

Spotlight PA is an independent, non-partisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media. Sign up for our free weekly newsletter.

HARRISBURG — Pennsylvania Senate Majority Leader Jake Corman has tapped a top lobbyist with a politically connected Harrisburg firm to serve as his new chief of staff, the latest high-profile example of the cozy relationship between elected officials in the Capitol and special interests trying to influence them.

Corman, a Centre County Republican who is widely considered next in line to ascend to the chamber’s top leadership post, told senators last week in an email that he had hired Krystjan Callahan, a partner at Maverick Strategies, a well-known lobbying firm run by Ray Zaborney, who also runs Corman’s campaigns.

Callahan, 40, was once the top staffer to a Republican leader in the state House of Representatives. For the past five years, however, Callahan has worked for Zaborney, who together with his wife runs a trio of companies known as The Mavericks.

The companies help elect lawmakers and then lobby them once they are in office, a practice that good-government advocates say blurs the line between politics and policy.

Among Zaborney’s marquee clients is Corman, whose campaigns he has run since 2015. Separately, Jen Zaborney, Zaborney’s wife, runs the fundraising arm of The Mavericks and has helped Corman raise millions of dollars over the years.

And last month, The Caucus and Spotlight PA revealed Corman helped raise money at an exclusive event in California for a dark money group launched by Zaborney whose donors — and agenda — are largely a secret. The event coincided with a fundraiser, organized by one of the Maverick firms, that Corman was having at the same resort.

Corman and the group said they did not coordinate the events, which would be illegal.

Corman’s decision to hire Callahan heightens Zaborney’s already vast influence with the Centre County Republican, who is a favorite to take over the top leadership position in the Senate when Senate President Pro Tempore Joe Scarnati (R., Jefferson) retires later this year.

“It’s ripe for undue influence,” said Brian Cullin, chair of Common Cause Pennsylvania. “It is certainly an area that needs to be explored to reform the process. It is problematic to see that level of coziness.”

Jennifer Kocher, Corman’s spokesperson, said Corman hired Callahan because of his qualifications, which she called “second to none.” She said Corman should not be precluded from hiring the best-qualified person simply because of an association with Zaborney.

In an email to Republican senators announcing Callahan’s hiring obtained by The Caucus and Spotlight PA, Corman wrote: “I believe Krystjan’s years of experience in state government will be an asset to me and my staff as we continue to work toward our Caucus goals going into the fall and beyond.”

Callahan, who begins his new job Monday, declined to be interviewed. His salary was not immediately available. Zaborney did not respond to questions.

There has long been a revolving door between the legislature and the lobbying world. But it more often than not has worked the opposite way, with legislative or state government staffers taking their experience and inside knowledge to jobs in private industry or lobbying firms, where they can earn significantly more money.

In Harrisburg, that has given rise to a handful of powerful lobbying firms that trade on having close relationships with the GOP lawmakers who set the legislative agenda.

Aside from Zaborney, dominating that market is Long, Nyquist & Associates. The firm is named for Mike Long, the Senate’s onetime top Republican staffer and strategist, and Todd Nyquist, who served as chief of staff to Scarnati and describes himself on the firm’s website as Scarnati’s “alter ego.”

Like Zaborney’s companies, Long, Nyquist operates both a campaign and a lobbying arm, helping to elect candidates or reelect sitting officials and then lobbying them once they are in office.

Few other firms in Harrisburg offer both political and lobbying services. The DT Firm, run by Dave Thomas, formerly a top Republican lawyer in the Senate, recently added some political work to its company portfolio, which appears to still largely focus on lobbying.

Zaborney and Mike Long have long argued their work is legal and protected by the First Amendment. But critics believe their business model perpetuates a culture of undue access and favoritism. Several lawmakers have, over the years, attempted to ban the dual practice but have not succeeded.

An analysis of campaign finance records shows that firms run by the Zaborneys and Long and Nyquist have together been paid at least $26.3 million since 2011 by legislative candidates, the state Republican party, GOP legislative campaign committees, congressional candidates, and various political action committees.

By contrast, the DT Firm has been paid just under $300,000 for campaign work, including for Republican leaders in both the House and Senate.

Campaign committees for all three firms’ lobbying arms, meanwhile, have given more than $900,000 to GOP legislative leaders and others during that same time frame, the records show.

Because of Pennsylvania’s weak lobbying disclosure laws, it is impossible to know which lawmakers the firms have lobbied, or on what issues. Unlike other states, Pennsylvania only requires that private interests, and their lobbyists, report the total amount of money they spent on lobbying activities, without having to provide any detail.

To be sure, Zaborney, Long, Nyquist, and Thomas’ firms represent a range of clients, from big energy to casinos to unions to the Catholic Church.

Callahan, the onetime top aide to former Republican House Speaker Mike Turzai, was credited in late 2017 with helping persuade his former boss to support a vast expansion of gambling in the state, including legalizing and regulating slots-like machines called video gaming terminals, or VGTs.

Zaborney’s firm, and by extension Callahan, represented the pro-VGT interests. Long, Nyquist represented a key maker and distributor of so-called “games of skill,” which compete with VGT companies and have led efforts to tamp down VGT expansion.

In the end, the legislature only approved VGTs in truck stops. But VGT companies and their advocates have kept up their campaign since then, pushing to allow the terminals in bars, taverns, social clubs, and other venues with a liquor license. Such a move would vastly expand their reach and result in millions in profit.

This past summer, Republicans who control the Senate mounted a feverish, behind-the-scenes push for more VGT terminals. Corman became the effort’s public face.

The campaign ultimately failed but could likely be revived this fall, as the legislature grapples with ways to raise new revenue to offset the economic harm brought on by the pandemic.

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