In a stunning move, the Berks County Commissioners are discussing their own plan to reopen Berks County; a plan that will apparently not include Governor Wolf.
The legal question is, assuming, arguendo, that the Governor’s order is lawful, can County Commissioners enter an order that would be contrary to the Governor’s order and reopen the county?
The answer is “no,” not directly. However, the County Commissioners could take action to coordinate with local municipalities and achieve that result.
Pennsylvania has three levels of government- State, County and Municipal. In an earlier post, we had talked about the three kinds of municipalities: cities, boroughs and townships.
The Pennsylvania Constitution and related statutes give moderately strong powers to the state. However state powers are supposed to be limited and the state should not be acting in areas where they have not been given specific authority to act. The Constitution and statutes then give municipalities the broad ability to act in areas in which the state has not claimed exclusive authority. County government only actually has limited and specific authority- the majority of a County Government’s powers are laid out in Title 16 of the Pennsylvania Statutes.
In general a county government can:
- Run a Courthouse and/or County Services Building;
- Run a county park system;
- Maintain county roads;
- Establish County Departments such as Children and Youth Services, The Office of Aging, the Tax Claim Bureau, etc.;
- Run a Prison; and,
- Try to coordinate actions between county municipalities.
You will notice that County Government does not have emergency powers or even the power to regulate behavior. A county, for example, cannot write a countywide noise ordinance or regulate firearms and ammunition. A county cannot determine a countywide speed limit. A county cannot regulate sanitation at businesses.
However, local municipalities could theoretically issue an ordinance contrary to the Governor’s order. As mentioned in an earlier blog posts, municipalities have their own emergency powers. The Pennsylvania Constitution, Article 1, Section 2 states:
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
Article 1, Section 25 goes on to state:
To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Pennsylvania also has allowed Home Rule municipalities under Article 9, Section 2 of the Pennsylvania Constitution. “Home rule” municipalities are essentially allowed to ignore the state statutes about organizing a government and create a government specifically designed for them. Home Rule municipalities are allowed to pass ordinances in almost unlimited areas with only about 10 areas of exceptions. See 53 Pa.C.S.A. § 2962. Home Rule Municipalities may regulate emergencies and also sanitation at businesses. Home Rule Municipalities can also regulate use of their own parks, public areas and streets.
Non-Home Rule Municipalities have more limited powers. There are about a dozen types of municipalities in Pennsylvania and there would have to be an individual analysis of each type of municipality to determine their actual powers. However, generally even non-home rule municipalities can pass ordinances governing emergencies and sanitation.
Therefore there is a very good argument that municipalities could lawfully pass an ordinance contrary to the Governors and reopen businesses earlier than the Governor would otherwise order. A County Government could coordinate with the municipalities in their county to pass identical reopening ordinances. It will be much harder for the Governor of Pennsylvania to block or oppose a united group of municipalities. Counties also have full time solicitors which could provide legal support to the municipalities.
Pennsylvania also does not have a “Supremacy Clause” in its Constitution. In other words, there is no law that says that the state government will automatically win a dispute over laws with a municipality. The Governor’s order does not automatically trump a local ordinance. Both the state and local government would have a chance to argue their cases in court, if things ever reach that point.
It is also important to discuss enforcement of the Governor’s order. The Governor’s order is only enforceable by Police Officers and by certain Health Department Officers. The overwhelming majority of police officers in Pennsylvania are municipal police officers. That means a municipality could direct their local municipal police not to enforce the Governor’s ordinance.
However, the State Police fall under the state government and the Governor can make policy for the State Police. A county or municipality cannot direct the State Police as to what to do. However the State Police are required to take guidance from the local district attorney. If the local District Attorney directs the State Police not to enforce the Governor’s order they have to consider it. Additionally, all ordinance prosecutions in Pennsylvania can be overseen by the county District Attorney. A County District Attorney could withdraw any violations filed by State Police.
Could the Governor or Attorney general file a legal action to block municipal ordinance allowing reopening? It’s happened before. See Com., Office of Atty. Gen., ex rel. Kelly v. Packer Twp., 49 A.3d 495 (Pa. Commw. Ct. 2012). In that case, the municipality actually won a couple victories in court, but ultimately backed down and rescinded the challenged ordinance.
Pennsylvania is a very diverse state. Central Pennsylvania is very different than Philadelphia or Pittsburgh. Towanda and Harrisburg are worlds apart. Even the counties near Philadelphia are very different from the city in terms of population density, resources, availability of health care and public transportation. A one size fits all approach or painting an entire region with a single label approach will never work. COVID-19 cases in the city of Reading, should not dictate the next several months of life in Kutztown.
Shouldn’t local municipalities be allowed to become educated as to their own risks and needs and pass a reopening plan that will work for them? In short, you should be able to decide what precautions will work best for your town, borough or city.
We strongly encourage you to contact your local municipal and county government and encourage them to take back control from the Governor.
If you or someone you know has your rights violated by Governor Wolf’s Order, contact us today to discuss your rights!