COMMONWEALTH COURT DECISION ON SCHOOL MASKING ORDER

Today, the Pennsylvania Commonwealth Court issued a monumental decision impacting two cases challenging Acting Secretary of Health Alison Beam’s “Order of the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities” (Masking Order). In the first case, Jacob Doyle Corman, III, individually and as a parent of two minor school children; et al. v. Acting Secretary of the Pennsylvania Department of Health, 294 M.D. 2021 (November 10, 2021), the Court ultimately found that the Masking Order was void ab initio, meaning it was void from the start and had no legal effect. Then citing to the Corman decision finding the Masking Order void ab initio, the Court dismissed J.W., individually and o/b/o minor children C.W., D.W. and M.W.; et al. v. Acting Secretary of the Pennsylvania Department of Health, Alison Beam, 297 M.D. 2021 (November 10, 2021) as moot.

The 31-page majority opinion in Corman begins by outlining the Masking Order, the procedural background of the case, and the existing law in this field governing the process for promulgation of regulations by Commonwealth agencies. The Court quickly determines that because the Governor did not issue a new declaration of disaster emergency, and the Acting Secretary indisputably did not comply with the requirements of the Commonwealth Documents Law and Regulatory Review Act,

[t]he pertinent question herein is whether the Masking Order represents a rule or regulation subject to the formal requirements for regulatory rulemaking and, if so, whether the Acting Secretary was authorized by statute or regulation to promulgate the Masking Order without complying with the formal requirements of the Commonwealth Documents Law and Regulatory Review Act.

The Court then states that

Because the Masking Order herein is intended to, and actually does, dictate citizens’ standards of conduct within Pennsylvania’s schools, we need not belabor an analysis of whether the Masking Order represents simply a general statement of policy as opposed to a regulation. The language of the Masking Order clearly mandates that those inside School Entities must wear masks and binds those School Entities and those attending or visiting. The Order does not guide or provide an interpretation of a statute, but ratherm requires that ‘[e]ach teacher, child/student, staff, or visitor working, attending, or visiting a School Entity shall wear a face covering indoors, regardless of vaccination status[.]” Masking Order at 4. There is no palatable argument that this Order is mere guidance. (emphasis added)

After quickly reviewing the test to determine whether an agency order constitutes a regulation and providing support for its finding that the Masking Order did constitute a regulation, the Court moves on to evaluating the Acting Secretary’s authority under the Disease Control Law. Appropriately, the Court continues to reject the arguments advanced by the government

[W]hile Section 5 of the Disease Control Law does grant the authority to ‘carry out the appropriate control measures’ to control diseases, as [the Acting Secretary] suggests, it does not provide the Acting Secretary with the blanket authority to create new rules and regulations out of whole cloth provided they are related in some way to control of disease or can otherwise be characterized as disease control measures. Instead, Section 5 limits the ‘other control measures’ available to Respondent to those permitted under existing rules and regulations. Accordingly, this section of the Disease Control Law does not, on its own, provide the Acting Secretary with the authority to impose the Masking Order’s non-isolation, non-quarantine control measure of requiring all individuals to wear face masks or face coverings inside Pennsylvania’s School Entities to combat reports of COVID-19.

In turning then to the Administrative Code, the Court states

These Administrative Code subsections make no reference whatsoever to disease control measure of any kind; nothing in these subsections authorizes the promulgation of rules or regulations pursuant to the duties listed therein without compliance with established rulemaking protocols. It goes without saying that the Department of Health must carry out these duties within the constraints of the law and does not have carte blanche authority to impose whatever disease control measure the Department of Health sees fit to implement without regard for the procedures for promulgating rules and regulations, expedited or otherwise.

Next, the Court similarly rejects arguments attempting to cite authority for the Masking Order under pre-existing Department of Health regulations, because the Order

[C]annot be said to be in furtherance of isolation or surveillance of animals or individuals with a communicable disease or the surveillance, segregation, or quarantine of contacts of a person or an animal with a communicable disease or infection…Mask wearing is not disease surveillance. (emphasis added)

The Court concludes that

[I]n the absence of a declared emergency, and where such orders are not otherwise authorized by statute or regulation, the Governor and the executive agencies of the Commonwealth must follow the prescribed procedures for rulemaking set forth in the Commonwealth Documents Law and the Regulatory Review Act. ¶ The instant matter presents such a scenario. The Governor did not declare a new disaster emergency following the General Assembly’s approval of the Concurrent Resolution that terminated the Disaster Proclamation. Instead the Acting Secretary issued the Masking Order, which is a regulation, without complying with the mandatory rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act. In so doing, Acting Secretary attempted to issue her own emergency declaration about the dangers of COVID-19 and mutations thereof, including the Delta variant. See Masking Order at 1. The purported authority cited by the Acting Secretary in the Masking Order does not convey the authority required to promulgate a new regulation without compliance with the formal rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act. Therefore, because Acting Secretary did not comply with the requirements of the Commonwealth Documents Law and the Regulatory Review Act, the Masking Order is void ab initio.

In deciding this case on the question of whether the Masking Order was a rule or regulation requiring use of the formal rulemaking procedure, the Court declined to answer the question of whether the Order violated the non-delegation doctrine of the Pennsylvania Constitution.

While this outcome is what many of our readers were hoping for, take note that this was not a unanimous decision. Although this year’s election has just passed, there will be more and it is important to remain vigilant and make sure that you and yours are getting out to vote in each and every election.

If you or someone you know believes that your rights have been violated, contact us today to speak with an attorney about your rights and remedies.