Could governors just be playing the time game when it comes to executive order mandates?

November 11 – The Pennsylvania Commonwealth Court ruled yesterday that the Department of Health’s mask mandate for school districts didn’t comply with state law.

That should be the end of it, right?


Well, not exactly. The decision is now on appeal.

Attorney Clint Barkdoll, Pat Ryan and Michele Jansen discussed the nuances of these court cases this morning during the Big Talk on First News.

Barkdoll said, “It is and this is one of the problems in these kind of cases when you’re on tight deadlines and tight timelines. Remember early this week, Governor Wolf before this decision was issued said the mask mandate would be lifted January 17 anyway, so even though the Commonwealth Court made this ruling, the governor’s already said they’re going to appeal this to the PA Supreme Court. They actually would have up to 30 days to still do that. As soon as they file the appeal, the Commonwealth Court decision is suspended, which means that the mask mandate effectively stays in place.”

The problem with timing is that if they file the appeal in a few weeks, the PA Supreme Court may not even hear it. They are not required to take the case. They pick and choose what they hear.

If the appeal gets filed in a few weeks, we may not even find out what the Supreme Court is doing with the case for weeks later. In the meantime, January 17 will come, the mandate will be lifted anyway and then it’s likely the Supreme Court will find the appeal moot.

Barkdoll said, “Effectively what Wolf is going to be able to do is buy himself about nine more weeks of this and essentially skirting the Commonwealth Court decision. It’s a real problem in the timing of the way these things work. I still give a lot of credit to Jesse Topper and Jake Corman and these plaintiffs because even if this case doesn’t effectively lift the mandate, it still creates precedent. So in the future, a governor or a secretary of health would really have to pause if they tried to implement such a mandate again and in that respect, it’s definitely a win for the plaintiffs who brought this case.”

Jansen pointed out, “That would be true if these people had any scruples, but they don’t. They don’t. You would think, yes, you would give them pause that this has been declared, it’s not constitutional, you can’t do this, but that doesn’t stop the president of the United States. He even admitted some of the things he’s doing, he knows it’s unconstitutional. He knows it’s going to get challenged, which by the way, sir, you took an oath to uphold the constitution. I don’t understand why that’s not an impeachable offense, but they don’t care. They don’t care that there’s precedent. They will use and manipulate the system as long as it buys them the time that they want to get what they want done. We see it all over the place in case after case. Maybe we need to change something about the way these court appeals work when you have a time pressing issue. Because in my opinion, children are being harmed and damaged in real time. They don’t have this many weeks to wait and then, oh it’s going to get lifted anyway. They’re being actively harmed right now so why in the world do we have a system where it just automatically goes into a stay even though four to one, these judges ruled this was unconstitutional. There is harm being done.”

Barkdoll said, “What’s interesting about this is and I don’t know if it’s Tom Wolf’s just dumb luck or if this is deliberate strategy, but when you go back to last year, remember when we were in the thick of the COVID shut downs and all the controversies about that. Remember Tom Wolf then eventually came out and said they were lifting all of these shut down orders and it was within days that that federal court out of Pittsburg ruled that the shut-down orders were unconstitutional and it feels very much like this that a court comes in, nullifies the executive order, but by the time it’s nullified, the executive order is about to be lifted anyway. It does make you wonder, is he deliberately playing time issues with all of this, knowing that these things may not stand up, but the way it plays out, it effectively remains in place.”

The PA Supreme Court could take this case on and they could overrule the Commonwealth Court.

Barkdoll said, “But I think the reality is none of that will happen before January 17 when this is otherwise going to be lifted anyway.”

Jansen asked, “Is there any way that legislators can look at this pattern of behavior and say this is abuse of power and we need to do something to penalize them when it feels like they’re obviously playing the system to get what they want.”

Ryan added, “With children, we’ve talked about this on the law hour before, when children are in harm’s way sometimes the judge or sometimes the people that are handling the case move it up faster because children are at risk. How about that?”

Barkdoll said, “In Pennsylvania on child custody cases there are it’s something called fast track appeals that they are given expedited treatment, but unfortunately or not all of these what we’ll call regular cases, whether they’re COVID cases or cases in the criminal justice system or the civil system, all of these appellate rules are prescribed within the Rules of Court. They’ve been in place for decades if not centuries. I don’t think you’re going to see a change, although, as we’re discussing, you’re seeing in the context of these COVID orders how it might very well get abused.”

Yesterday in Texas a similar thing occurred. A court ruled that Governor Greg Abbott’s executive order banning the ability of school districts to issue mask mandates was also illegal.

Barkdoll said, “It’s looking like the same process in a mirror way is going to play out down there. Even though the court has said that was illegal, he can now appeal that and during the appeal his ban on a school district’s ability to do a mask mandate stays in place. My point there is this isn’t unique to Pennsylvania. These timelines and rules are very similar in every state in the country.”

Jansen added, “I just worry that everyone’s going to learn how to do this and they’re just going to be abusing it left and right and again we don’t have good rule of law, we don’t have consistency. We can’t feel like we can trust anything that’s going on.”