“We haven't seen a tyrant like this since George III.”

That salvo, directed at Gov. Tom Wolf, was launched Thursday by Butler attorney Tom King as he filed a federal lawsuit challenging the state's emergency orders during the coronavirus pandemic.

The suit was filed in the U.S. District Court for the Western District of Pennsylvania on behalf of Butler and three other counties, several state and federal lawmakers, three hair salons, a furniture store, a farmer, two drive-ins and a harness driver.

In addition to the governor, state Secretary of Health Dr. Rachel Levine is named as a defendant.

The suit is a part of a two-pronged effort to essentially nullify the Wolf administration's reaction to COVID-19, including business closure and stay-at-home orders, and its plan to reopen Pennsylvania.

In addition to the lawsuit and also on behalf of some of the same plaintiffs, King plans to file an amicus curiae — “friend of the court” — brief in the U.S. Supreme Court.

That brief, which is expected to be filed next, supports another group of business owners and a Republican state House candidate in Allegheny County, who mounted their own challenge of Wolf's executive orders.

The group, led by Pennsylvania House candidate Danny DeVito, appealed to the U.S. Supreme Court last week after the Pennsylvania Supreme Court rejected its challenge to Wolf's stay-at-home order closing non-life-sustaining businesses.

At the same time they filed their appeal, the group's attorney — Marc Scaringi — filed a separate request to the same court asking for an immediate stay of the governor's orders. If granted, the stay would have at once reversed Wolf's orders and reopened businesses, according to King.

U.S. Supreme Court Justice Samuel Alito denied the group's application for a stay late Wednesday. However, the group's initial appeal of the state supreme court decision is still pending before the U.S. Supreme Court.

“Our lawsuit addresses federal constitutional violations, and we did it that way on purpose,” King said Thursday, “because we have no interest in being in the state court system, back in front of the state Supreme Court.”

Straight to the federal level

The state's high court already ruled in favor of Wolf in two previous suits — including the one at issue in the pending amicus brief — that challenged the governor's authority to shutter businesses deemed nonessential.

“We don't want to be there,” King said, referring to the state's majority-Democrat high court, “because that court is heavily weighed politically in favor of the governor.”

The lawsuit argues the governor's orders violate the plaintiffs' First Amendment rights to free speech, assembly and association; their Fifth Amendment rights that prohibit taking anything from a citizen without due process; and their 14th Amendment rights to equal protection under the law.

Individual plaintiffs include Butler, Greene, Washington and Fayette counties; U.S. Rep. Mike Kelly; and state Reps. Marci Mustello, Daryl Metcalfe and Tim Bonner.

Also represented are Nancy and Mike Gifford, owners of Double Image Styling Salon of Butler Township and Prima Capelli Salon of Butler; Cathy Hoskins, owner of Classy Cuts Hair Salon of Greene County; and R.W. McDonald & Sons of Butler.

Other plaintiffs include Paul Crawford, owner of Marigold Farms in Washington County; and Steven Schoeffel, a harness horse trainer and driver at the Meadows Racetrack in Washington County; and Starlight Drive-In of Butler and Skyview Drive-In of Greene County.

King said the plaintiffs are not seeking monetary damages.

Breakdown of counts included in the lawsuit

The lawsuit lays out five counts of alleged constitutional wrongdoing by the Wolf administration.

In Count I, the suit argues that the defendants violated the taking clause that “provides that private property shall not be taken for public use, without just compensation.”

Specifically, Wolf's business shutdown “worked to deprive numerous residents, including some of the plaintiff herein, of their property interests.”

In Count II, the suit contends Wolf's waiver process, which followed the business closure order, was a substantive due process violation.

“Thousands of waivers have been denied or gone unanswered without hearings, and no appeals process (have) been provided for,” according to the suit.

The plaintiffs have a right to protection from arbitrary and capricious action of the government, King said.

As evidence of that claim, the suit cited the waiver the governor's family-owned business, Wolf Wood Products, a cabinet maker, was granted early on in the process.

The waiver was revoked, the suit said, “after the waiver was widely publicized in newspapers of general circulation in this commonwealth, and which business thereafter continued to operate despite the rescinding of said waiver following great publicity regarding the same.”

The suit also referred to the defendants' phased reopening plan that allowed some counties to reopen, but not the plaintiffs' counties.

“Four of Butler County's neighboring counties with similar population characteristic,” the suit said, “will be allowed to partially open as of May 8, 2020, but Butler County cannot reopen as the Business Shutdown Order will remain in effect.”

The suit also noted that West Virginia and Ohio, which either border or are in close proximity to Greene and Washington counties, “have either reopened completely or have reopened in a disparate manner with respect to the right as of the citizens of said counties in Pennsylvania.”

The suit also cited a “data-driven tool” created at Carnegie Mellon University that was used to devise the reopening plan.

“It's a tool that nobody ever approved, nobody investigated, nobody knows what the hell the data is that goes into it,” King said in discussing the suit. “It might be a fine device but the Legislature never adopted it, never approved it.”

In Count III, the suit again addressed the waiver process and how it violated procedural due process of some of the plaintiffs.

The waivers, the suit said, “do not permit evaluation by a neutral arbitrator.”

Also, according to the filing, the waiver determination does not provide for an opportunity to be heard. Nor does it offer an opportunity to present witnesses or permit an opportunity to cross-examine witnesses. The lawsuit further contends the process neither provides for a reasoned decision, nor an opportunity for an appeal.

In Count IV, the suit called the administration's classifying businesses as “life-sustaining” and non-life sustaining” as “arbitrary and irrational given that there has never been such a classification for business activity and the Defendant's attempts to classify such categories as nothing more than ipse dixit.”

In legal terms, ipse dixit means that the only proof of the fact is that that person said it.

Additionally, the suit noted, the “easing of (stay at home) restrictions in some counties, and not in other counties, is not rational and is an arbitrary exercise of Defendant Wolf's executive power.”

In Count V, the suit claims the defendants violated the First Amendment, in part, by restricting the limit of public gatherings in the business shutdown order to 10 people, and in the next reopening phase to 25 people.

King, in discussing the suit, referred to the lawmakers named as plaintiffs.

“They're all running for office but they're restricted with regard to the stay at home order, with respect to going door to door to campaign,” he said. “They're restricted with the exercise of their free speech rights to hold assemblies because of the number of people who can be in a building are limited.”

But King also acknowledged that those legislators primarily joined in the suit “to show their support for the businesses and the counties.”

He said he hoped the suit would soon be heard by a judge. Once the suit is filed, a judge will be assigned to the case. The assignment will be made at random.

The suit, he said, came about following a call Friday night by Butler County Commissioners Leslie Osche and Kim Geyer.

The two commissioners, he said, “wanted to discuss the ability of Butler County and its citizens to seek redress in the courts with regard to what they consider illegal, unconstitutional orders affecting Butler County and its citizens.”

After more than 100 phone conversations over the weekend with lawmakers, businesses, citizens and others, he and attorneys Tom Breth and Ron Elliott drafted the suit.