Attorneys for Gov. Tom Wolf and state Secretary of Health Dr. Rachel Levine have responded to a federal complaint filed by 17 plaintiffs, including Butler and three other counties, over the state's response to the coronavirus pandemic.

The state attorney general's office in the filing Friday answers the May 7 lawsuit in which the plaintiffs seek declaratory judgments, claiming Wolf's business shutdown orders violated their constitutional rights.

In the response, Deputy Attorney General Karen Romano denied the claims listed in the complaint that was filed in U.S. District Court for the Western District of Pennsylvania, and offered 14 affirmative defenses, among which are the following:

- The complaint is barred by the doctrine of qualified immunity.

- The complaint is barred by 11th Amendment immunity.

- The governor's order was a proper use of his police powers.

- The defendants did not deprive the plaintiffs of any constitutional right.

The state's 23-page answer follows a May 28 order by U.S. District Judge William Stickman IV that granted the plaintiffs an expedient hearing on three of five claims in the complaint.

Joining Butler, Greene, Fayette and Washington counties in the suit were four Republican lawmakers and several small businesses.

Tom King, of the firm Dillon McCandless King Coulter & Graham in Butler, who is the lead attorney for the plaintiffs, listed five counts by which the governor's orders violated certain constitutional rights.

In Count I, the suit argues that Wolf's business shutdown order violated the Fifth Amendment's taking clause that “provides that private property shall not be taken for public use, without just compensation.”

The state, in its response, denied the allegations.

In Count II, the plaintiffs contend Wolf's decision closing “non-life sustaining” businesses and the subsequent waiver process was arbitrary, capricious and interfered with “the concept of ordered liberty.”

Additionally, the orders deprived plaintiffs of their “right to pursue lawful employment,” according to the suit.

The state denied those allegations. Romano, in her answer, also referred to a similar lawsuit that the state successfully defended in the Pennsylvania Supreme Court.

The state's high court in its April 13 split decision, denied an extraordinary relief petition that sought to quash the governor's business shutdown order.

“By way of further response,” Romano said in her response Friday, “a waiver process was established to private businesses with an opportunity to challenge the placement of its business on the non-life sustaining list.”

In Count III, the plaintiffs further addressed the business waiver system and how it violates procedural due process of some plaintiffs.

The state denied those allegations in its response.

In Count IV, the suit called the administration's classifying some businesses as “life-sustaining” and others as “non-life sustaining” “arbitrary and irrational.”

It also calls the state's reopening plan unfair, in part, because it treats “similarly situated counties” unequally.

Again, the state denied those allegations in its response.

In Count V, the suit claims the defendants violated the First Amendment by limiting public gatherings, thereby imposing undue burden on plaintiff's rights to attend public meetings, religious worship, political events and other activities.

The state denied those allegations in its response.

Stickman, in his prior order, denied the plaintiff's motion of a speedy hearing request for counts I and III, but granted the expedited review for counts II, IV and V.

Romano, in addition to the denials in the complaint, also raised the affirmative defenses in asking the court to reject the complaint.

An affirmative defense is akin to claiming self-defense in a criminal case, in which defendants claim extenuating factors were present that make their actions legal.

The doctrine of qualified immunity, as cited in the first affirmative defense, shields government officials from being sued for actions performed in their official capacity, except when officials violated a “clearly established” federal law or constitutional rights.

Another affirmative defense contends the plaintiffs' claims are prohibited by the 11th Amendment immunity.

That provision, also known as sovereign state immunity, restricts individuals from bringing suits against states in federal court.

In several other affirmative defenses, Romano cited the April 13 state supreme court ruling. The petitioners in that case, Danny DeVito, a Republican state House candidate in Allegheny County, and a group of business owners, have appealed the ruling to the U.S. Supreme Court, which has not decided if it will take up the case.

One of those defenses argues the “temporary closure of Plaintiff's physical business locations was a proper exercise of Governor Wolf's police powers.”

The state's highest court, in its opinion, wrote, “Faced with protecting the health and lives of 12.8 million Pennsylvania residents, we find that the impact of the closure of these businesses caused by the exercise of police power is not unduly oppressive. The protection of the lives and health of millions of Pennsylvania residents is the sine qua non of a proper exercise of police power.”

Another affirmative defense asserts the temporary closure of the plaintiffs' business locations did not violate their constitutional rights.

The state supreme court found Wolf's shutdown resulted in only a temporary loss of the petitioners' business premises, and his reason for the executive order was a “classic example of the use of the police power,” namely to protect the lives and health of the public.

Romano, in her answer, also argued there was no First Amendment violation “because the restrictions in place are content-neutral time, place and manner restrictions that serve a legitimate government interest and do not unreasonably limit alternative avenues of communication.”

The state supreme court in the DeVito case ruled that free speech and assembly rights “are not absolute,” and that Wolf's orders do not prevent supporters from talking or meeting “by telephone, video-conferencing or online through websites and otherwise.”

In another affirmative defense, Romano argued the plaintiffs' equal protection rights were not violated “because Plaintiffs are not similarly situated to the life-sustaining businesses within the same county that were permitted to remain open or to businesses in neighboring counties or states who are subject to different closure restrictions.”

Stickman, in a previous order, set a July 17 declaratory judgment hearing for three of the claims in the plaintiff's suit.