A federal lawsuit led by Butler County challenging Gov. Tom Wolf's business shutdown order over the coronavirus pandemic should be dismissed because the state's reopening plan has negated the plaintiff's claims, the governor argued in court papers last week.

Additionally, Wolf's order was a proper use of his police powers and did not violate any constitutional rights, according to his attorneys.

The latest legal filings Thursday come just days before Friday's scheduled declaratory judgment hearing in the case in U.S. District Court for the Western District of Pennsylvania.

The suit was filed May 7 on behalf of Butler, Fayette, Greene and Washington counties, four Republican lawmakers and several small businesses, claiming the actions of Wolf and state Secretary of Health Dr. Rachel Levine were unconstitutional.

U.S. District Judge William Stickman IV, who is presiding over the case, previously granted the plaintiffs an expedited hearing on their claims.

Those claims, however, “have been mooted as a result of the commonwealth's reopening, requiring dismissal,” Karen Romano, chief deputy attorney general, wrote in the defendants' brief opposing the plaintiff's complaint for declaratory judgment.

The brief noted that all 67 counties have been moved into the “green” phase, the least restrictive of the state's color-coded reopening plan.

Under green-phase guidelines, gatherings of up to 250 people are permitted, including concerts, festivals, conferences, sporting events, movies or performances.

Also, most businesses serving the public in a building or defined area can operate at up to 50 percent or 75 percent maximum capacity, depending on the type of business, while also enforcing social distancing requirements.

“Currently, all counties are in the 'green' phase, and all businesses are permitted to open,” Romano said in the brief. “Moreover, it is unknown whether the facts as pled will exist again, considering the unprecedented nature of the pandemic, and the defendants' response.

“Thus, a declaratory judgment on this record amounts to nothing more than either an adjudication of past conduct or an advisory opinion on hypothetical future facts.”

And because a declaratory judgment must be “based on a real and immediate injury,” the brief asserted, “and because the harms alleged by plaintiffs have been rendered moot by the transition to the 'green' phase, Plaintiffs' request for a declaratory judgment should be denied.”

The state in the brief also argued that Wolf's executive orders were a proper use of his police powers in responding to states of emergencies.

Wolf on March 6 issued a disaster emergency declaration following the state's first COVID-19 cases.

In signing the declaration, the governor invoked Pennsylvania's emergency management law that grants him broad powers to deal with a health crisis or disaster.

“In striking the proper balance, police powers can be used whenever reasonably required for the safety of the public under the circumstances,” Romano wrote. “Plaintiffs propose that their physical locations should have remained open while employing unspecified COVID-19 precautions.

“But even assuming plaintiffs' proposals could be discerned and were reasonable, so was the governor's response.”

Romano noted that Pennsylvania's response was similar to almost every other state, with so-called “nonessential” businesses ordered closed to enforce social distancing.

“Plaintiffs cannot show that the business closure orders” were an unreasonable exercise of the commonwealth's police powers,” the brief said, “much less that their rights have been violated.”

The brief argued that the business shutdown orders do not violate the First Amendment because they are “content-neutral” and “issued in furtherance of a substantial government interest.”

Romano also denied the state violated the 14th Amendment's equal protection clause.

According to the plaintiffs' suit, Wolf's classification of “life sustaining” and “non-life sustaining” businesses was “arbitrary and irrational, and the governor's reopening plan, which eased restrictions on a county by county basis, was “arbitrary and irrational.”

However, the state brief noted that the U.S. Constitution does not require that state officials treat entities the same when acting on health and safety concerns.

“Temporarily closing certain physical locations in order to protect lives is certainly not invidious or wholly arbitrary,” the brief said, “the health and survival of (12.8 million Pennsylvanians) is the most compelling of state interests.

“And the classifications and distinctions made to protect our citizenry are absolutely essential — not just reasonably related — to achieving that most compelling of state interests.”

Romano and Tom King, of the firm Dillon McCandless King Coulter & Graham in Butler, who is the lead attorney for the plaintiffs, also Thursday submitted their witnesses' direct testimony via written affidavits.

The state has three witnesses and the plaintiffs have 15 witnesses.

At Friday's hearing, each side will have the opportunity to cross-examine the other's witnesses. Additionally, there will be oral arguments from King in support of and from Romano in opposition to the complaint for declaratory judgment.

Still at issue, however, is the manner in which the hearing will be held. The plaintiffs want both sides to attend the hearing in person at the federal courthouse in Pittsburgh. The defendants want to appear via teleconference.