Attorneys for Gov. Tom Wolf and state Secretary of Health Dr. Rachel Levine have asked that a declaratory judgment in a federal lawsuit led by Butler County challenging the governor's business shutdown order over the coronavirus pandemic be denied.

Citing that the state has “reopened,” according to a brief filed with the court Wednesday, Wolf and Levine argued that any claim that the orders were unconstitutional have been essentially rendered moot.

“The straightforward issue this court must decide is whether there is a current or ongoing violation of plaintiffs' constitutional rights. There is not,” the brief said.

“In the absence of such a violation, plaintiffs have failed to meet their burden and their substantive due process, equal protection, and First Amendment claims must be dismissed and their request for a declaratory judgment denied.”

The suit, filed May 7 on behalf of Butler, Fayette, Greene and Washington counties, four Republican lawmakers and several small businesses, claims the actions of Wolf and Levine violated some constitutional rights of the plaintiffs.

The suit is not seeking monetary damages.

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

The latest legal filing followed a declaratory judgment hearing last month during which the plaintiffs argued they were discriminated against by Wolf's orders.

Owners of businesses that were deemed “non-life sustaining” under the governor's orders testified that their equal protection rights were violated because some were allowed to remain open — either by being designated as “essential” or being granted waivers — or reopened sooner.

The political candidates testified their freedom of speech rights were violated because they were unable to make door-to-door visits or hold campaign rallies due to the stay-at-home orders and restrictions on indoor and outdoor gatherings.

But in the defendants' brief, Karen Romano, chief deputy attorney general, noted that as of July 3, all 67 counties in Pennsylvania were in the “green” phase of Wolf's reopening plan.

The “green” phase is 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.

Additionally, Romano noted in the brief that the state's stay-at-home and business closure orders are suspended.

“Despite this substantial progress,” she wrote, “Plaintiffs present this court with tales of what once was and what may never be, all the while claiming their constitutional rights are being trampled. But their focus is misdirected.

“Whether plaintiffs' rights were violated in the past, which defendants deny, or whether they could ever conceivably be violated in the future, are not issues to be decided in this declaratory judgment action.”

The defendants, in the brief, also dismissed the plaintiffs' contention that Wolf could restore the prior restrictions if he deemed it warranted.

“But there is no support for this argument,” the brief said. “Indeed, a review of the actions taken by the defendants since moving counties into the 'yellow' phase makes it clear that the administration is determined to move forward rather than back.”

On May 15, Romano pointed out, Butler, Fayette, Greene and Washington counties were moved from the “red” to the “yellow” phase. Those counties were moved to the “green” phase June 5.

Romano cited the July 22 testimony from Sam Robinson, Wolf's deputy chief of staff, who said at the hearing that “we do not have specific plans to reinstate those phases of the reopening at this time and it's not been discussed.”

According to the brief, “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. Neither is proper.”

The brief also argued that Wolf's executive orders were an appropriate use of his emergency powers, and that the actions were taken to protect the public safety, and did not violate plaintiffs' due process.

“The administration was “doing (its) best to create a response to it that was understandable by the public ... given the criticality of preventing people from moving around and spreading the disease in the early days of the virus,” the brief said, quoting Robinson's testimony.

“While the Business Closure Orders certainly had a detrimental effect on Pennsylvania's economy,” the brief said, “it was the product of a necessary, calculated decision given the grave danger that the state faced from COVID-19.”

The brief noted that the business closings were only temporary, and there was no equal protection violation.

“Based upon the advice and recommendation of numerous medical and economic development experts, defendants adopted a plan that allowed counties to reopen as it was safe to do so,” the brief said.

“The same criteria was used in making reopening decisions for each county, and the same restrictions apply to all non-life-sustaining businesses and public gatherings as their resident counties move through the phases of the reopening plan.”

Plaintiffs' First Amendment rights also were not violated, according to the brief which referenced U.S. Supreme Court precedent that says state governments may place reasonable restrictions on the time, place and manner of individual expression.

While lawmakers may have been restricted from campaigning door to door, they had other ways to have their voices heard.

“Plaintiffs admit they utilize web pages and social media to communicate with voters which, as the Pennsylvania Supreme Court noted, 'has become the lifeblood for the exercise of First Amendment rights,'” the brief said.

“Likewise, the business and county plaintiffs acknowledged they could communicate via alternative means.”

The plaintiff's lead attorney, Tom King of the firm Dillon McCandless King Coulter & Graham in Butler, was nonplussed by the arguments from his legal rivals in the case.

“Same old, same old. No surprises,” he said Thursday. “Some of this has already been dealt with by the judge.”

The plaintiffs will get the chance to answer the defendants' brief with their own brief later this month.