In a new filing, the governor and health secretary argue a federal appellate court should toss a challenge to the state's COVID-19 response brought by Butler County and several county businesses and politicians due to the legislature's termination of Pennsylvania's disaster emergency declaration.

The filing, a supplemental response to the court's February letter asking the parties if the case was moot, is a reversal for the state's executive branch, which in March agreed the case was not moot because the state was “still exercising its authority to address the pandemic.”

Due to the recent constitutional amendment and the General Assembly's June 10 termination of Gov. Tom Wolf's disaster declaration, the appellees argue, the U.S. Court of Appeals for the Third Circuit lacks jurisdiction to adjudicate the case and should vacate the lower court's decision. Tom King, a Butler attorney representing the challengers to the state's virus mitigation orders, said a formal response is being prepared.

“It is abundantly clear that the Butler County-led case, which we won in federal court, was the impetus for change in Pennsylvania,” he said. “Never again will a governor have the unfettered power to lock citizens in their homes, shut down their businesses or pick and choose winners and losers in our state.”

The appeals court presides over the case following a September order by U.S. District Judge William S. Stickman IV that overturned the COVID-19 mitigation orders and dismissed the four county plaintiffs from the case. The Third Circuit in October stayed the ruling until the appeal was resolved without further comment.

In a recent filing, the governor and secretary argue the decision should be tossed because it can no longer be challenged. Citing a 2017 Third Circuit decision, they argue the case no longer meets an exception to the mootness doctrine, which they say applies in circumstances in which the challenged action is too short to be litigated prior to expiration and where the challengers may face the same circumstances again.

“First, the challenged declarations, which were issued in response to a once-in-a-century pandemic, were not short in duration as they were in place for over 15 months,” the filing states. “Second, the decision ... arose from an extraordinary and unprecedented confluence of circumstances, and there is no reasonable expectation that appellees will again be subject to those types of declarations.”

Both parties submitted summaries of the arguments they plan to bring to a July 22 hearing.On Friday, the challengers stated Stickman's ruling should be upheld because it correctly applied modern rules of judicial scrutiny — rather than relying on a century-old case decided prior to the invention of those levels of scrutiny — and determined the state's orders violated the First and Fourteenth amendments.On Monday, the governor's office summarized its argument, saying Stickman's ruling disregarded binding Supreme Court precedent, misconstrued the executive branch's argument as to the century-old case the challengers decried in their argument summary, attempted to revive an interpretation of the Fourteenth Amendment not seen since 1937 and “misapplied the law to the facts at every step of analysis.”