State attorneys are now asking a federal appellate court to stay U.S. District Judge William S. Stickman IV's ruling that three of Gov. Tom Wolf's virus mitigation orders were unconstitutional while they appeal the case.

In the 41-page motion filed Friday in the U.S. Court of Appeals for the Third Circuit, chief deputy attorney general Bart DeLone pulled no punches, calling Stickman's judgment “nonsensical,” an “extraordinary overreach,” “legally unsustainable” and “fatally flawed.”

Tom King, a Butler attorney who's representing the plaintiffs, called it “one of the most offensive legal pleadings I've ever read.”

“They say things like the judge is blind and deaf and that his order will kill people. Those are really inappropriate,” he said. “I don't give a damn who you are; I don't care if you're the governor or health secretary. You don't get to say those things in an appellate court.”

The motion, the state's second attempt to temporarily halt the district court's ruling, argues that both Stickman's original orders and his denial of the state's request for a stay were legally unsound decisions, asserts the district court's judgment will be reversed and asks the appellate court to stay the decision pending its hearing of the appeal.

“The District Court's failure to apprehend the law, failure to fulfill its role in our judicial hierarchy, and failure to understand the commonwealth's arguments in this case rendered that court's determination fatally flawed,” the motion states. “The District Court's erroneous decision — a decision that will undoubtedly cost lives — should be stayed and, ultimately, reversed.”

The lawsuit was first brought by Butler County and three other counties, four Republican politicians and several small businesses. Stickman's ruling dismissed the counties from the lawsuit and issued a declaratory judgment for the lawmakers and business owners, striking down the state's business-closure, stay-at-home and crowd-size limitation orders.

When the state first moved for a stay pending appeal in the district court, Stickman denied the motion, saying the case failed to meet the four criteria courts use to determine whether to stay proceedings. In essence, the judge said an appeal was not likely to succeed and the state would not be “irreparably injured” if the stay were not issued. Because they did not meet those factors, the judge determined, “there is no need” to examine the latter two.

King pointed out another issue with the state's first application for a stay: that they cited a number of items that were not already in the court's record. He added that this is something the state did in its appellate application as well.

“It is short on substance and long on nonsense. It's got references to probably 30 newspaper articles or other sources that were never before Judge Stickman, which is totally inappropriate and, not only inappropriate, is totally wrong,” King said. “You're not allowed to do that. The appeals court is set up to hear an appeal of the record that was before Judge Stickman.”

In the new request, the state, citing both Pennsylvania and U.S. Supreme Court cases, argued instead that its appeal was likely to succeed on the merits based on the results of those earlier cases.

The state has largely argued that its disruption of Pennsylvania businesses due to the ongoing COVID-19 pandemic, is a “lawful exercise” of the state's police powers, and claims in its Friday motion that Stickman's decision to the contrary is based on a “long-since defunct precedent” established in the 1905 case of Lochner v. New York, in which the Supreme Court held that the Fourteenth Amendment guaranteed Americans the freedom to enter into or purchase labor without governmental interference.

But, DeLone wrote, that case “has long since been discarded” and “alleged deprivations of economic liberty no longer give rise to viable substantive due process claims” — the basis on which Stickman struck down the business-closure orders.

King called this a “red herring,” saying Stickman did not base any significant amount of his decision on Lochner, but mentioned it in passing.

The state further argued that Stickman's enjoining of the crowd-size limitations was not within his role. In the motion, DeLone wrote that, even though the plaintiffs never amended the complaint to include the July 15 order limiting crowd sizes to 25 people indoors and 250 people outdoors, the judge still considered it, outside the bounds of a judge's role.

“The District Court took the extraordinary step of considering, and then invalidating the order. Respectfully, the District Court erred in reaching beyond the pleadings to rule on a claim not before it,” the motion reads. “This extraordinary overreach by the District Court is alone sufficient grounds for a stay.”

DeLone's motion also criticized Stickman's quotation of another 1905 Supreme Court ruling that held that public health measures are a proper exercise of states' police powers. In his decision, Stickman quoted from the end of that court's ruling, which included a caveat that states cannot use “arbitrary” health orders in utilizing its police power.

“But this is like reading the final passage of Orwell's 1984 and concluding that it is a book about a man who loves Big Brother,” the motion states. “Jacobson (v. Massachusetts, the 1905 case), at its core, is about giving states breathing room to protect public health and safety.”

Much like the Lochner argument, King said, the plaintiffs believe this is pretense.

“What they've tried to do is conflate things like Jacobson into major red herrings in front of the appeals court. It's really appalling,” he said. “This is just trying to create some fear in the Third Circuit that they're about to overturn Supreme Court precedent, which is just not true.”

He said the references to Jacobson in the stay request blow Stickman's citations of it out of proportion. In the district court's decision, Stickman said Jacobson followed a mode of constitutional scrutiny not used by courts today, in favor of rational basis, intermediate and strict scrutiny — this case was decided under intermediate scrutiny.

“Back when Jacobson was decided, the (Supreme) Court had not developed the levels of scrutiny to look at these things,” King said. “Over the years, they developed those levels.”

The plaintiffs' response to the state's motion is due Wednesday, after which time the appellate judge will determine whether to grant a stay. King said he plans to file a motion to strike the state's request for a stay concurrently with the response.