Governor Ducey, along with local governments, have responded to coronavirus concerns by limiting normal activities, like going to the gym, getting a haircut, and grabbing a beer at a local tavern.  On June 29, 2020, Governor Ducey further restricted businesses through the issuance of yet another order shutting down the operations of gyms and bars.  In response, a slew of high-profile gyms have threatened lawsuits in state and federal courts challenging these limitations on constitutional and other grounds.   Businesses in other states have attempted to do the same and some of the constitutional grounds for the challenges and the outcomes of several cases are outlined below

Patrick R. MacQueen is a founder of MacQueen & Gottlieb, PLC.

One of the challenges to governmental limitations has been based on the First Amendment.  For example, a church in California claimed that Governor Newsom’s plan, which authorized places of worship to reopen in San Diego County, but had a 25% “cap” on occupants and a maximum of 100 attendees, argued that the plan violated the Free Exercise Clause of the Frist Amendment.  The United State Supreme Court denied the church’s emergency request to stop the enforcement of California’s reopening plan.  See South Bay United Pentecostal Church v. Newsom.  Chief Justice Roberts wrote about a states’ broad authority to respond to the coronavirus: “Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” Dissenting Justices Alito, Gorsuch, Kavanaugh, and Thomas asserted that California’s reopening plan discriminated against religion.

One of the other challenges to the governmental restrictions is based upon the Takings and Due Process Clauses of the United States Constitution.  This will likely be the basis for numerous suits by Arizona gyms, bars, and other businesses, including the one that is threatened by one of the largest gyms in Arizona.  But, a recent Pennsylvania Supreme Court decision seems to support the government’s ability to require the closure of businesses during the pandemic.  Specifically, the Pennsylvania Supreme Court held that that Governor Wolf’s shutdown orders, which required the closure of non-essential businesses, did not result in an unlawful “taking” by the government under the he Pennsylvania Constitution.

Similarly, at the beginning of June, three commercial landlords in New York challenged Governor Cuomo’s order, which required a “stay” on the initiation and enforcement of eviction actions, and argued that the order violated the Takings and Due Processes Clauses of the U.S. Constitution.  In this case, Governor Cuomo’s executive orders were challenged based on the economic impact of the pandemic, primarily the job losses by tenants that prevented the tenants from making timely rent payments.  No decision has been made on this case. 

Given what appears to be a great deal of deference given to state governments in enacting coronavirus-based orders, it is likely an uphill battle to prevail in suing the government.  If you believe the Government has improperly taken your right to earnings, profits, or compensation, or you have questions about these decisions, please contact me at 602-533-2840.   


Patrick R. MacQueen is a founder of MacQueen & Gottlieb, PLC.