School Masking Mandate

Corman v. Beam, – A.3d –, 2021 WL 5227124 (Nov. 21, 2021), original jurisdiction, appeal docket 83 MAP 2021

This case arises from school districts and taxpayers’ challenge to the “Order of the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities” (Masking Order) issued on August 31, 2021, by Alison M. Beam, the Acting Secretary of Health, which imposed an open-ended general masking requirement effective September 7, 2021, on all teachers, students, school staff, and visitors within Pennsylvania’s schools, regardless of vaccination status, with certain exceptions. Petitioners’ argued that the Masking Order is void ab initio as a result of the Acting Secretary’s failure to comply with the requirements of Pennsylvania law in imposing the Masking Order, and violates the non-delegation doctrine, and sought an injunction preventing the Acting Secretary from enforcing the Masking Order. The Acting Secretary countered that the Masking Order is not a rule or regulation requiring compliance with the requirements of the Commonwealth Documents Law or the Regulatory Review Act, but instead is an order promulgated pursuant to the authority granted to the Secretary of Health by Pennsylvania law, specifically, Section 5 of the Disease Control Law, 35 P.S. § 521.5, Section 2102(a) of the Administrative Code, 71 P.S. §§ 532(a), Section 8 of the Act of April 27, 1905, P.L. 312, 71 P.S. § 1403(a), and the Department of Health’s regulation at 28 Pa. Code § 27.60 (relating to disease control measures).

Commonwealth Court held that the Acting Secretary improperly issued the Masking Order without complying with the rulemaking requirements of the Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15, and in the absence of a gubernatorially-declared disaster emergency issued pursuant to the Emergency Code, 35 Pa.C.S. § 7301(c). In so holding, the court first found that the Masking Order represents a rule or regulation subject to the formal requirements for regulatory rulemaking, reasoning:

Because the Masking Order herein is intended to, and actually does, dictate citizens’ standards of conduct within Pennsylvania’s schools, we need not belabor an analysis of whether the Masking Order represents simply a general statement of policy as opposed to a regulation. The language of the Masking Order clearly mandates that those inside School Entities must wear masks and binds those School Entities and those attending or visiting. The Order does not guide or provide an interpretation of a statute, but rather, requires that “[e]ach teacher, child/student, staff, or visitor working, attending, or visiting a School Entity shall wear a face covering indoors, regardless of vaccination status[.]” Masking Order at 4. There is no palatable argument that this Order is mere guidance.

Here, with certain exceptions, the plain language of the Masking Order requires all persons physically within a School Entity as a student, teacher, staff, or visitor, to wear a face covering regardless of COVID-19 infection or vaccination status. This plain language clearly indicates that the Masking Order is an order of general application that creates a binding norm for all persons physically within School Entities. Further, the Acting Secretary intended the Masking Order to be implemented not by future rulemaking, but immediately upon the effective date and under the authority of statute and regulation as cited in the Masking Order itself. Finally, the Masking Order leaves no room for the Department of Health to exercise any discretion regarding compliance with the Masking Order, once implemented. The Masking Order is a blanket rule that affects all School Entities in the Commonwealth. The Masking Order has the force and effect of law.

In consideration of the above, we have little difficulty agreeing that the Masking Order represents an attempt by the Acting Secretary to impose a new, binding norm. As such, if not already authorized by statute or regulation, and in the absence of a disaster emergency declared by the Governor, the Masking Order represents a regulation subject to the requirements of the Commonwealth Documents Law and the Regulatory Review Act.

Slip op. at 18-20. Having found the Masking Order was subject to formal rulemaking, the court went on to conclude that the Acting Secretary was not authorized by statute or regulation to promulgate the Masking Order without complying with the formal requirements of the Commonwealth Documents Law and the Regulatory Review Act, explaining that:

The Masking Order states that these authorities allow the Department to implement any disease control measure appropriate to protect the public from the spread of infectious disease. See Masking Order at 3. We do not agree.

Regarding the specific sections of Pennsylvania law upon which the Acting Secretary bases her authority to implement the Masking Order, first, Section 5 of the Disease Control Law, entitled “Control measures,” provides that

[u]pon the receipt by a local board or department of health or by the [D]epartment [of Health], as the case may be, of a report of a disease which is subject to isolation, quarantine, or any other control measure, the local board or department of health or the [D]epartment [of Health] shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation.

35 P.S. § 521.5 (emphasis added). A “control measure” is limited to one as provided by an existing rule or regulation. See id.

The Masking Order requires neither isolation nor quarantines. Therefore, the Acting Secretary by necessity relies on the “any other control measure” portion of this section of the Disease Control Law as authority for the Masking Order. However, the language of this section – particularly “a disease which is subject to isolation, quarantine, or any other disease control measure” and “shall carry out the appropriate control measures” – contemplates existing control measures for diseases already subject to those existing control measures. Additionally, the Acting Secretary’s reading of Section 5 of the Disease Control Law does not account for the portion of the text that immediately follows the “any control measures” language that requires that any “other control measure” be carried out “in such manner and in such place as is provided by an existing rule or regulation.” 35 P.S. § 521.5. As a result of this express limitation, while Section 5 of the Disease Control Law does grant the authority to “carry out the appropriate control measures” to control diseases, as Respondent suggests, it does not provide the Acting Secretary with the blanket authority to create new rules and regulations out of whole cloth, provided they are related in some way to the control of disease or can otherwise be characterized as disease control measures. Instead, Section 5 limits the “other control measures” available to Respondent to those permitted under existing rules and regulations. Accordingly, this section of the Disease Control Law does not, on its own, provide the Acting Secretary with the authority to impose the Masking Order’s non-isolation, non-quarantine control measure of requiring all individuals to wear masks or face coverings inside Pennsylvania’s School Entities to combat reports of COVID-19.

The Acting Secretary also relies on two provisions from the Administrative Code as further authority for the implementation of the Masking Order. See Masking Order at 3. Section 2102(a) of the Administrative Code, entitled “General health administration,” enumerates the duties of the Department of Health, among which are the duties

[t]o protect the health of the people of this Commonwealth, and to determine and employ the most efficient and practical means for the prevention and suppression of disease[.]

71 P.S. § 532(a). The Administrative Code further states, in the section entitled “Duty to protect health of the people,” that

[i]t shall be the duty of the Department of Health to protect the health of the people of the State, and to determine and employ the most efficient and practical means for the prevention and suppression of disease.

Section 8 of the Act of April 27, 1905, P.L. 312, 71 P.S. § 1403(a). These sections are statements of general duties of the Department of Health. By so listing these duties, these subsections do authorize the Department of Health to promulgate rules and regulations to accomplish these goals and fulfill these duties, but do not authorize specific means by which the Department of Health may accomplish the duties, nor do they provide specific authority for the Masking Order. These Administrative Code subsections make no reference whatsoever to disease control measures of any kind; nothing in these subsections authorizes the promulgation of rules or regulations pursuant to the duties listed therein without compliance with established rulemaking protocols. It goes without saying that the Department of Health must carry out these duties within the constraints of the law and does not have carte blanche authority to impose whatever disease control measures the Department of Health sees fit to implement without regard for the procedures for promulgating rules and regulations, expedited or otherwise. See supra nn.18-20.

The Acting Secretary also cites Section 27.60 of the Department of Health Regulations, 28 Pa. Code § 27.60, as authorizing the requirements of the Masking Order. Section 27.60(a) provides that

[t]he Department [of Health] or local health authority shall direct isolation of a person or an animal with a communicable disease or infection; surveillance, segregation, quarantine or modified quarantine of contacts of a person or an animal with a communicable disease or infection; and any other disease control measure the Department [of Health] or the local health authority considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents.

28 Pa. Code § 27.60(a) (emphasis added). This subsection of Department of Health Regulation Section 27.60 speaks in terms of isolating and/or surveilling animals or individuals with a communicable disease or infection, and also in terms of the surveillance, segregation, and quarantine of contacts of a person or an animal with a communicable disease or infection. See id. The Masking Order requires the wearing of masks and/or face coverings in School Entities regardless of whether individuals are known to be infected with COVID-19 or whether they are a contact of an individual known to be infected with a communicable disease. As such, the Masking Order cannot be said to be in furtherance of the isolation or surveillance of animals or individuals with a communicable disease or the surveillance, segregation, or quarantine of contacts of a person or an animal with a communicable disease or infection.

To the extent the Acting Secretary relies on the language of Department of Health Regulation Section 27.60(a) that allows the Department to implement “any other disease control measure the Department [of Health] … considers to be appropriate[,]” we note, as we did in our discussion of the language of Section 5 of the Disease Control Law, 35 P.S. § 521.5, supra, that this language does not provide blanket authority to create new rules and regulations out of whole cloth. Instead, directly following the “any other disease control measure” language is the qualifying language “for the surveillance of disease.” 28 Pa. Code § 27.60(a). This language directly limits the disease control measures the Department of Health may consider “appropriate” to those disease control measures related to the surveillance of disease. Mask wearing is not disease surveillance. Therefore, for this additional reason, the Acting Secretary cannot rely on Department of Health Regulation Section 27.60(a) as authority for the Masking Order.

Likewise, it cannot be said that mask wearing represents a form of “modified quarantine” as contemplated in 28 Pa. Code § 27.60(a). In addition to Section 27.60(a) referring only to infected animals or individuals and the contacts of infected animals or individuals, Section 27.1 of the Department Regulations defines “Modified quarantine” as

[a] selected, partial limitation of freedom of movement determined on the basis of differences in susceptibility or danger of disease transmission which is designated to meet particular situations. The term includes the exclusion of children from school and the prohibition, or the restriction, of those exposed to a communicable disease from engaging in particular activities.

28 Pa. Code § 27.1. This definition of “modified quarantine” contemplates the limitation of movement of individuals who have already been exposed to a communicable disease. To equate a “partial limitation of freedom of movement” in those exposed to a communicable disease with a mask-wearing requirement for all individuals without knowledge of whether they had been exposed to COVID-19 would improperly ignore the plain language of the definitions contained in the Department of Health’s own regulations.

Further, subsection (b) of the Department of Health Regulation Section 27.60 permits the Department of Health to “determine the appropriate disease control measure based upon the disease or infection, the patient’s circumstance, the type of facility available, and any other available information relating to the patient and the disease or infection.” 28 Pa. Code § 27.60(b). In referring to “the patient’s circumstances,” Department of Health Regulation Section 27.60(b) specifically limits the authority and possible actions of the Department of Health to those individuals who have already contracted specific diseases, not the general, uninfected population as a whole. Additionally, the subsection’s reference to “facilities available” indicates facilities for the surveillance, segregation, quarantine, or modified quarantine of individuals already known to have been exposed to a disease or infection. Accordingly, this subsection likewise fails to provide the broad authority claimed by the Acting Secretary to impose the Masking Order on otherwise healthy Pennsylvanians attending, working in, or otherwise visiting Pennsylvania’s School Entities.

Slip op. at 28-29. The court then went on to address the Governor’s powers under the Emergency Code, explaining:

We further acknowledge that the Emergency Code grants the Governor the power to issue “executive orders, proclamations and regulations which shall have the effect of law.” 35 Pa.C.S. § 7301(b). We further acknowledge that our Supreme Court has recognized in Scarnati, 233 A.3d at 705, and DeVito, 227 A.3d at 885, that the General Assembly has also granted the Governor the power to “[s]uspend the provisions of any regulatory statute prescribing the procedures for conduct of Commonwealth business, or the orders, rules or regulations of any Commonwealth agency, if strict compliance … would in any way prevent, hinder or delay necessary action in coping with the emergency,” declared pursuant to Section 7301(f)(1) of the Emergency Code. 35 Pa.C.S. § 7301(f)(1). However, as discussed supra, in the absence of a declared emergency, and where such orders are not otherwise authorized by statute or regulation, the Governor and the executive agencies of the Commonwealth must follow the prescribed procedures for rulemaking set forth in the Commonwealth Documents Law and the Regulatory Review Act.

Slip op. at 29. Thus, the court concluded:

The instant matter presents such a scenario. The Governor did not declare a new disaster emergency following the General Assembly’s approval of the Concurrent Resolution that terminated the Disaster Proclamation. Instead, the Acting Secretary issued the Masking Order, which is a regulation, without complying with the mandatory rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act. In so doing, the Acting Secretary attempted to issue her own emergency declaration about the dangers of COVID-19 and mutations thereof, including the Delta variant. See Masking Order at 1. The purported authority cited by the Acting Secretary in the Masking Order does not convey the authority required to promulgate a new regulation without compliance with the formal rulemaking requirements of the Commonwealth Documents Law and the Regulatory Review Act. Therefore, because the Acting Secretary did not comply with the requirements of the Commonwealth Documents Law or the Regulatory Review Act in promulgating the Masking Order, the Masking Order is void ab initio. For this Court to rule otherwise would be tantamount to giving the Acting Secretary unbridled authority to issue orders with the effect of regulations in the absence of either a gubernatorial proclamation of disaster emergency or compliance with the Commonwealth Documents Law and the Regulatory Review Act, as passed by the General Assembly. As this would be contrary to Pennsylvania’s existing law, we decline to do so.

Slip op. at 29-30.

In dissent, Judge Wojick disagreed with the majority that the Masking Order was outside of the Acting Secretary’s statutory and regulatory authority, reasoning:

The provisions of the Administrative Code and the Disease Control Law provide DOH broad authority “[t]o protect the health of the people of [Pennsylvania], and to determine and employ the most efficient and practical means for the prevention and suppression of disease.” 71 P.S. §§ 532(a), 1403(a). However, the Disease Control Law and the associated regulations outline the parameters within which the Secretary and the Board, as well as local boards and departments, may operate with respect to the containment of communicable diseases within public and private schools. See Sections 4 and 5 of the Disease Control Law; Section 27.60 of DOH’s regulations. Specifically, the Secretary may only “carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation,” upon the receipt of “a report of a disease which is subject to isolation, quarantine, or any other control measure.” 35 P.S. § 521.5. See also Wolf v. Scarnati, ––– Pa. ––––, 233 A.3d 679, 705 (2020) (“Broad discretion and standardless discretion are not the same thing.”); Gilligan v. Pennsylvania Horse Racing Commission, 492 Pa. 92, 422 A.2d 487, 490 (1980) (“The latitude of the standards controlling exercise of the rulemaking powers expressly conferred on the Commission must be viewed in light of the broad supervisory task necessary to accomplish the express legislative purpose.”).

In this case, the Secretary has acted according to the statutory and regulatory authority conferred upon her to protect the vulnerable student population in “School Entities” by the least restrictive and “the most efficient and practical means” available while the lethal COVID-19 pandemic continues to infect and kill the residents of this Commonwealth. The authority conferred upon her in this regard in no way encroaches upon the legislative power provided in article II, section 1 of the Pennsylvania Constitution.

Dissent slip op. at MHW-20 – 22.

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