Butler County business owners and elected officials have asked the nation's highest court to review Pennsylvania's COVID-19 mitigation strategies.

In a petition for a writ of certiorari to the U.S. Supreme Court filed Nov. 9, the plaintiffs in a lawsuit including Butler County and various local elected officials and business owners have asked the high court to review a federal appeals court's dismissal of their challenges to Gov. Tom Wolf's COVID-19 mitigation measures.

The appellate court dismissed the case, which was filed in May 2020, on the grounds the case was moot due to the measures' expiry date. But in the filing to the Supreme Court, the plaintiffs argue the three-judge panel's order was made in error.

The Office of the Governor did not immediately return a request seeking comment Wednesday.

Despite the U.S. Court of Appeals for the Third Circuit's order on Aug. 11, the petition states, the state health secretary implemented an order mandating face coverings in schools on Sept. 7.

State officials “may have indicated that the circumstances changed; however, their actions after the court of appeals' order tell a different story,” the petition reads in part. “Respondents fail to meet their heavy burden of persuading the court that there is no longer a live controversy because their word was only good for 27 days.”

The case was originally filed in May 2020 by Butler, Fayette, Greene and Washington counties; U.S. Rep. Mike Kelly, R-16th; state Reps. Tim Bonner, R-8th, Marci Mustello, R-11th, and Daryl Metcalfe, R-12th; and eight businesses and business owners. It challenged the state's COVID-19 mitigation orders on the grounds that they violate their First and Fourteenth Amendment rights.While the four counties were dismissed from the lawsuit — the U.S. District Court for the Western District of Pennsylvania held they had no right to sue under the Civil Rights Act of 1871, the means by which citizens can challenge in court an alleged constitutional violation — the district court ruled in favor of the plaintiffs. The measures, while well-intentioned, nevertheless violated the Constitution, the court held.“The Constitution cannot accept the concept of a 'new normal' where the basic liberties of the people can be subordinated to open-ended emergency mitigation orders,” judge William S. Stickman IV wrote in his opinion. “Rather, the Constitution sets certain lines that may not be crossed, even in an emergency. Actions taken by (the state) crossed those lines.”Quickly, Gov. Tom Wolf and the secretary of health appealed Stickman's ruling to the Third Circuit. The appellate court stayed the district court's ruling pending appeal. There, the case was judged not on its merits, but on whether there was a “live case or controversy” to adjudicate.Since the original ruling, the court held, the challenged orders had been lifted, and a constitutional amendment limiting the governor's powers in an emergency passed during May's primary election. Thus, while the orders may have in fact violated constitutional rights, there was no case on which the appellate court could decide.State officials “have represented that the public health landscape has so fundamentally changed that 'what we were facing in this case is not what you would be facing going forward' ... and though public health authorities continue to provide new guidance, plaintiffs here have given us little reason to disbelieve that representation,” circuit judge Patty Shwartz wrote for the unanimous three-judge panel.

Before the nation's high court, plaintiffs argue the Third Circuit's decision was wrong: The case is not moot, they claim, as plainly evidenced by the health secretary's school masking order.Under the mootness doctrine, there are generally two exceptions. First is the “voluntary cessation” exception, which would apply if the challenged action was intentionally ended in response to litigation; second is the “capable of repetition yet evading review” exception, which would apply if the action were in effect for too short a period of time to be reviewed and if there is an expectation those challenging the action would be subjected to it again.Although the Third Circuit held neither exception applied to the state's COVID-19 mitigation measures, the challengers before the Supreme Court claims both exceptions apply.Those challenging the measures also argue in the petition that the nation's high court should review the case for two reasons. First, the plaintiffs claim, the Third Circuit's decision creates a “circuit split” — when two or more federal appellate circuits have made conflicting decisions on the same order. Second, they write, the case “concerns a matter of national importance.”Tom King, a Butler attorney representing the plaintiffs, said he hopes the high court upholds Stickman's ruling.“The principles on which this case stand are vital to the well-being of the constitutional rights of every Pennsylvanian,” King said. “No matter the result, we have won by virtue of Judge Stickman's opinion in this case, which ended the tyrannical lockdowns and business closures.”