united-states
Is it legal for counties to defy the state supreme court?
<p>I live in Pennsylvania. Recently, the counties of Lancaster, Dauphin, and I believe Schuylkill and Cumberland have expressed that they are going to violate the state supreme court and governor by moving to the next level of re-opening despite COVID-19 (i.e., transitioning from red to yellow).</p>
<p>Is this legal? What are the repercussions of doing so?</p>
<p>I've seen some cite the &quot;doctrine of lesser magistrates&quot; as a defense for this. The only information I could find about this practice was from Wikipedia. According to the wiki page this movement originated as a way for a lesser magistrate to overturn the decision of a higher court. It appeared that the direct reference was to something akin to feudalism. I read elsewhere (I forget where exactly) that this practice used to be use in times of violence and war, often citing tyranny as the reason for doing so.</p>
<p>To me, this all sounds like the vote of &quot;no confidence&quot; in Chancellor Valorum from Star Wars Episode I.</p>
<p>Thoughts? I'm not a lawyer but merely a legal enthusiast. Thanks!</p>

<h2>Sending a letter to the Governor is legal</h2>

<p>You can do it, I can do it and the elected officials of Lancaster County can do it. Thanks to the first amendment, that letter can say pretty much anything you like subject to limits that themselves are subject to strict scrutiny - things like threats and defamation. Outlining a course of action that you propose to take is legal even if that course of action is itself illegal.</p>

<p>I will also point out that people - sometimes even politicians - have been known to say things they don't mean.</p>

<p>However, that just begs the question ...</p>

<p>This <a href="https://www.pennlive.com/news/2020/05/lancaster-county-joins-growing-list-intending-to-start-reopening-after-coronavirus-with-or-without-governors-ok.html" rel="nofollow noreferrer">article</a> explains what's going on and, more importantly, the actual letter is <a href="https://www.facebook.com/senatoraument/posts/2805859869539385" rel="nofollow noreferrer">here</a>.</p>

<p>I've read it. Twice. I can't see where the county proposes to do anything concrete that might be considered illegal.</p>

<p>Apart from the first paragraph, the entire letter appears to be a case for why the county should be permitted to move from red to yellow on May 15 and they are asking for the Governor's support. Even the first paragraph is ambiguous; while it asks the Governor to move the county from "red" to "yellow" and states that they "intend to move forward with a plan" it is by no means clear that that plan is moving from "red" to "yellow" even though you could get that impression on a casual reading.</p>

<p>Basically, what they intend to do is so vague that it's impossible to tell if it's legal or not.</p>

<p>Of course, just because something is illegal doesn't mean it can't be done. The USA is a free country and the fundamental freedom is to reap the consequences of your actions. If the county does something<sup>1</sup> then the state can take them to court - the court will decide if it's legal or not.</p>

<p><sup>1</sup> Or threatens to do something sufficiently concrete that an injunction against it could be issued.</p>

<p>The doctrine of lesser magistrates has not been part of US law since we declared independence from the king of England. Whether or not the actions of some public official are legal depends on what that action is, and what the legality of the prohibition of that action is. I have seen that a group of officials in Lancaster county have written a letter dated May 9 to the governor, and that is entirely legal (protected by the First Amendment). On May 15, some official proclamation might be issued, and it is pointless to imagine all of the possible things that might be in such a proclamation. But for the sake of argument, assume that the county makes a declaration that essentially replicates the so-called <a href="https://www.governor.pa.gov/wp-content/uploads/2020/05/20200507-TWW-Yellow-Phase-Order.pdf" rel="nofollow noreferrer">yellow phase proclamation</a>, applied to Lancaster county. It is legal to issue such a proclamation. That does not mean the proclamation would have legal force.</p>

<p>Then the matter would have to be decided in court (unless it's decided politically). On both sides, the central question is whether the executive has the power under state law to tell people what to do. <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/35/00.073..HTM" rel="nofollow noreferrer">There is a statute</a> that gives the governor broad emergency powers. There does not appear to be any provision of state law that allows a county official to declare a gubernatorial order null and void. Even if a law exists allowing county officials to issue legally-enforceable orders, county law is subordinate to state law, so individuals who open for business are not immune from legal action by the state. </p>
