As Governor Philip D. Murphy issued Executive Order after Executive Order during the COVID-19 pandemic, restricting where residents can and cannot go, making it unlawful for businesses to open, and imposing expensive mandates on businesses once they were allowed to reopen, many have asked the same question: Are these orders legal?
The consistent answer from New Jersey courts, no matter what theory plaintiffs have used to challenge these Executive Orders, has been yes, they are legal. Courts also have held that the State owes no compensation for these orders, even when the result has been to effectively wreck the affected business owner’s livelihood.
The Governor of New Jersey, often referred to as the most powerful Governorship in the country, long has had broad executive authority. The State’s disaster control laws date to World War II, and after the 9/11 terrorist attacks, our Legislature gave the Governor even greater authority to declare emergencies and then to command the use of persons and property to combat those emergencies. Governor Murphy’s Executive Orders have relied on these laws.
Although some courts outside New Jersey have begun to push back against governmental closure mandates as the pandemic emergency enters its third season, Governor Murphy is undefeated in defending his orders. New Jersey courts have held consistently that his orders to promote public health are not subject to second guessing from the judiciary. Courts also have held that these orders are not Fifth Amendment “takings” for which the government owes compensation.
The United States Supreme Court held decades ago that short-term state actions to address public emergencies do not amount to Constitutional takings. Courts considering business challenges to Governor Murphy’s orders have cited that precedent.
On September 23, a kickboxing gym in Franklin became the latest business to sue for compensation. Citing N.J.S.A. App. A:9-33 and App. A:9-51, which allow the Governor to “commandeer and utilize any personal services and any privately owned property necessary to avoid or protect against any emergency subject to the future payment of the reasonable value of such services and privately owned property,” the gym claims that the closure order amounted to “commandeering” for which the government owes compensation.
This suit is unlikely to get any more traction than the ones which preceded it.
N.J.S.A. App. A:9-51(b) provides that “[c]ompensation for any personal services required of any natural person required” in a commandeering “shall be paid at the prevailing established rate for services of a like or similar nature.” Here, however, although the Governor’s Executive Order did not allow the gym to open for business, it did not require the gym owner to work for the State, either.
The gym owner’s motion argues that “any time the Governor invokes” his emergency powers “to direct the use (or nonuse) of private property, affected property owners must be paid.” That, however, simply is not what the “commandeer and utilize” laws actually say.
The gym owner submitted a declaration to the court explaining that because of Governor Murphy’s order “restricting exercise classes to one individual per 200 square feet of accessible space, coupled with six feet social distancing,” she cannot offer unlimited kickboxing classes for a flat fee, as she used to do. She said she therefore has not reopened her gym.
In June 2020, when Governor Murphy allowed health classes to take place outside, the owner began to “run outdoor kickboxing classes in a local park,” for which she charged a ten-dollar per-class fee, but few people have taken those classes.
This gym owner’s story, unfortunately, is not unique. Tens of thousands of small businesses throughout New Jersey are at risk and many may not survive.
Nothing in the gym owner’s declaration, however, supports a claim that New Jersey’s government “commandeered” her “personal services.” She remained free to work as she chose, including by offering classes in the public park. The gym owner’s alternate claim that government commandeered her “privately owned property” and owes her compensation for it is the same type of claim that multiple New Jersey courts already have rejected.
The lawsuit correctly highlights that another of Governor Murphy’s Executive Orders gave the State Police the authority to seize private stockpiles of personal protective equipment and other medical resources and direct them to areas of need. Had the State Police actually seized any private property (which, so far, it has not), the State would have needed to pay reasonable compensation for it. The Executive Order explicitly recognized that need.
To date, however, New Jersey courts have distinguished between actually seizing private property, so that it no longer belongs to the former owner, and temporarily regulating the use of private property to combat the public health emergency.
For all of these reasons, the Sussex County Superior Court seems likely to hold that this kickboxing gym owner is not entitled to compensation as though she had been pressed into service on behalf of the State.
Courts’ hesitancy to reverse Governor Murphy’s orders is, in an important sense, understandable. Primary accountability for protecting public health belongs with the elected branches of government who are politically accountable to the people. Just as importantly, courts likely are thinking about the very real problem of where the money would come from in a cash-strapped state like New Jersey if courts rule that COVID-19 closure orders are “takings” requiring compensation.
When government actually seizes private property, the Constitution’s command to provide compensation is clear. But the U.S. Supreme Court has given lower courts direction about where to draw the line between seizures and regulations to protect public health. So far, New Jersey courts have found no constitutional problem with Governor Murphy’s orders, and no basis in current statutory law to award compensation to businesses for time they are ordered to be closed.
It is equally true, however, that no prior Governor has attempted to keep an emergency in place for this long. Nor has any prior Governor issued so many Executive Orders regulating personal and business behavior in an emergency, even of short duration.
It has become cliché that COVID-19 is an unprecedented situation, and Governor Murphy has responded to that emergency by pushing the boundaries of his executive authority.
The laws on which Governor Murphy has relied, however, do not have to remain static. Just as the 9/11 terrorist attacks caused our Legislature to reexamine New Jersey’s emergency preparedness statutes, the Legislature may wish to look again at those statutes in the aftermath of the pandemic.
At the outset of an emergency like a terrorist attack or a super-storm, giving one person—the Governor—sweeping authority to protect lives and livelihoods makes eminent sense. Whether it makes equal sense for that broad delegation of authority to remain open-ended in a crisis of uncertain duration, however, without the Governor needing express Legislative permission to continue the state of emergency, is a question that the Legislature should tackle.
But so far, at least, this is not a question that the judiciary in New Jersey believes to be in its province.
Jeffrey S. Jacobson, Partner