NJ’s Newest Executive Order Forecasts Future Emergency Seizures and Commandeering

by: Anthony F. Della Pelle
6 Apr 2020

On April 2, 2020, New Jersey Governor Phil Murphy signed Executive Order #113, which follows his prior Orders in our current state of emergency, and authorizes the NJ Office of Emergency Management and Department of Health to utlize provisions of the NJ Civil Defense and Disaster Conrol Act “take or use personal services and/or real
or personal property, including medical resources, for the purpose of protecting or promoting the public health, safety, or welfare.”

This latest Executive Order follows our prior posts examining the breadth of the government’s powers during times of emergency:

Can the COVID-19 Pandemic Allow the Government to Seize My Private Property?

Two Worlds Collide:  States of Emergency and Individual Rights

While Executive Order #113 makes it clear that NJ property owners may indeed be facing emergency seizures, and this latest Order references the Governor’s prior Executive Orders during this state of emergency, neither the Order nor the Disaster Control Act identifies the specific property to be subject to taking.  However, the underlying legislation, the Disaster Control Act provides broad authority to commandeer and utilize any services or property “necessary to avoid or protect against any emergency.”  Prior orders authorized State agencies to “commandeer” property, see Executive Order #103, and required businesses and non-hospital health care facilities to submit an inventory to the State of the Personal Protective Equipment (PPE) in their possession that are not required for the provision of critical healthcare services.  See Executive Order #109.  The prior orders also require all healthcare facilities to report daily regarding their capacity and supplies, including PPE.  See Executive Order #111.

For those who own property subject to seizure for this public health emergency,  both Executive Order 113 and the Disaster Control Act, N.J.S.A. App. A:9-51.7 confirm that the owner is entitled to of just compensation for any property taken.  Under the Disaster Control Act, emergency compensation boards may be established for each county, consisting of three persons appointed by the Governor.   Any party claiming entitlement to compensation for property or services seized may file a petition against the State with the emergency compensation board in the county where property is located.  The Board is then to to schedule a hearing to fix the amount of compensation, to be paid within one year of the board’s decision.  N.J.S.A. App. A:9-51(3).  Any claimaint who disagrees with the decision of the emergency compensation board may appeal it by filing an action against the State in the Superior Court of New Jersey, where it will then proceed pursuant to the practices and procedures applicable to condemnation proceedings.

While these legislative enactments give some clarification to the process which may lie ahead for the owner of any property which is taken for these emergency purposes, a few preliminary issues now appear:

  1.  Will the appeal by a claimant of an emergency compensation board also provide for a condemnation commissioners’ hearing, required of all condemnation matters initiated under the NJ Eminent Domain Act?
  2. Will the decision of the board be evidential in any later proceeding in court?
  3. How might the furtherance of any police powers by the government be used in an effort to reduce or limit the compensation offered or awarded?
  4. How will market value of a property be calculated during a time of emergency, and as of what date?
  5. How will the duration of the taking or seizure be measured, and will it take into account any time that will likely be required for the property to return to private use?

These questions are likely to only scratch the surface of how these emergencies will be handled.  But for now, as each day unfolds, we’ll be watching how the efforts of our State and local government agencies can hopefully be exercised in a fair way, to aid in the handling of the public health emergency, without trampling the Constitutional rights of those involved. After all, those same Constitutional rights were embodied in a document that was created during a time of emergency (a war), because of a time of emergency (a war), and that document continues to guide us more than 225 years later.