Priest Files Shutdown Challenge – Is Governor Thinking About the Bill of Rights Now?

by: Anthony F. Della Pelle
5 May 2020

Last week we wrote about the first known challenge to Governor Murphy’s Executive Order shutting down the State in an attempt to slow the spread of COVID-19.  The plaintiff there alleged the Order resulted in a taking of his beach house because it prohibits seasonal beach rentals and, as a result, he was required to refund a deposit on a rental and the home will now be vacant all summer.  In that case, the plaintiff fails to identify how his claims satisfy the legal criteria for a regulatory taking – namely that the regulations substantially deprive him of all beneficial use and enjoyment of the property.  This has always been a high hurdle for property owners pursuing a regulatory taking claim.  While the Governor’s Order might bar the plaintiff from renting his property for a short term or seasonal rental, it does not prohibit longer-term rentals or the use of the property by the plaintiff or his family and, therefore there does not appear to be a deprivation of all use and enjoyment of the property.

But what about those property owners who are in fact barred from using their property during the shutdown – do they have a claim?  A complaint recently filed in New Jersey Federal District Court may provide some guidance as the complaint provides detailed allegations in support of its claims that the Governor’s Order violates the 1st and 14th Amendments to the United States Constitution.  The plaintiff in this most recent lawsuit alleges the Governor knowingly cast aside consideration of constitutional rights by discriminating against religious gatherings in favor of secular commercial gatherings.  Not surprisingly, the plaintiff seized on the Governor’s comment when asked last month during an interview about the constitutional issues raised by his Order when he said he “wasn’t thinking of the Bill of Rights when we did this.

This most recent action could certainly test the constitutional limits of the Governor’s Executive Order No. 107.  A New Jersey priest, Reverend Kevin Robinson, of St. Anthony of Padua Church in North Caldwell, contends he can conduct services in accordance with the social distancing practices set for the in the Order and currently employed by those businesses deemed “essential” such as grocery, liquor hardware stores, etc.  The complaint alleges religious institutions should be afforded the same latitude as these retail businesses.  Failure to do so violates the 1st Amendment’s Free Exercise Clause and the Equal Protection Clause of the 14th Amendment.

While not framed as a regulatory taking case, a ruling in plaintiff’s favor may provide a road map for property rights advocates as the Executive Order, in addition to the Equal Protection argument, has in fact, deprived some property owner’s of the use and enjoyment of their property without just compensation in violation of the 5th Amendment.  Now, a church is not a commercial operation, but there are hundreds of commercial businesses shuttered by the Governor’s Order.  Important to keep in mind also is that under New Jersey law, where there is a temporary taking that shuts down a business, a property owner is entitled to  consequential business losses.*

We have said before that we expect that the courts will show great deference to the government as it struggles to contain the spread of COVID-19.  However, such deference is subject to the limitations of government power found in the US Constitution as well the New Jersey State Constitution.  At this moment, that question is before the Federal District Court.

It will be interesting to see if the Court gets to decide the case on the merits.  Reverend Robinson is represented by the Thomas More Society, a not-for-profit, national public interest law firm based in Chicago.  Lawyers for the Thomas More Society filed a similar lawsuit last week to challenge Illinois’ ban on religious  that resulted in Governor Pritzker agreeing to modify his Executive Order to include religious services as an “essential activity” and permits people to leave their homes “to engage in the free exercise of religion.”  The new order encourages churches to reopen for “drive-in services” and allows small in-person gatherings.  Previously, Illinois, like New Jersey and several other states, entirely banned religious services.

Whether New Jersey will follow suit, remains to be seen.

See State of New Jersey, by the Comm’r of Transp., v. Mohammed Arifee; Jawed Arifee a/k/a Ahmad Arifee; Bubble Bath Car Wash, Inc., n/k/a Palace Car Wash, Inc., a N.J. Corp., No. A-5633-07T1 (N.J. Super. Ct. App. Div. Aug. 27, 2009) (per curiam) in which defendant was represented by McKirdy, Riskin, Olson & Della Pelle, P.C.