NJGOP Joins The Shutdown Challenge Party

by: Anthony F. Della Pelle
22 May 2020

Yesterday, the NJ State Republican Committee joined forces with a few small businesses in filing a lawsuit to challenge the constitutionality of Governor Phil Murphy’s Executive Orders in an effort to reopen small businesses around the State.  The lawsuit, filed in New Jersey Superior Court, Cape May County, includes as plaintiffs the GOP State Committee, as well as a barbershop in Sussex County, a liquor store in Cumberland County, an equestrian training facility in Somerset County, and a brewpub in Cape May County.  The plaintiffs contend that the Governor’s shutdown orders arbitrarily classify certain businesses as “essential” and others as “non-essential”.  They further contend that the Orders unfairly favor large businesses and discriminate against small businesses, which could allegedly implement proper social distancing and other health and safety protocols even more easily than large businesses, but instead are and remain “shuttered”.

A copy of the complaint is available here.

This latest challenge to NJ’s shutdown orders provides narrowly-tailored claims for relief, alleging that the Orders are overbroad and arbitrary, are violative of the Equal Protection Clause of the U.S. Constitution and N.J. Constitution, deprive the plaintiffs of their substantive rights to due process of law, and seek injunctive and declaratory relief on the basis of the “irreparable harm” caused thus far and which is likely to continue.  Of interest in this case, marking the first known challenge by a political organization in NJ to the shutdown orders, is the fact that one of the attorneys for the plaintiff is State Senator Michael Testa, a Republican Senator from Cumberland County.

The political overtones in the new lawsuit did not end with the identity of the main plaintiff and plaintiff’s counsel.  News of the lawsuit quickly prompted a rebuff from Governor Murphy, who abruptly stated:  “What, they sued me?….As you can tell, I’ve spent a lot of time focused on that suit.”  According to this NJ.com article, State Democratic leaders also blamed the GOP for “partnering” with former GOP Governor Christie for years in creating an economic “hole” in NJ in an effort to redirect the blame for NJ’s fiscal health.

Political overtones aside, this suit – filed in State court, not Federal court like earlier challenges – may be worth grabbing some popcorn to follow.  The plaintiffs include a powerful political organization, which has partnered with select small businesses of different types around the State, apparently in an effort to provide a strong claim as to the potential arbitrariness in which the “essential businesses” have been classified and treated.  It does not directly seek damages, and does not directly focus upon the initiation of the Governor’s Orders, but instead challenges the allegedly arbitrary ways in which they have been applied and modified over time.    This type of challenge hits hard at the constitutional “separation of powers” issues that are involved in any emergency action undertaken by Governor Murphy or other Governors around the United States.

Do members of the executive branch of government really have the power to refrain and restrian individual rights and liberties that are guranteed to Americans in both the Federal and State Constitutions?  Do the executive branch leaders have the power to create laws when the Constitutions specifically reserve those powers to the legislative branch?  When will courts, in performing judicial review of these actions by executive branch leaders, intervene and decide or declare that the executive branch has gone to far?  These basic constitutional law issues were covered in our previous blog posts, including the posts available here and here.  Will NJ courts decide these challenges like the Supreme Court of Wisconsin, which recently held that its Governor had “gone too far”?

Stay tuned.  There promises to be much more of this on its way.