Government

Murphy’s Law: New Jersey Republicans Sue Governor Over Unconstitutional Executive Orders

NJ.com Report: Gov.Murphy won’t accept a cabinet post from a Democratic president

SUSSEX COUNTY, NJ – The New Jersey Republican Party has filed a lawsuit against Governor Phil Murphy claiming his executive orders that prohibit the operation of small businesses are unconstitutional.   The lawsuit was filed by freshman New Jersey Republican State Senator Michael Testa, Pasta’s Barbershop, 54th Street Liquor, Eastlyn Golf Course, Mizzitraining LLC, and Bucket Brigade Brewery.

Murphy’s Law Arbitrarily Picks Winners and Losers

Testa and the GOP claim Murphy’s executive orders unlawfully discriminate between similarly situated businesses by arbitrarily designating some of them as “essential” and others as “non-essential.” and the Governor’s classification of some businesses as essential, and others as non- essential, is completely arbitrary, capricious, and wholly disconnected from the proffered purposes of health and safety.

Murphy’s Law Favors Big Corporations and Prohibits Small Businesses from Operating

“Despite the similar ability of most businesses to safely service the public and fully comply with CDC guidelines, the Governor has ordered some businesses to close based solely upon the goods and services that they provide,” Testa’s filing states. “In doing so, the Governor has unfairly protected a group of mostly large corporate chain stores, to the great detriment of the State’s small businesses, in a way that violates substantive due process and equal protection of the laws as guaranteed by the Constitution of the State of New Jersey.”

NJ GOP Chairman Doug Steinhardt contends the plaintiffs’ claims challenge the Governor for creating arbitrary and capricious classes of employers and employees and enacting and enforcing unconstitutional executive orders that deny millions of New Jerseyans equal protection under the law.

“Governor Murphy has irreparably harmed New Jersey small businesses by arbitrarily declaring some essential and others non-essential.  While mom and pop barbers, bars, brew pubs and retail shops are shuttered and struggling, big box stores, with big cash cushions, survive. Governor Murphy has callously covered his ears, closed his eyes, and ignored New Jersey’s cries for honest answers to real problems,” said Chairman Steinhardt. “The Covid crisis has created challenges for governments everywhere, but forty-nine other states are making progress, while New Jersey flounders. Governor Murphy could be guided by science,  but instead hides behind it.

“The Bill of Rights may be above Phil Murphy’s pay grade, but it’s not above ours. Our interventions may not matter to him, but they matter us. This lawsuit lets Plaintiffs plead their case to the Courts, since the Governor made clear that if you disagree with him you should move to another State.

“While good fortune may insulate Governor Murphy from the economic side effects of his bad judgment, New Jersey’s small businesses owners and 1.1 million unemployed are less lucky. Worse yet, they’ll be paying the price for the Governor’s poor judgment and fiscal mismanagement long after he’s gone, come November 2021. Maybe by the time he’s applying for New Jersey unemployment, the system will be up and running.”

Plaintiff, 54th Street Liquor, LLC, d/b/a Eastlyn Golf Course & The Greenview Inn (“Eastlyn”), is a limited liability company of the State of New Jersey, with its principal place of business located at 4049 Italia Ave, Vineland, Cumberland County, New Jersey 08361. Eastlyn is a golf course that also operates a restaurant and event.

Plaintiff, Mizzitraining, LLC (“Mizzi”), is a limited liability company of the State of New Jersey, with its principal place of business located at 125 Wertsville Road, Hillsborough Township, Somerset County, New Jersey 08822. Mizzi is an equestrian training facility that provides lessons to riders of all skill levels, and which serves as the home for the Rutgers Western IHSA.

Plaintiff, Bucket Brigade Brewery, LLC (“Bucket Brigade”), is a limited liability company of the State of New Jersey, with its principal place of business located at 205 North Main Street, Cape May Court House, Cape May County, New Jersey 08210. Bucket Brigade is a brewpub owned and operated by two brothers who have been volunteer and career firemen with a combined 50 years of public service.

The entire lawsuit can be read below:

Michael B. Lavery, Esq. (033241989) William H. Pandos, Esq. (114972014) James F. Moscagiuri, Esq. (029222001) Lavery, Selvaggi, Abromitis  & Cohen A Professional Corporation

1001 Route 517

Hackettstown, NJ 07840

(908) 852-2600

Counsel for Plaintiff,

New Jersey Republican State Committee

 

Michael L. Testa, Jr., Esq. (032092001) Testa, Heck, Testa & White

A Professional Association 424 West Landis Avenue Vineland, NJ 08360 Counsel for Plaintiffs,

John E. Pastas, dlb/a Pastas Barber Shop;

54th Street Liquor, LLC, d/b/a Eastlyn Golf Course & The Greenview Inn; Mizzitraining, LLC; and Bucket Brigade Brewery , LLC

 

SUPERIOR COURT OF NEW JERSEY LAW DIVISION: CAPE MAY COUNTY DOCKET NO.: CPM-L-

 

Civil Action

 

COMPLAINT, JURY DEMAND, TRIAL COUNSEL DESIGNATION, RULE 1:38 AND RULE 4:5-1 CERTIFICATIONS

 

Plaintiffs, the New Jersey Republican State Committee; John E. Postas, d/b/a Postas Barber Shop; 54th Street Liquor, LLC, d/b/a Eastlyn Golf Course & The Greenview Inn; Mizzitraining, LLC; and Bucket Brigade Brewery, LLC (“Plaintiffs”), by way of their Complaint against Defendants, Philip D. Murphy, in his official capacity as Governor of the State of New Jersey; Gurbir S. Grewal, in his official capacity as Attorney General of the State of New Jersey; and Patrick J. Callahan, in his official capacity as Superintendent of the New Jersey Division of State Police and as State Director of Emergency Management (“Defendants”); hereby allege as follows:

INTRODUCTION

 

  1. In March 2020, the World Health Organization declared a global pandemic concerning the spread of the COVID-19
  2. In response to the crisis, Governor Philip D. Murphy exceeded his authority by enacting a series of unconstitutional Executive Orders that have shuttered large swaths of the State’s economy, and which have already caused irreparable harm to innumerable small businesses throughout the
  3. These Executive Orders unlawfully discriminate between similarly situated businesses by arbitrarily designating some of them as “essential” and others as “non-essential.”
  4. Essential businesses are permitted to remain open, while non-essential businesses are forced to close under threat of criminal
  5. The Governor’s classification of some businesses as essential, and others as non- essential, is completely arbitrary, capricious, and wholly disconnected from the proffered purposes of health and

 

 

 

 

 

 

2

 

  1. Despite the similar ability of most businesses to safely service the public and fully comply with CDC guidelines, the Governor has ordered some businesses to close based solely upon the goods and services that they
  2. In doing so, the Governor has unfairly protected a group of mostly large corporate chain stores, to the great detriment of the State’s small businesses, in a way that violates substantive due process and equal protection of the laws as guaranteed by the Constitution of the State of New Jersey.
  3. Plaintiffs are representative of the many small businesses from around the State that have been unlawfully targeted by Governor Murphy’s Executive
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THE PARTIES

 

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth
  2. Plaintiff, the New Jersey Republican State Committee (“NJGOP”), is a non-profit corporation of the State of New Jersey, with its principal place of business located at 150 West State Street, Suite 230, Trenton, Mercer County, New Jersey 08608. The NJGOP is the only official body endowed with authority to guide the Republican party in the State of New Jersey, and it relies upon the meetings of its membership in order to undertake the business of the organization.
  3. Plaintiff, John Postas d/b/a Pastas Barber Shop (“Postas”), is a sole

 

proprietorship of the State of New Jersey, with its principal place of business located at 356 Rutherford Ave, Franklin, Sussex County, New Jersey 07416. Postas is a community barber shop that has been in operation since 1925.

 

  1. Plaintiff, 54th Street Liquor, LLC, d/b/a Eastlyn Golf Course & The Greenview Inn (“Eastlyn”), is a limited liability company of the State of New Jersey, with its principal place of business located at 4049 Italia Ave, Vineland, Cumberland County, New Jersey 08361. Eastlyn is a golf course that also operates a restaurant and event
  2. Plaintiff, Mizzitraining, LLC (“Mizzi”), is a limited liability company of the State of New Jersey, with its principal place of business located at 125 Wertsville Road, Hillsborough Township, Somerset County, New Jersey 08822. Mizzi is an equestrian training facility that provides lessons to riders of all skill levels, and which serves as the home for the Rutgers Western IHSA
  3. Plaintiff, Bucket Brigade Brewery, LLC (“Bucket Brigade”), is a limited liability company of the State of New Jersey, with its principal place of business located at 205 North Main Street, Cape May Court House, Cape May County, New Jersey 08210. Bucket Brigade is a brewpub owned and operated by two brothers who have been volunteer and career firemen with a combined 50 years of public
  4. Defendant, Philip D. Murphy, is the Governor of the State of New Jersey, and he is named as a defendant in his official capacity as such. As the chief executive of the State of New Jersey, the Governor issued the Executive Orders being challenged, and is responsible for their continued
  5. Defendant, Gurbir S. Grewal, is the Attorney General of the State of New Jersey, and he is named as a defendant in his official capacity as such. As the chief law enforcement officer of the State of New Jersey, the Attorney General exercises, delegates, and supervises all the powers and duties of the New Jersey Department of Law and Public Safety, including the

 

enforcement of N.J.S.A. App. A:9-49, which imposes criminal penalties for violations of Executive Orders issued by the Governor.

  1. Defendant, Patrick Callahan, is the Superintendent of the New Jersey Division of State Police as well as the State Director of Emergency Management, and he is named as a defendant in his official capacity as such. As Superintendent of the New Jersey Division of State

Police, he is responsible for carrying out the enforcement ofN.J.S.A. App. A:9-49, which imposes criminal penalties for violations of Executive Orders issued by the Governor. As State Director of Emergency Management, he is responsible for implementing the Executive Orders being challenged, including the list of essential businesses.

THE EXECUTIVE ACTION

 

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth herein .
  2. On March 21, 2020, Governor Murphy took unprecedented action  in response  to the COVID-19 pandemic, and issued Executive Order 107, directing citizens to stay at home, and further ordering non-essential businesses to close effective 9:00 p.m. that very
  3. Essential businesses, as determined by the Governor and Defendant Callahan, are excluded from the mandate, and are allowed to stay
  4. In pertinent part, Executive Order 107 provides as follows:

 

Gatherings of individuals, such as parties, celebrations, or other social events, are cancelled, unless otherwise authorized by this Order. The State Director of Emergency Management, who is the Superintendent of the State Police, shall have the discretion to make clarifications and issue orders related to this provision.

 

The brick-and-mortar premises of all non-essential retail businesses must close to the public as long as this Order remains in effect. Essential retail businesses, listed below, are excluded from this

 

5

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directive and may remain open during their normal business hours….

 

  1. Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
  2. Pharmacies and alternative treatment centers that dispense medicinal marijuana;
  3. Medical supply stores;
  4. Retail functions of gas stations;
  5. Convenience stores;
  6. Ancillary stores within healthcare facilities;
  7. Hardware and home improvement stores;
  8. Retail functions of banks and other financial institutions;
  9. Retail functions of laundromats and dry-cleaning services;
  10. Stores that principally sell supplies for children under five years old;
  11. Pet stores;
    1. Liquor stores;
  12. Car dealerships, but only to provide auto maintenance and repair services, and auto mechanics;
  13. Retail functions of printing and office supply shops; and
  14. Retail functions of mail and delivery

 

  1. Executive Order 107 further bestows unbridled authority upon Defendant Callahan “to make additions, amendments, clarifications, exceptions, and exclusions to this list[,]” even though he is an unelected member of the Executive Branch of the New Jersey State
  2. The efficacy of Executive Order 107 has since been extended by Executive Orders 119 and 138, respectively, and Governor Murphy has yet to provide any indication of a date certain for the end of mandatory closures of non-essential
  3. Since the initial implementation of Executive Order 107, Governor Murphy and Defendant Callahan have even reopened some specific businesses, despite the status quo of the pandemic.
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  1. For example, on March 30, 2020, Governor Murphy decided that gun shops should be reopened , after they had previously been shuttered by his Executive
  2. This demonstrates the arbitrary and capricious nature of the Governor’s list of essential business, which is subject to change on a whim and without reason .

EFFECTS OF THE EXECUTIVE ACTION

 

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth herein.
  2. As of the week ending May 2, 2020, over 1,000,000 unemployment claims had been filed in the State of New Jersey since Executive Order 107 was enacted in mid-March.
  3. Plaintiffs were forced to close immediately , despite their willingness to observe the same health and safety precautions imposed upon essential  businesses,  including the requirements to “abide by social distancing practices to the extent  practicable ,”  and  to take “reasonab le efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces.”
  4. While thousands of businesses were forced to close their doors on March 21, 2020, and without any advanced warning, most big-name retailers remain
  5. Hardware stores such as Home Depot remain open, even though more than ten people regularly gather in their aisles and at their checkouts.
  6. Meanwhile, businesses such as Plaintiff Eastlyn – which operates an event center and has the same capabilities as Home Depot to enact social distancing and sanitation measures – must remain closed to any-sized crowd.
  7. Lower volume businesses – such as jewelry stores – that can operate by appointment only and ensure compliance with health and safety requirements, have been arbitrarily shuttered.

 

  1. Some non-essential big-name retailers, such as Walmart, remain open simply because they have a minor grocery or hardware component, which somehow transmutes the entire store into an essential business. Walmart’s floorspace devoted to non-essential retail – such as the floorspace devoted to adult clothing – is allowed to remain open to shoppers, while other clothiers are forced to close in their entirety. Clearly the designation of adult clothing, among many other products and services, as non-essential is wholly unrelated to concerns of health, safety, or welfare because those products are permitted to be sold by some stores and not by
  2. The case of Walmaii begs the question as to whether a fitness club, or other non- essential business, could remain open simply by selling screwdrivers1 at the front
  3. Moreover, the Governor’s selection of certain essential products and services to the exclusion of others is totally arbitrary and is devoid of any relation to any legitimate purpose.
  4. For example, the Governor has declared alcohol to be an essential product, such that liquor stores are permitted to remain open during the pandemic. This is despite the well­ known health hazards of alcohol, as well as the strong link between alcohol use and the occurrence of domestic violence. See Intimate Partner Violence and Alcohol, World Health Organization, https://www.who.int/violence_injury_prevention/violence/world_report/factsheets/fs_intimate. pd f (last visited May 21, 2020).
  5. While Plaintiffs argue that all businesses should remain open so long as they can adhere to reasonable health and safety restrictions, certainly alcohol cannot legitimately  be classified as an essential product, to the exclusion of many other products and services that actually benefit the public health, safety, and welfare of the State of New Jersey.

 

 

 

1 According to Executive Order 107, the sale of hardware is considered an essential service.

 

  1. Presently, Plaintiffs – along with thousands of other businesses across the State of New Jersey – are forced to remain closed under the Governor’s Executive Orders, and they face the imminent threat of insolvency despite the existence of willing customers for their products and services.

COUNT ONE

(VIOLATION OF EQUAL PROTECTION)

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth
  2. The Constitution of the State of New Jersey proclaims, “All persons are by nature free and independent and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of

pursuing and obtaining safety and happiness.”  N.J. Const. aii. I,    1.

 

  1. In recognition of those freedoms inherent in all persons, the Constitution  of the  State of New Jersey guarantees equal protection of the laws, such that “[n]o person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any

civil or military right”  N.J. Const. art. I,    5.

 

  1. The aforesaid Executive Orders and actions deprive Plaintiffs of the equal protection of the law because they allow some businesses to operate but not Plaintiffs’ businesses, even though they are similarly
  2. The challenged Executive Orders also deprive Plaintiffs of their libe1iy  and property interests in performing services for willing customers when they  can do so safely and  in the same manner as other businesses that are allowed to

 

  1. Each individual Plaintiff is able to conduct business in full compliance with all of the rules imposed upon those businesses allowed to operate under  the  challenged  Executive Orders.
  2. There is no rational basis for Defendants to discriminate against the Plaintiffs and force their closure during the COVID-19 pandemic, based solely upon the products and services that they
  3. Furthermore, the challenged Executive Orders are not reasonably related to a legitimate governmental

WHEREFORE, Plaintiffs seek a declaration that the challenged Executive Orders and actions violate the Equal Protection Clause of the Constitution of the State of New Jersey, as well as a permanent injunction against fmiher infringements of their rights under this Clause, enjoining Defendants from enforcing the challenged Executive Orders and from issuing any future orders or rules similar to the invalid ones described in this action, along with any and all other relief the Court deems just.

COUNT TWO

(VIOLATION OF SUBSTANTIVE DUE PROCESS)

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth
  2. “The principle of substantive due process, founded in. . . our State Constitution, J. Const. art. I, 1, protects individuals from the ‘arbitrary exercise of the powers of government’ and ‘governmental power […] being used for [the] purposes of oppression.”‘ Felicioni v. Administrative Office of Courts, 404 N.J. Super. 382, 392 (App. Div. 2008) (quoting Daniels v.
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Williams, 474 U.S. 327, 331 (1986)).

 

  1. Due process requires “that a law shall not be unreasonable, arbitrary or capricious, and that the means selected shall bear a rational relation to the legislative object sought to be

obtained.” Robson v. Rodriquez, 26 N.J. 517, 522 (1958).

 

  1. The Governor’s classification of some businesses as essential, and others as non- essential, is completely arbitrary, capricious, and wholly disconnected from any legitimate purpose.
  2. Even though each individual Plaintiff is able to conduct business in full compliance with all of the rules imposed upon those businesses allowed to operate under the challenged Executive Orders, the Governor has nonetheless prohibited them from conducting
  3. Therefore, the Governor’s unprecedented Executive Orders shock the  conscience and unreasonably interfere with Plaintiffs’ deeply-rooted libe1iy and property rights, including the right to work, the right to contract, and the right to engage in commerce.

WHEREFORE, Plaintiffs seek a declaration that the challenged Executive Orders and actions violate the Due Process Clause of the Constitution of the State of New Jersey, as well as a permanent injunction against further infringements of their rights under this Clause, enjoining Defendants from enforcing the challenged Executive Orders and from issuing any future orders or rules similar to the invalid ones described in this action, along with any and all other  relief  the  Court deems just.

COUNT THREE (DECLARATORY AND INJUNCTIVE RELIEF)

  1. Plaintiffs hereby reallege the foregoing paragraphs of the Complaint as if they had been fully set forth
  2. Defendants have violated Plaintiffs’ civil rights as guaranteed by the Constitution of the State of New Jersey through their implementation and enforcement of the challenged

 

Executive Orders, which arbitrarily discriminate against Plaintiffs and many other businesses throughout the State.

WHEREFORE, Plaintiffs seek a declaration that the challenged Executive Orders and actions violate the Equal Protection Clause and Due Process Clause of the Constitution of the State of New Jersey, as well as a permanent injunction against further infringements of their rights under these Clauses, enjoining Defendants from enforcing the challenged Executive Orders and from issuing any future orders or rules similar to the invalid ones described in this action, along with any and all other relief the Court deems just.

DEMAND FOR TRIAL BY JURY

 

Plaintiffs hereby demand a trial by jury as to all issues so triable herein.

 

DESIGNATION OF TRIAL COUNSEL

 

Pursuant to the provisions of R. 4:25-4, Michael B. Lavery, Esq. and Michael L. Testa, Jr., Esq., are hereby designated as trial counsel on behalf of Plaintiffs.

RULE 4:5-1 CERTIFICATION

 

Pursuant to R. 4:5-1, the undersigned hereby certify that, to the best of their knowledge, information, and belief, the matter in controversy is not the subject of any other action pending in any other court or of a pending arbitration proceeding, no other action or arbitration proceeding is contemplated, and there are no other parties known who should be joined in this action.

RULE 1:38 CERTIFICATION

 

The undersigned hereby certify that confidential personal identifiers, if any, have been redacted from documents now submitted to the Court, and will be redacted from all documents submitted in the future in accordance with the Rules of Court.

 

 

By:                  Isl Michael B. Lavery Michael B. Lavery, Esq. (033241989) William H. Pandos, Esq. (114972014) James F. Moscagiuri, Esq. (029222001) Lavery, Selvaggi, Abromitis  & Cohen A Professional Corporation

1001 Route 517

Hackettstown, NJ 07840

(908) 852-2600

Counsel for Plaintiff,

New Jersey Republican State Committee

 

 

By:                 Isl Michael L. Testa Jr.

 

Michael L. Testa, Jr., Esq. (032092001) Testa, Heck, Testa & White

A Professional Association 424 West Landis Avenue Vineland, NJ 08360 Counsel for Plaintiffs,

John E. Pastas, d/b/a Pastas Barber Shop; 54th Street Liquor , LLC, dlbla Eastlyn Golf Course & The Greenview Inn; Mizzitraining, LLC; and Bucket Brigade Brewery, LLC

 

 

Dated: May 21, 2020

 

Civil Case Information Statement

 

 

  Case Details: CAPE MAY | Civil Part Docket# L-000168-20                                                                           

 

 

Case Caption: NEW JERSEY REPUBLICA N STATE C VS MURPHY PHILIP

Case Initiation Date: 05/21/2020

Attorney Name: MICHAEL B LAVERY

Firm Name: LAVERY SELVAGGI ABROMITIS & COHEN

Address: 1001 ROUTE 517

HACKETTSTOWN NJ 07840

Phone: 9088522600

Name of Party: PLAINTIFF : NEW JERSEY REPUBLICAN STATE CO

Name of Defendant’s Primary Insurance Company

(if known): None

Case Type: CIVIL RIGHTS

Document Type: Complaint with Jury Demand

Jury Demand: YES – 12 JURORS

Is this a professional malpractice case? NO

Related cases pending: NO

If yes, list docket numbers:

Do you anticipate adding any parties (arising out of same transaction or occurrence)? NO

 

Are sexual abuse claims alleged by: NEW JERSEY REPUBLICAN STATE CO? NO

 

 

Are sexual abuse claims alleged by: JOHN E. POSTAS? NO

 

 

Are sexual abuse claims alleged by: 54TH STREET LIQUOR, LLC? NO

 

 

Are sexual abuse claims alleged by: MIZZITRAINING. LLC? NO

 

 

Are sexual abuse claims alleged by: BUCKET BRIGADE BREWERY, LLC? NO

 

 

 

            THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE             

CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION

 

 

 

Do parties have a current, past, or recurrent relationship? NO

If yes, is that relationship:

Does the statute governing this case provide for payment of fees by the losing party? YES

Use this space to alert the court to any special case characteristics that may warrant individual management or accelerated disposition:

 

 

Do you or your client need any disability accommodations? NO

If yes, please identify the requested accommodation:

 

 

Will an interpreter be needed? NO

If yes, for what language:

 

Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO

 

 

 

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)

 

 

05/21/2020

Dated

 

/s/ MICHAEL B LAVERY

Signed


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