Lawsuit seeks to reopen all NJ businesses, allow in-person graduations

TOMS RIVER — The owner of several businesses and three high school seniors have filed a lawsuit against Gov. Phil Murphy claiming the 38 executive orders issued in connection with the COVID-19 pandemic are unconstitutional and illegal.

Murphy's orders have been been with a growing grumbling of criticism from Republican lawmakers in recent weeks but until now they have faced few legal challenges.

Gun shops and gun ranges have sued to ask the federal courts to consider their businesses "essential" under the Second Amendment, while an Essex County priest and an Ocean County rabbi have sued in federal court claiming First Amendment protections for in-person religious gatherings, which are not allowed during the emergency.

In the latest lawsuit filed Thursday in Superior Court in Toms River, the owner of Car Wash and Beyond, Razberri Hair & Nail Design and Perfect Swing Golf — all non-essential businesses that were ordered to close in March — and Toms River High School East students Gina DiPasquale, Isabella Ghanbary and Arianna Wilenta — who want to have an in-person graduation ceremony — argue that the executive orders discriminate against non-essential businesses and violate the right to assembly.

The lawsuit, which names as defendants Murphy, State Police Superintendent Patrick Callahan, Education Commissioner Lamont Repollet and his assistant Adbulsaleem Hasan, also outlines steps that school districts could take to safely hold a graduation ceremony.

Murphy's sweeping pandemic orders have ranged from prohibiting gatherings of more than 10 people, to prohibiting evictions, to closing golf courses and state and county parks in an effort to slow the spread of the coronavirus, which has killed more than 10,000 residents in two months.

More recent orders have loosened some restrictions to allow, for example, non-essential businesses to conduct curbside transactions. Murphy also said that all Jersey Shore beaches should open by Memorial Day and on Friday announced that elective surgeries would begin May 26.

Murphy has said that the restrictions would be lifted as soon as public health officials say it is safe to do so. Hospitalizations have been declining since April 15.

"Gosh, golly, why can't you flip the switch and open the whole place up?" he asked rhetorically on Friday, then pointing to the 285 people who had been admitted to state hospitals the day before with COVID-19. At the same time, however, hospitals on Thursday discharged 357 patients that had battled COVID-19. More than 3,800 patients remain hospitalized for serious complications from the virus.

Executive Order 102,  issued on Feb. 3, established the administration's coronavirus task force. The next order declared a state of emergency and a public health emergency, which Murphy has renewed twice.

Michael J. Deem, attorney with the Toms River firm R.C. Shea & Associates, said the Legislature has given the governor the ability to declare a public health emergency only after conferring with both the state health commissioner and the state director of emergency management.

The lawsuit argues that the first executive order does not state that Murphy consulted with the director of emergency management.

"It's our contention that from the very beginning executive order 103 all the way to the present order are all void," Deem said.

Both Callahan and Health Commissioner Judith Persichilli have attended every news briefing with Murphy for the past two months. But Deem said the emergency declaration was still improper.

"Look at it like an infection. If one order is infected it will spread to others that rely upon the first infected order," he said. "We contend that by way of Executive Order 103, the governor improperly declared a  public health emergency, thereby effacing the remaining orders that rely upon 103 for its existence."

The lawsuit also notes the Wisconsin Supreme Court's 4-3 vote decision on Wednesday striking down Gov. Tony Evers' stay-at-home restrictions, ruling that his administration overstepped its authority when it extended them for another month without consulting legislators.

The lawsuit contends that the executive orders discriminate against non-essential businesses.

"You look at the car wash plaintiff. He has an independent establishment here in Toms River. He can't operate. But down the road the Exxon that happens to have a car wash on the premises, he can wash cars but my client can't. There seems to be no rhyme or reason why that is," Deem said.

If a court were to void the order, the high school seniors could have a "proper ceremony" with social distancing protocol in place, according to Deem.

The lawsuit includes a diagram of the football field at Toms River High School set up for social distancing prepared by an engineering firm.

"You could graduate 1,140 students on any football field in the state all socially distanced apart 7.5 feet," Deem said. "And we know that the Air Force Academy recently graduated 800 or 900 people at once all socially distanced. Toms River East has 350 student graduating. If you did the math and put them on the field at a minimum those students could be socially distanced by 23 feet. That's assuming we did this in one fell swoop with all 350 students."

Deem said the school could limit the number of relatives allowed to the ceremony and have room for them on the sidelines and the stands.

"We can all go to Lowe's or Home Depot and stand on line and be crowded with all these people and that seems to be fine if we're wearing a mask. Why can't these kids graduate if the school systems can come up with a plan to do so in a social responsible manner?" he said.

Deem said that while people are right to be concerned about COVID-19, they can also carry on their normal lives responsibly by wearing masks in public.

"There's no reason these businesses can't open up. The state's on the verge of going bankrupt and we've got small mom-and-pop stores that are at a point where they can't afford to feed themselves anymore. I see no reason why we can't open up the economy if we do it responsibly," Deem said.

The governor's office has not yet been served the lawsuit as of Friday morning.

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