Bayshore Enterprises, Inc. v. Murphy
| Decision Date | 23 July 2021 |
| Docket Number | A-3873-19,A-3616-19 |
| Court | New Jersey Superior Court — Appellate Division |
| Parties | BAYSHORE ENTERPRISES, INC., d/b/a CAR WASH AND BEYOND, JERSEY SHORE HAIR, INC. d/b/a RAZBERRI HAIR & NAIL DESIGN, PERFECT SWING GOLF, LLC, SCOTT CONVERY, JUSTIN TUCKER, ALLISON LANZANO, GINA DIPASQUALE, ISABELLA GHANBARY, ELIZABETH CIOCHER, MADISON KELLY, ELAN HAIR STUDIO, BELLA SALON OF MANCHESTER, INC., DIMENSIONAL DESIGNS, INC., G'S GYM, LLC, SALON DIMARIA, INC., PANICO SALON, MOMENTS TO REMEMBER, INC., t/a CHARLES EDWARDS SALON and BANT INC., t/a MARTINS CASUALS, Plaintiffs-Appellants, v. PHILIP D. MURPHY, in his official capacity as the Governor of the State of New Jersey, PATRICK J.CALLAHAN, in his official capacity as the State Director of Emergency Management and as Superintendent of the New Jersey State Police, State of New Jersey Department of Education, DR. LAMONT REPOLLET, in his official capacity as Commissioner of the New Jersey Department of Education, and ADBULSALEEM HASAN, in his official capacity as Assistant Commissioner of the New Jersey Department of Education, Defendants-Respondents. 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-Appellants, v. PHILIP D. MURPHY, in his official capacity as the 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-Respondents. |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2021
On appeal from Executive Orders No. 103, et seq., 107 and 151 pursuant to transfers from the Superior Court of New Jersey Chancery Division, Ocean County, Docket No. C-000070-20 and Law Division, Cape May County, Docket No. L-0168-20.
R.C Shea & Associates, attorneys for appellants in A-3616-19 (Michael J. Deem, of counsel and on the brief).
Lavery, Selvaggi, Abromitis & Cohen, and Testa, Heck, Testa & White, PA, attorneys for appellants in A-3873-19 (Michael B. Lavery and Michael L. Testa, Jr., of counsel and on the briefs; William H. Pandos, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondents (Jeremy M. Feigenbaum, State Solicitor, and Kevin R. Jespersen, Assistant Attorney General, of counsel and on the briefs; Deborah A. Hay and Kai W. Marshall-Otto, Deputy Attorneys General, on the briefs).
Before Judges Rothstadt, Mayer, and Susswein.
These consolidated appeals challenge the validity of Executive Orders (EOs) issued by New Jersey's governor in response to the coronavirus (Covid-19) pandemic that infected and spread across almost the entire world since at least early 2020. In A-3616-19, appellants (Bayshore appellants) challenge EOs 103-186 and argue the following points:
Appellants in A-3873-19 (RSC appellants) challenge EO 107 and argue the following two points:
Since the filing of these appeals, much has changed about the pandemic because of the introduction of preventative health measures and vaccines that thwart the spread of the deadly virus that has so far taken the lives of in excess of 600, 000 people in our country, including 23, 687 in New Jersey. Most recently, and after these appeals were submitted for our consideration, New Jersey enacted L. 2021, c. 103, recognizing the diminution of Covid-19's impact on its citizens and effectively terminating most of the Covid-19 related EOs as of July 4, 2021, including orders numbered 104, 107, and 151. Also, the Governor issued a new EO, numbered 244, that terminated the public health emergency he originally declared in EO 103. Exec. Order No. 244 (June 4, 2021), ___ N.J.R.___ (___).
According to defendants, these actions have rendered the issues before us moot because any "decision [by us] would thus have no practical effect." The Bayshore appellants disagree and contend that because the recently enacted legislation leaves the Governor with "the ability to re-impose the restrictive and unconstitutional Orders at any time" the issues fall into the category of cases that "are of substantial importance, likely to reoccur, and capable of evading review." The RSC appellants further argue that under the "voluntary cessation doctrine" the appeals are not moot.
"Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Stop & Shop Supermarket Co., LLC v. Cnty. of Bergen, 450 N.J.Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas Hosp., 415 N.J.Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, [or] a judgment cannot grant effective relief." Ibid. (alterations in original) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J.Super. 242, 243 (App. Div. 1993)). Furthermore, "[a]n issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Comando v. Nugiel, 436 N.J.Super. 203, 219 (App. Div. 2014) (alteration in original) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J.Super. 254, 257-58 (App. Div. 2006)).
We have carefully considered the parties' contentions in light of these governing legal principles and conclude that the issues before us are moot and for that reason, both appeals are dismissed.
In order to give context to our determination that the issues raised by appellants are moot, we begin by reviewing the challenged EOs and the relief sought by the parties. We choose not to recite in detail either the nature of the pandemic, its effect on our health care system and the people employed in the health care fields, its tragic impact on our population and economy, the world's response, or our federal government's actions or omissions during the past year and a half. We are confident that these facts are not only well known to the parties before us, but also to the general public.[1] We turn to the orders issued in response to the pandemic.
On February 3, 2020, Governor Murphy issued EO 102, setting forth then-known facts about Covid-19, and establishing a coronavirus task force. Exec. Order No. 102 (Feb. 3, 2020), 52 N.J.R. 366(b) (Mar. 2, 2020). The task force was staffed by employees of the New Jersey Department of Health (DOH), chaired by the Commissioner of the DOH, and consisted of agency heads or their designees from the Department of Human Services, the Department of Law and Public Safety, the New Jersey State Police, the Department of Education (DOE), and the Office of Homeland Security and Preparedness. It reported directly to the Office of the Governor and was "charged with coordinating all State efforts to appropriately prepare for and respond to the public health hazard posed by the virus," including consulting and coordinating with State departments and agencies, the federal government, hospitals and other health care facilities, and local health departments. Ibid.
As discussed in greater detail infra, the Governor also issued numerous additional EOs, responding to the ever-evolving public health threat created by Covid-19.[2] As legal authority for the EOs, the Governor cited to the New Jersey Constitution, the EHPA, and the Disaster Control Act, as well as statutes permitting the Governor to activate the National Guard, N.J.S.A. 38A:2-4 and N.J.S.A. 38A:3-6.1. The Governor also held regular public briefings in which he and members of the Coronavirus Task Force spoke to the public about the State's responsive measures. And, the State operated a website with up-to-date Covid-19 information.[3]
The Governor first declared a public health emergency and state of emergency on March 9, 2020. Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020). In EO 103 the Governor reviewed known facts about Covid-19 and acknowledged the public health emergencies announced by the World Health Organization (WHO) and the Department of Health and Human Services (DHHS). Ibid. The Governor then stated that "the spread of COVID-19 within New Jersey constitutes an imminent public health...
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