N.J. State Policemen's Benevolent Ass'n v. Murphy

• Decision Date: 11 February 2022
• Docket Number: DOCKET NO. A-1525-21, A-1548-21
• Parties: NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION, Plaintiff-Appellant, v. Philip D. MURPHY, Governor of New Jersey, Defendant-Respondent. New Jersey Superior Officers Law Enforcement Association, Plaintiff-Appellant, v. Philip D. Murphy, Governor of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

470 N.J.Super. 568

271 A.3d 333

NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION,¹ Plaintiff-Appellant,

v.Philip D. MURPHY, Governor of New Jersey, Defendant-Respondent.

New Jersey Superior Officers Law Enforcement Association, Plaintiff-Appellant,

v.Philip D. Murphy, Governor of New Jersey, Defendant-Respondent.

DOCKET NO. A-1525-21, A-1548-21

Superior Court of New Jersey, Appellate Division.

Argued February 8, 2022

Decided February 11, 2022

Frank M. Crivelli argued the cause for appellant New Jersey State Policemen's Association (Crivelli, Barbati & DeRose, LLC, attorneys, Frank M. Crivelli, Hamilton, of counsel and on the briefs; Donald C. Barbati, Princeton, and Michael P. DeRose, on the briefs).

Kevin D. Jarvis argued the cause for appellant New Jersey Superior Officers Law Enforcement Association (O'Brien, Belland & Bushinsky, LLC, attorneys; Kevin D. Jarvis, Moorestown, on the briefs).

Angela Cai, Deputy State Solicitor, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Jeremy M. Feigenbaum, State Solicitor, Angela Cai, and Donna Sue Arons, Assistant Attorney General, of counsel and on the brief; Carlene Dooley, Nathaniel Levy, Tim Sheehan, Marie Soueid, and Ryan Silver, Deputy Attorneys General, on the brief).

Michael R. Noveck, Assistant Deputy Public Defender, argued the cause for amici curiae New Jersey Office of the Public Defender, American Civil Liberties Union of New Jersey, Rutgers Criminal and Youth Justice Clinic, New Jersey Prison Justice Watch, Transformative Justice Initiative, and Salvation and Social Justice (Joseph E. Krakora, Public Defender, and American Civil Liberties Union of New Jersey Foundation, attorneys; Michael R. Noveck, of counsel and on the brief; Jeanne Locicero and Alexander Shalom, Newark, on the brief).

Jeff Dubner (Democracy Forward Foundation) of the District of Columbia and New York bars, admitted pro hac vice, argued the cause for amici curiae American Medical Association, American College of Correctional Physicians, and Medical Society of New Jersey (Greenbaum, Rowe, Smith & Davis, LLP, Jeff Dubner, Rachel L. Fried (Democracy Forward Foundation) of the District of Columbia and New York bars, admitted pro hac vice, and JoAnn Kintz (Democracy Forward Foundation) of the Colorado bar, admitted pro hac vice, attorneys; John Zen Jackson, Iselin, Rachel L. Fried, and Joann Kintz, on the brief).

Peter Demkovitz argued the cause for amicus curiae The New Jersey State Lodge of the Fraternal Order of Police (Markowitz and Richman, attorneys; Matthew D. Areman, on the brief).

Before Judges Fisher, Currier and Smith.

The opinion of the court was delivered by

FISHER, P.J.A.D.

COVID-19 has now killed more than 900,000 and hospitalized about 4,000,000 Americans. See Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, ––– U.S. ––––, 142 S. Ct. 661, 670, 211 L.Ed.2d 448 (2022) (dissenting opinion). At least 75,000,000 Americans have been infected since the virus hit our shores. The fatalities include more than 31,000 New Jerseyans. Nearly 20% of all New Jerseyans have contracted COVID-19 during the pandemic's course and, because it is a circumstance of importance here, 54% of those incarcerated in New Jersey have contracted COVID-19. We need not recount the countless ways the virus has impacted New Jerseyans in their workplaces, schools, recreational areas, and homes. The virus has had a devastating and drastic impact on our economy and our way of life, N.J. Republican State Comm. v. Murphy, 243 N.J. 574, 580-81, 236 A.3d 898 (2020) (observing that "laypeople, scientists, and legal scholars alike would agree that COVID-19 is a true disaster with widespread consequences"), as recognized in the emergency declarations issued by President Joseph R. Biden, Governor Philip D. Murphy, and our Chief Justice, that we alluded to in recently upholding Newark's imposition of a vaccination

mandate for its employees. See

In re City of Newark, 469 N.J. Super. 366, 387-89, 264 A.3d 318 (App. Div. 2021).

The recent rise of the Omicron variant generated a spike in infections and hospitalizations. On January 19, 2022, having considered information provided by the Centers for Disease Control and Prevention (CDC), Governor Murphy issued Executive Order 283, requiring, among other things, that corrections officers – because of the nature of the facilities in which they work – present proof of vaccination

by February 16, 2022, or face discipline, including the possibility of termination.

Executive Order 283's vaccination

mandate prompted The New Jersey State Police Benevolent Association (PBA) and the New Jersey Superior Law Enforcement Association (SOA), on behalf of their memberships,² to separately appeal³ to this court, arguing the Governor: lacked the authority to mandate vaccinations ; acted arbitrarily by failing to adequately tailor the executive order to the magnitude of the emergency; failed to comply with statutory procedural requirements; and violated the constitutional rights of appellants’ members. Finding no merit in any of appellants’ arguments, we dismiss the appeal.

I

We briefly explain the procedural events that brought us to this point.

On January 11, 2022, Governor Murphy re-declared a public health emergency by issuing Executive Order 280. Eight days later, the Governor issued Executive Order 283, which contains the provisions criticized by appellants in this appeal. Executive Order 283 superseded Executive Order 252's vaccine-or-test approach and imposes a vaccination

mandate for all workers in "covered high-risk congregate settings," which includes correctional facilities. The order requires covered workers – absent the approval of an application for an exemption⁴ – to obtain their "first dose of the primary series" of a vaccine by February 16, 2022, and to submit proof "that they are up to date with their COVID-19 vaccinations

by March 30, 2022, or within 3 weeks of becoming eligible for a booster dose, whichever is later." The order also requires "covered settings" to establish a disciplinary process for noncompliance that may include termination from employment.

Executive Order 283 also requires "covered settings" to continue mandating regular testing for workers already subject to testing under Executive Order 252 until the submission of sufficient proof of vaccination

. Executive Order 283 does not mandate testing after proof of vaccination is submitted, but it does not foreclose it.⁵ The order states that of the many driving forces behind these requirements was the desire to raise the protective floor through vaccinations for "congregate and health care settings because of the significant risk of spread and vulnerability of the populations served."

On Friday, January 21, 2022, appellants separately wrote to the Governor for a stay of Executive Order 283 pending appeal. Having received no response by Monday, January 24, 2022, appellants filed applications with this court for permission to move for a stay on an expedited basis. We immediately granted the request and provided a briefing schedule; the parties were directed to brief both the question whether a stay should issue and the merits of the appeal so that, if feasible, the court could rule on the merits of the appeal prior to Executive Order 283's initial February 16, 2022 deadline.

After receiving the principal briefs of both appellants and the Attorney General, the court advised the parties that it likely would proceed to hear the merits of the appeal. We have since received the helpful submissions of amici on both sides of the issue and have now heard the oral argument of counsel and amici.

No party claims that the manner in which the dispute has come before us is faulty or in any way deprives them of due process. And no party has argued that the court should not proceed to resolve the merits of the appeal.

II

A

It is beyond rational dispute that the Governor possessed the authority to issue Executive Order 283 under the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63 (the Disaster Control Act), which "vests the Governor with broad powers to provide for the health, safety and welfare of the people of the State during any ‘emergency.’ " Worthington v. Fauver, 88 N.J. 183, 193-94, 440 A.2d 1128 (1982) ; Kravitz v. Murphy, 468 N.J. Super. 592, 613-14, 260 A.3d 880 (App. Div. 2021). The Disaster Control Act defines an emergency as including a "disaster," which is "any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services." N.J.S.A. App. A:9-33.1(1). COVID-19 certainly fits that bill. In addition, the Governor need not wait until disaster strikes; if there is a substantial likelihood of a disaster, the Governor is empowered. Worthington, 88 N.J. at 196-97, 440 A.2d 1128.

B

Although unnecessary to our determination, we find the Governor was also empowered by the Emergency Health Powers Act, N.J.S.A. 26:13-1 to -31 (the Emergency Health Act), which authorizes the Governor to "take all reasonable and necessary measures to prevent the transmission of infectious disease." N.J.S.A. 26:13-12. Although this statute refers to the power of the Commissioner of Health to take such steps, N.J.S.A. 26:13-3(f) recognizes that the Commissioner's orders remain in effect "until superseded by order of the Governor" under the Disaster Control Act, clearly conveying that the Governor is empowered to Act to combat health emergencies and, on acting under the Disaster Control Act, is the final word on the subject.

Appellants argue the Emergency Health Act does not provide a basis for Executive Order 283 because of the June 4, 2021 enactment of L. 2021, c. 103 (codified at N.J.S.A. 26:13-32 to -36). Section 1 of this act (Chapter 103) declares that all executive...