Toms River Students, Businesses Sue To Overturn Murphy's Orders

TOMS RIVER, NJ — A lawsuit filed by a group of Toms River residents is asking state judges to overturn several of Gov. Phil Murphy's executive orders, calling them unconstitutional, arbitrary and discriminatory, demanding businesses be allowed to reopen and that in-person high school graduations be permitted.

The lawsuit was filed Thursday in Ocean County Superior Court on behalf of Car Wash And Beyond, Lakewood Road; Razberri Hair & Nail Design, Fischer Boulevard, and Perfect Swing Golf, Main Street; and six Toms River High School East seniors: Scott Convery, Justin Tucker, Allison Lanzano, Gina Dipasquale, Isabella Ghanbary, and Arianna Wilenta, represented by her mother Grizel Wilenta.

It challenges the legality of several of Murphy's executive orders and his delegation of decision-making to New Jersey State Police Col. Patrick Callahan, the state's emergency management director, and to state Education Commissioner Lamont Repollet over "the unconstitutional and arbitrary manner in which the orders have been applied," said Michael Deem, an attorney with RC Shea and Associates, the firm representing the group.

A spokesman for Murphy's office said the state does not comment on pending litigation.

"From day one, we've made a commitment to be guided by the facts and take any action necessary to protect the health and safety of New Jersey's 9 million residents," Murphy said March 21, when he issued the stay-at-home order, and he has repeatedly said all of the state's decision-making is driven by data and in consultation with public health and medical experts.

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The lawsuit is similar to one in Wisconsin; that state's Supreme Court struck down the state's "Safer-At-Home" order, stating that Democratic Gov. Tony Evers' administration overstepped its legal boundaries when crafting the order, and ruled it was "unlawful, invalid and unenforceable." Read more: Wisconsin Supreme Court Strikes Down 'Safer At Home' Order

Murphy established the state's coronavirus task force on Feb. 3. On March 9, he declared the public health emergency in Executive Order 103 and a week later ordered all schools closed, all nonessential businesses to shut down and banned public gatherings as the number of coronavirus cases began to quickly rise.

As of Thursday, there have been nearly 143,000 New Jersey residents who have tested positive for the virus, and nearly 10,000 have died from complications of the virus, according to the state health department. The growth in the number of cases and in the deaths has slowed over the last two weeks, leading Murphy to begin relaxing some of the restrictions that have been in place for nearly two months. Read more: NJ Coronavirus Updates: Here's What You Need To Know

Those changes have not come quickly enough for some; an order issued May 9 by Callahan barring in-person graduation celebrations has infuriated a number of parents and students. Small businesses, meanwhile, have been pushing for relief while big stores have continued to operate through the crisis — a disparity the suit says is based on arbitrary and discriminatory decisions.

"The precedent at stake in this lawsuit will extend far beyond the life of COVID-19," according to the suit. "If you give any government an inch they will take a foot and erode the checks and balances that protect individual liberties, thereby shortening the reach of the government."

The students have a constitutional right to assemble under the First Amendment, the suit says, and "have earned the right to choose to attend a socially distanced formal graduation ceremony."

The business plantiffs, which were among those deemed nonessential in Murphy's executive order, have not been among the ones allowed to reopen in Murphy's orders earlier this week, favoring "certain multimillion dollar corporations and their lobbyists" to the detriment of small businesses.

"The way the order (Executive Order 107) was written, and is now being applied, and in light of social distancing measures, (it) permits gatherings of hundreds at Lowes, Walmart, Home Depot, and Shop Rite, and come May 15, 2020, gatherings will be permitted down the Jersey Shore and its Boardwalks, yet mom-and-pop businesses cannot open, hair salons remain closed, and car wash businesses remain closed," the suit says.

The lawsuit says Murphy's Executive Order 103 declaring the public health emergency did not follow laws set out by New Jersey that require the governor to consult with the state health commissioner and the state emergency management director — or if he did, that is not spelled out in the order, which the suit says makes the order and others that followed it invalid.

The list of businesses deemed nonessential and closed indefinitely has "created a pandemic of its own — economic pandemic — that has spawned across this state and has been left without a cure. This is what happens when laws are enacted and carried out in an arbitrary, unreasonable, and capricious manner!" the suit says.

"Executive Order 107, in its arbitrary, unreasonable, and capricious fashion, and as it is presently being enforced, bears no rational relationship to current public health, safety, and welfare concerns of this state," the suit says.

Perfect Swing Golf, for example, operates by appointment with one person in the shop at a time, every two hours. "This plaintiff is prohibited from operating with only one person in the building at a time, yet Walmart can sell golf clubs with hundreds in the store at a time. Gas stations that also have car wash services on premises are allowed to operate the car wash, but independent car wash businesses cannot," the suit says. Hair and nail salons are are trained and certified in safety and sanitation and regulated by the New Jersey State Board of Cosmetology and Hairstyling, but are not being permitted to operate while wearing masks.

With regard to graduations, the suit says Murphy's Executive Order 104 is unconstitutional because it orders the Department of Education to take action that goes against existing legislation governing the department.

"The Legislature does not have the constitutional authority to provide for the management and control of free public schools," the suit said, which it says makes the order prohibiting schools from holding a socially responsible commencement ceremony stands "utterly arbitrary."

The suit asks the court for restraining orders and injunctions to block enforcement of Murphy's Executive Orders 103, 104, 107 and 138, and "prohibiting compelled social distancing while (wearing) masks;" to prevent the state from barring New Jersey graduates from participating in live and in-person commencement ceremonies if their schools want to hold them; and to allow businesses to operate again.

The full lawsuit can be read below:

Lawsuit by Toms River Stude... by Karen Wall on Scribd

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