: SUPERIOR COURT OF NEW JERSEY

PHILIP D. MURPHY, in his : MERCER COUNTY VICINAGE

official capacity as the : CHANCERY DIVISION – GENERAL
GOVERNOR of the STATE OF NEW : EQUITY PART
JERSEY, :
: DOCKET NO.:
Plaintiff, :
:
v. : CIVIL ACTION
:
JOHN MOOR, in his official :
capacity as the MAYOR of the :
CITY OF ASBURY PARK; the :
CITY OF ASBURY PARK; JANE :
DOES 1-10 (in their :
official capacity as agents :
or officers of the City of :
Asbury Park); and XYZ :
AGENCIES 1-10 (in their :
official capacity as :
agencies or offices of the :
City of Asbury Park). :
:
Defendants. :
:

BRIEF ON BEHALF OF PLAINTIFF IN SUPPORT OF ORDER TO SHOW CAUSE

AND APPLICATION FOR PRELIMINARY INJUNCTIVE RELIEF.

GURBIR S. GREWAL
ATTORNEY GENERAL OF NEW JERSEY
Attorney for Plaintiff
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625-0112

Christopher Weber (Attorney I.D. No. 012122013)

Emily Marie Bisnauth (Attorney I.D. No. 060562013)
Deputy Attorneys General
On the Brief
 TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT...........................................1

STATEMENT OF FACTS AND PROCEDURAL HISTORY.......................4

A. The COVID-19 Public Health Threat and Federally

Recommended Social Distancing Mitigation Strategy..........4

B. The Consequences of Not Abiding by Social

Distancing with Indoor Dining and Other Close-
Quarter Activities.........................................6

C. COVID-19’s Devastating Impact on New Jersey................8

D. Governor Murphy’s Actions to Combat COVID-19 in New

Jersey.....................................................9

E. Recent Incremental Scaling Back of EO107..................14

F. Defendants’ Non-Compliance with the Governor’s

Executive Orders..........................................16

STANDARD OF REVIEW.............................................17

ARGUMENT:

I. IT IS SUBSTANTIALLY LIKELY THAT THE STATE WILL

PREVAIL ON THE MERITS BECAUSE STATE LAW
PREEMPTS THE MUNICIPAL RESOLUTION....................19

II. THE REMAINING CROWE FACTORS WEIGH HEAVILY IN

FAVOR OF GRANTING PRELIMINARY INJUNCTIVE
RELIEF...............................................29

CONCLUSION.....................................................31

ii
 PRELIMINARY STATEMENT

The dangers presented by Coronavirus disease 2019 (“COVID-

19”) have led the State of New Jersey – like other states across

the country – to take unprecedented measures to protect the health

and safety of its residents. Thankfully, there exists a statutory

regime under New Jersey law to help the State respond to such an

emergency, set up by the Civilian Defense and Disaster Control Act

(“Disaster Control Act” or “DCA”), N.J.S.A. App. A:9-30 to -63,

and the Emergency Health Powers Act (“EHPA”), N.J.S.A. 26:13-1 to

-31. Pursuant to those statutes, once the Governor declares a

State of Emergency and/or a Public Health Emergency, he is afforded

significant statewide authority to handle the emergent and serious

risks that the State’s residents are facing. That is exactly what

happened in response to COVID-19. The Governor issued Executive

Order No. 103 (2020) to declare both a State of Emergency and a

Public Health Emergency, and has proceeded to issue a series of

Emergency Orders designed to limit the loss of life and to address

other public health dangers associated with COVID-19.

Executive Orders No. 107 and 150 (2020) reflect the Governor’s

priority of protecting the public health, safety, and welfare of

all New Jerseyans. The EOs recognize the inherent dangers of close

person-to-person contact, which leads to further spread of COVID-

19, and so these EOs restrict businesses from operating in-person,

indoor food and beverage services. In other words, the EOs make

1
clear that food and beverage establishments can offer takeout and

delivery services, and can offer outdoor food and beverage services

subject to comprehensive health and safety guidelines that help

ensure the public remains protected, but establishes that indoor

dining remains too risky at this time. The State has given reasons

why indoor dining presents concerns greater than outdoor dining –

including the lack of air ventilation in such enclosed spaces.

But despite the State’s clear rules, and its explanation of those

rules, the Asbury Park defendants have unilaterally decided to

permit opening of businesses for indoor food and beverage services,

effective this Monday, June 15, 2020.

The question this case presents is whether a municipality may

issue and enforce a rule contrary to the statewide rules that the

Governor has set up to protect all residents throughout this State

of Emergency. That question is answered by the Disaster Control

Act and by Executive Order Nos. 107, 108, and 150. Under the plain

terms of the DCA, it is “the duty of . . . each and every officer,

agent and employee of every political subdivision of this State

and of each member of all other governmental bodies, agencies and

authorities of any nature whatsoever fully to co-operate with the

Governor . . . in all matters affecting” the State of Emergency,

and it is “unlawful for any municipality or other subdivision or

any other governmental agency of this State to adopt any rule or

regulation or to enforce any such rule or regulation that may be

2
at variance with any . . . order, rule or regulation established

by the Governor” relating to that State of Emergency. N.J.S.A.

App. A:9-40. Wherever there is any doubt as to whether such a

variance occurs, “the determination of the Governor shall

control.” Ibid. There can be little doubt, of course, that a

resolution permitting businesses to open for indoor food and

beverage services violates that rule. And if any doubt were to

remain, Executive Order 108 resolves it, confirming that no

municipality shall enact or enforce any order, rule, regulation,

ordinance, or resolution which will or might in any way conflict

with Executive Order 107. In other words, while COVID-19 itself

presents complicated and significant challenges, this is a

straightforward preemption case, and one the DCA and Executive

Orders 107, 108, and 150 already resolve.

Not only is the State’s legal right to relief clear, but there

exists a compelling need for immediate relief here. As health

experts have found and the Governor in turn has codified, person-

to-person contact in enclosed spaces can accelerate the spread of

COVID-19. This is especially true in indoor spaces, when sharing

ventilation. Across industries and contexts, then, the reopening

of businesses requires careful calibration and planning. Yet the

City of Asbury Park has jumped the proverbial gun, potentially

exposing the citizens of the City and the State to the acceleration

of COVID-19’s spread – including beyond Asbury Park’s own borders.

3
This Court should order immediate relief to ensure that the

Governor’s statewide virus mitigation plan is followed.

STATEMENT OF FACTS AND PROCEDURAL HISTORY1

A. The COVID-19 Public Health Threat and Federally Recommended

Social Distancing Mitigation Strategy.

The discovery of COVID-19, also referred to as “severe acute

respiratory syndrome coronavirus 2” or “SARS-CoV-2,” at the end of

2019, and its eventual spread to the United States, are well-

documented.2 The virus’s spread was rapid: by March 3, 2020,

COVID-19 had infected more than 90,000 people and killed about

3,000 worldwide, and had reached the United States. Derrick Bryson

Taylor, A Timeline of the Coronavirus Pandemic, N.Y. Times, Mar.

27, 2020. President Trump declared a national emergency on March

13, 2020. Ibid.

1 The Facts and Procedural History are inextricably intertwined, and the State
has combined them for the Court’s convenience.
2 See, e.g., Michelle L. Holshue, et al., First Case of 2019 Novel Coronavirus
in the United States, N. Engl. J. Med. 382:929–36, Mar. 5, 2020, available at:
https://www.nejm.org/doi/full/10.1056/NEJMoa2001191; Natasha Khan, New Virus
Discovered by Chinese Scientists Investigating Pneumonia Outbreak, Wall Street
Journal, Jan. 8, 2020; Berkeley Lovelace, Jr. & William Feuer, CDC Confirms
First Human-to-human Transmission of Coronavirus in US, CNBC, Jan. 30, 2020,
https://www.cnbc.com/2020/01/30/cdc-confirms-first-human-to-human-
transmission-of-coronavirus-in-us.html; World Health Organization (WHO), Novel
Coronavirus (2019-nCoV) SITUATION REPORT – 1, Jan. 21, 2020,
https://www.who.int/docs/default-source/coronaviruse/situation-
reports/20200121-sitrep-1-2019-ncov.pdf?sfvrsn=20a99c10_m; WHO, Statement on
the Second Meeting of the International Health Regulations (2005) Emergency
Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV), Jan. 30,
2020, https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-
meeting-of-the-international-health-regulations-(2005)-emergency-committee-
regarding-the-outbreak-of-novel-coronavirus-(2019-ncov).

4
 COVID-19 spreads primarily from “person-to-person.” Centers

for Disease Control and Prevention (“CDC”), Coronavirus Disease

2019 (COVID-19), Protect Yourself.3 In response to this crisis,

public health officials and epidemiologists have emphasized the

need to slow the virus’s spread so that fewer people need to seek

treatment. Public Health Rallies to ‘Flatten the Curve’, Columbia

Mailman Sch. of Pub. Health, Global Health, Infectious Disease,

Mar. 13, 2020. In other words, one of the most effective methods

of reducing transmission of a contagion like COVID-19 is social

distancing; this is particularly true when, as with COVID-19, some

who contract it may be asymptomatic or only have mild, cold-like

symptoms. Camilla Rothe, et al., Transmission of 2019-nCoV

Infection from an Asymptomatic Contact in Germany, N. Engl. J.

Med. 382:970–71, Mar. 5, 2020. In response to COVID-19, the CDC

has recommended social distancing. Social distancing is defined

as “keeping space between yourself and other people outside of

your home,” which includes staying at least 6 feet from other

people. CDC, Keep Your Distance to Slow the Spread.4 To ensure

social distancing, states across the country, and countries across

the world, have adopts limits on when certain businesses may be

3 https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (last
visited June 12, 2020).
4 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-
distancing.html (last visited June 12, 2020).

5
open to the public, where members of the public would be coming

into contact and risking further spread of COVID-19.

B. The Consequences of Not Abiding by Social Distancing with

Indoor Dining and Other Close-Quarter Activities.

Even as New Jersey begins to allow outdoor activities with

reasonable restrictions (discussed below), the extensive and

prolonged interactions that occur at certain indoor facilities

continue to present significant risks, according to public health

experts. See, e.g., Hiroshi Nishiura, et al., “Closed environments

facilitate secondary transmission of coronavirus disease 2019.”5

From the very beginning of the COVID-19 outbreak in the United

States, the CDC has warned against the heightened dangers presented

by scenarios in which a large number of people remain in the same

indoor space for an extended period. A study issued on May 15,

2020, found that the communal nature of a church choir gathering

— approximately sixty to eighty people sitting in close proximity

for 2.5 hours, sharing snacks, stacking chairs at the end of

practice, and singing together — exponentially spread COVID-19.

CDC, High SARS-CoV-2 Attack Rate Following Exposure at a Choir

Practice—Skagit County, Washington, March 2020, Morbidity and

Mortality Weekly Report.6 From this, the study concluded, “SARS-

https://www.medrxiv.org/content/10.1101/2020.02.28.20029272v2.full.pdf+
html (last visited June 11, 2020).
6 https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6919e6-H.pdf (last visited
June 12, 2020).

6
CoV-2 might be highly transmissible in certain settings, including

group singing events. This underscores the importance of physical

distancing, including maintaining at least [six] feet between

persons, avoiding group gatherings and crowded places, and wearing

cloth face coverings in public settings . . . .” Id. at 609.

Super-spreading events can occur in any shared or communal

environment, see Thomas R. Frieden & Christopher T. Lee,

Identifying and Interrupting Superspreading Events – Implications

for Control of Severe Acute Respiratory Syndrome Coronavirus 2,

Perspective 26:6 (June 2020)7, and restaurants are no exception.

In a recent study in Guangzhou, China, researchers determined that

COVID-19 was likely transmitted from symptomatic individuals to

others in a restaurant by droplets of the virus that were pushed

through the air by air-conditioned ventilation. CDC, COVID-19

Outbreak Associated with Air Conditioning in Restaurant, Emerging

Infectious Diseases Journal.8 Some of the farthest infected

persons were roughly 14 feet away, more than double the commonly

held 6-foot social distancing guidelines. Ibid. The CDC has

7https://wwwnc.cdc.gov/eid/article/26/6/20-0495_article (last visited June 12,

2020).
8 https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article (last visited June 11,
2020).

7
cautioned that the highest risks for the spread of COVID-19 in

restaurants and bars comes from indoor seating.9

C. COVID-19’s Devastating Impact on New Jersey.

As of June 12, 2020, worldwide 7,540,679 confirmed COVID-19

cases have been reported, and at least 421,948 lives lost. Johns

Hopkins Univ., COVID-19 Dashboard.10 The United States currently

is at the center of the pandemic, with more confirmed cases

(2,023,347) and deaths (113,820) than any other nation. CDC,

Coronavirus Disease.11

The virus’s impact in New Jersey has been especially dire.

It was so immediately profound that, on March 25, 2020, the State

was declared a “major disaster area.”12 As of June 12, 2020,

165,816 cases and 12,443 deaths have come from New Jersey alone.

N.J. Dep’t of Health, COVID-19 Dashboard;13 see also Coronavirus

Disease 2019 (COVID-19), Protect Yourself; Johns Hopkins Univ.,

COVID-19 Dashboard.

9 https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-
employers/bars-restaurants.html (last visited June 11, 2020).
10 https://coronavirus.jhu.edu/map.html (last visited June 12, 2020).
11 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html
(last visited June 12, 2020).
12See

http://d31hzlhk6di2h5.cloudfront.net/20200326/86/70/ce/ee/760f4726f99a4a6a6b8
402d5/SUMMARY_4488-DR.pdf
(last visited June 12, 2020); https://www.fema.gov/news-
release/2020/03/26/president-donald-j-trump-approves-major-disaster-
declaration-new-jersey (last visited June 12, 2020).
13 https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml (last visited
June 12, 2020).

8
 D. Governor Murphy’s Actions to Combat COVID-19 in New Jersey.

In light of the dangers posed by COVID-19, Governor Philip D.

Murphy concurrently invoked his powers under the DCA and the EHPA,

and, upon consultation with the Commissioner of the Department of

Health (“DOH”) and the State Director of the Office of Emergency

Management (“OEM”), issued Executive Order 103, declaring both a

state of emergency and a public health emergency. Exec. Order No.

103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020) (“EO103”).

Thereafter, he issued a series of Executive Orders addressing a

variety of practical concerns, such as the need to ensure that

social distancing measures are effectuated in public and private

spaces, as well as the need to ensure that all State, county, and

municipal governments are acting in unison.

1. Measures Taken to Effectuate Social Distancing.

Within days of the issuance of EO103, events surrounding

COVID-19 continued to accelerate. The World Health Organization

declared COVID-19 to be a global pandemic; the President of the

United States declared a national emergency pursuant to his

constitutional powers and his statutory powers under the National

Emergencies Act, 50 U.S.C. §§ 1601 to 1651; and the CDC issued new

guidance regarding the necessity for social distancing. In order

to get out in front of this ever-evolving and increasingly alarming

situation, the Governor issued EO104. Exec. Order No. 104 (Mar.

16, 2020), 52 N.J.R. 550(a) (Apr. 6, 2020) (“EO104”).

9
 In EO104, the Governor laid out a virus-mitigation plan. The

Governor had to balance competing considerations when creating the

plan. He needed to permit “individuals to access food, clothing,

and other essential materials while also limiting unnecessary

person-to-person contact[.]” Id. at *28. He needed to weigh the

ability of the police to enforce social distancing measures without

being “unnecessarily diverted from responding to other COVID-19

related issues and maintaining public safety[.]” Id. at *29. He

also needed to determine how to deal with businesses that “are

vital to the economic health of the State” but “are also locations

where large numbers of individuals gather in close proximity[.]”

Id. at *16.

As part of the plan announced in EO104, the Governor ordered

Statewide closure of public and private schools, recreational

facilities, gyms and fitness centers, amusement centers, shopping

malls, and bars and restaurants (except for take-out and delivery

services), and all gatherings of 50 or more people — with some

limited exceptions. Id. at ¶¶ 1-2, 7-9; N.J. Office of Emergency

Management Administrative Order (“AO”) 2020-01. Three days later,

barbershops, hair salons, nail salons, spas, and tattoo parlors

were added to the list of closed services. AO2020-02.

Guided by developing information on COVID-19, on March 21,

2020, Governor Murphy issued EO107, which superseded EO104 “in

full,” and set forth a general stay-at-home requirement for all

10
New Jerseyans, with limited exceptions. Exec. Order No. 107 (Mar.

21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020) (“EO107”), ¶ 2; Bisnauth

Certification, Exhibit A. Under EO107, people were permitted

travel to “essential” businesses such as pharmacies, grocery

stores, medical supply stores, convenience stores, hardware and

home improvement stores, child supply stores, pet stores, liquor

stores, and certain other stores to the extent they provide “retail

functions.” Id. at ¶ 6. Public transportation services also could

continue to function. Id. at ¶ 4. Thus, the brick-and-mortar

premises for nearly all businesses, workplaces, and other entities

were closed to the general public.

Importantly, the EO established that “[a]ll restaurants,

cafeterias, dining establishments, and food courts, with or

without a liquor license, all bars, and all other holders of a

liquor license with retail consumption privileges,” were permitted

to operate normal business hours, but were “limited to offering

only food delivery and/or take-out services in accordance with

their existing liquor licenses.” Id. at ¶ 8; see also id. at ¶¶

2, 9(e) (requiring residents to stay at home unless, among other

things, they are obtaining takeout food from restaurants or dining

establishments). For those permitted to remain operational under

the EO, people on site must exercise social distancing measures to

the extent practicable, including “remaining out of congregate

settings, avoiding mass gatherings, and maintaining [at least six

11
feet] distance from others whenever possible.” Id. at *16. EO107

provided that the State Police Superintendent – not municipalities

– “shall have the discretion to make clarifications and issue

orders related to” the Order. Id. at ¶ 5.

All of the above-described measures have proven effective, as

the State’s numbers of deaths, cases, and hospitalizations have

dropped in recent weeks and the number of COVID-19 patients in New

Jersey’s hospitals have fallen by more than half. See, e.g., Brent

Johnson, Murphy Gives a Glimpse of What’s Next As He Slowly Reopens

N.J., NJ.com, May 14, 2020.

2. Measures Taken to Effectuate Unified Command Structure.

In addition to implementing social distancing policies, the

Governor also recognized the need for the State to have a single

policy and not assorted and contradictory policies at either the

State or local level. As a result, the Governor directed that the

“State Director of Emergency Management, in conjunction with the

Commissioner of DOH, . . . coordinate the relief effort from this

emergency with all governmental agencies.” EO103 at ¶ 1. Further,

“in order to ensure the most effective and expeditious

implementation” of containment and mitigation efforts, the

Governor ordered the “State Director of Emergency Management, in

conjunction with the Commissioner of DOH,” to “supervise and

coordinate all activities of all State, regional and local

political bodies and agencies . . . .” Id. at ¶ 2.

12
 The Governor mandated in EO103 and subsequent Orders that it

“shall be the duty” of “every person or entity in this State or

doing business in this State and of the members of the governing

body and every official, employee, or agent of every political

subdivision in this State and of each member of all other

governmental bodies, agencies, and authorities in this State of

any nature whatsoever, to cooperate fully” with the mandates of

the Executive Orders. Id. at ¶ 4 (emphasis added); EO104 at ¶ 4;

EO107 at ¶ 24.

In fact, on March 21, 2020, the Governor issued Executive

Order 108, which expressly pre-empts and invalidates “[a]ny county

or municipal restriction imposed in response to COVID-19 that in

any way will or might conflict with any of the provisions of

[EO107], or which will or might in any way interfere with or impede

its achievement[.]” Exec. Order No. 108 (Mar. 21, 2020), 52 N.J.R.

557(a) (Apr. 6, 2020) (“EO108”), ¶ 1; Bisnauth Cert., Exh. B.

EO108 further prohibited any “municipality, county, or any other

agency or political subdivision of this State” from enacting or

enforcing “any order, rule, regulation, ordinance or resolution

which will or might in any way conflict with any of the provisions

of [EO107], or which will or might in any way interfere with or

impede its achievement[.]” Id. at ¶ 2.

13
 E. Recent Incremental Scaling Back of EO107.

EO107 remains in effect until revoked or modified by the

Governor under his emergency powers. EO107 at ¶ 26.

Recently, as part of “New Jersey’s Road Back Plan,” Governor

Murphy has taken incremental steps to reopen the State safely while

preventing deaths and cases of the virus from surging.

Specifically, he has issued a series of Executive Orders which

have continued to gradually reopen parts of the State closed by

earlier Orders, but require that the same social distancing

guidelines continue to be followed. As Governor Murphy explained

on May 20, 2020:

This is a health crisis unlike any we’ve

faced, and an economic crisis unlike anything
we’ve faced. We understand both of those
points, but you don't solve the second until
you solve the first. We are quite dogged, and
we’re quite clear about that. And the data is
quite clear . . . Inside, no ventilation,
close contact, is a hard nut to crack. We’re
just not there yet. You're not there yet on
gyms. We’re not there yet on indoor dining. Do
we want to be there? Will we get there? Please,
God, yes. But we’re not there today. And we
just have to repeat that. This is not just
sort of a point of principle. This is a reality
that we are just not there yet as a public
health matter.

[Transcript of Governor’s Press Conference,

May 20, 2020 (emphasis added).14]

14 https://www.nj.gov/governor/news/news/562020/approved/20200520c.shtml.

14
 As part of the “Road Back Plan,” Governor Murphy issued

Executive Order 150 which, effective June 15, 2020, permits “in-

person service at outdoor areas” subject to strict and

comprehensive social distancing guidelines. Exec. Order No. 150

(Jun. 3, 2020), ___ N.J.R. ___ (“EO150”), ¶ 1 (emphasis added);

Bisnauth Cert., Exh. C. The Order also directs the Commissioner

of the DOH to issue health and safety standards for use by

establishments serving patrons in accordance with EO150. Id. at

¶ 3. Municipalities were authorized permit establishments to

“expand their footprint to outdoor areas,” and to implement

“additional density and social distancing requirements . . . on

food or beverage establishments offering in-person service at

outdoor areas” as long as they “are not inconsistent with [EO108].”

Id. at ¶ 5. But the order does not permit indoor dining.

EO 150 made explicit that all of the prior limits on indoor

dining remained in place. As the Order explained, any food and

beverage establishment offering in-person service had to comply

with certain “minimum requirements” including to “Prohibit patrons

from entering the indoor premises of the food or beverage

establishment, except to walk through such premises when entering

or exiting the food or beverage establishment in order to access

the outdoor area, or to use the restroom.” Id. at ¶ 1(e).

EO 150 also made explicit that the prior unified command

structure also remained in place. The Order reiterated that “[n]o

15
municipality, county, or any other agency or political subdivision

of this State shall enact or enforce any order, rule, regulation,

ordinance, or resolution which will or might in any way conflict

with any of the provisions of Executive Order No. 150 (2020), or

which will or might in any way interfere with or impede its

achievement.” Id. at ¶ 12.

F. Defendants’ Non-Compliance With the Governor’s Executive

Orders.

Defendants have decide to adopt and enforce a resolution that

conflicts with the State’s limits on indoor dining, without the

Governor’s authorization and over his objection. In particular,

on June 11, 2020, the City Council of the City of Asbury Park

convened and passed City of Asbury Park Resolution No. 2020-187

(“APR 2020-187”). See Bisnauth Cert., Exh. D.

APR 2020-187 expressly states that, effective June 15, 2020,

“businesses may also operate indoor food and beverage service at

whichever number is lower – 25% of capacity or 50 people –

following the directive of Executive Order 150 and Executive order

152 regarding the use of indoor facilities.” APR 2020-187 at ¶ 2.

The resolution is inconsistent with and contrary to EOs 107, 108,

and 150, and it is not “following the directive” of EOs 150 and

152. To be sure, while EO152 pertains to indoor and outdoor

gatherings, communal events, and activities (such as religious

services, political activity, and weddings), it is distinct from

16
EO150, which is specific to dining restrictions. Compare EO150

with Exec. Order. No. 152 (Jun. 9, 2020), ___ N.J.R. ___ (“EO152”),

*11 and *18. In other words, even if certain gatherings are

allowed, that does not mean that are allowed in indoor dining

establishments. In fact, many of the limits on gatherings under

EO 152 would be incompatible with the indoor dining context. APR

2020-187 unilaterally and without exception thwarts the Governor’s

carefully-planned attempt to incrementally reopen New Jersey’s

businesses, subject to careful and consistent public health and

social distancing measures.

On June 11, 2020, the Governor’s Counsel contacted counsel

for defendants in an effort to resolve this matter. Bisnauth Cert.,

Exh. E. Despite informing defendants that APR 2020-187’s conflicts

with Executive Orders 107 and 150 because it improperly permits

indoor dining, defendants have refused to rescind or otherwise

revise APR 2020-187.

As a result, plaintiff has filed the instant complaint and

order to show cause.

STANDARD OF REVIEW

The decision whether to grant temporary restraints or

preliminary injunctive relief is guided by Rule 4:52-1 to -7, and

the well-settled standard promulgated in Crowe, 90 N.J. at 132-

34. See also Pressler & Verniero, Current N.J. Court Rules, cmt.

3.1 on R. 4:52-1 (2020). Rule 4:52-1 permits the filing of an

17
order to show cause with temporary restraints and other interim

relief “[o]n the filing of a complaint seeking injunctive relief,”

and upon service to the defendant, among other requirements. R.

4:52-1(a) and -1(b).

A party seeking preliminary injunctive relief is required to

demonstrate: (1) irreparable harm if the relief is not granted;

(2) the matter rests on settled law and there is a likelihood of

success on the merits; and (3) a balance of the hardships to the

parties weighs in favor of granting injunctive relief. Crowe, 90

N.J. at 132-34; Waste Mgmt. of N.J., Inc. v. Union Cty. Utils.,

399 N.J. Super. 508, 520 (App. Div. 2008); see also Garden State

Equal. v. Dow, 216 N.J. 314, 320 (2013) (applying the Crowe factors

to a stay of court order); Pressler & Verniero, cmt. 3.1 on R.

4:52-1. When the issue presented concerns a matter of significant

public importance, the public interest must also be considered.

Waste Mgmt. of N.J., 399 N.J. Super. at 520; Garden State Equality,

216 N.J. at 320. Each of the four factors must be clearly and

convincingly demonstrated. Ibid.

ARGUMENT

For the reasons that follow, the Court should temporarily and

preliminarily restrain defendants from enforcing, implementing, or

otherwise executing APR 2020-187.

18
 POINT I

IT IS SUBSTANTIALLY LIKELY THAT THE STATE WILL

PREVAIL ON THE MERITS BECAUSE STATE LAW PREEMPTS
THE MUNICIPAL RESOLUTION._________________________

State law pre-empts the APR 2020-187. As creatures of the

State, local governments do not have the authority to supersede

State law. "It is fundamental in our law that there is no inherent

right of local self-government beyond the control of the State.”

Wagner v. Newark, 24 N.J. 467, 474 (1957). A “local government

may not act contrary to State law.” Summer v. Teaneck, 53 N.J.

548, 554-555 (1969). Further, a political subdivision of the

State “may not contradict a policy the Legislature establishes.”

Id. at 555 (emphasis added). If a local act does conflict with

“superior legal authority,” the local act is “preempted” and

therefore “invalid.” Redd v. Bowman, 223 N.J. 87, 108 (2015).

In order to decide whether APR 2020-187 conflicts with State

law or policy, the Court must first determine “whether the field

or subject matter in which the ordinance operates, including its

effects, is the same as that in which the State has acted.” Id.

at 108-09. Here, EOs 107, 108, and 150, as well as APR 2020-187,

were enacted in response to the same global pandemic that is COVID-

19. They both recognize the need to curtail the spread of the

virus and ensure the welfare of the population by, among other

things, regulating density, operation, and access to services and

businesses. Thus, the local resolution and its intended effects

19
share the same subject matter and operate within the same “field”

as the Governor’s Executive Orders.

Next, the Court must assess “whether, upon a survey of all

the interests involved in the subject, it can be said with

confidence that the Legislature intended to immobilize” local

governments “from dealing with local aspects otherwise within

their power to act.” Id. at 109. To aid in this determination,

the Supreme Court has promulgated a five-factor test:

1. Does the ordinance conflict with state

law, either because of conflicting
policies or operational effect (that is,
does the ordinance forbid what the
Legislature has permitted or does the
ordinance permit what the Legislature has
forbidden)?

2. Was the state law intended, expressly or

impliedly, to be exclusive in the field?

3. Does the subject matter reflect a need

for uniformity?

4. Is the state scheme so pervasive or

comprehensive that it precludes
coexistence of municipal regulation?

5. Does the ordinance stand as an obstacle

to the accomplishment and execution of
the full purposes and objectives of the
Legislature?

[Overlook Terrace Mngmt. Corp. v. Rent Control

Bd. of W. N.Y., 71 N.J. 451, 461-62 (1976).]

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Here, for the reasons explained below, all of the Overlook factors

militate heavily in favor of the State.

First, the DCA grants the Governor broad and exclusive police

power during a state of emergency. “The purpose” of the DCA “is

to provide for the health, safety and welfare of the people of the

State of New Jersey” during an emergency. N.J.S.A. App. A:9-33;

see also Worthington v. Fauver, 88 N.J. 183, 193-95, 209 (1982).

The DCA accomplishes this “by centralizing control of all civilian

activities having to do with such emergency under the Governor.”

Ibid. (emphasis added). The DCA vests “in the Governor control

over such resources of the State Government and of each and every

political subdivision thereof as may be necessary to cope with any

condition that shall arise out of such emergency.” Ibid. The

Governor also possesses “all other power convenient or necessary”

to address the emergency. Ibid.

For example, the “Governor is empowered to make such orders,

rules and regulations as may be necessary adequately to meet the

various problems presented by any emergency and from time to time

to amend or rescind such orders, rules and regulations.” N.J.S.A.

App. A:9-45. He may issue executive orders concerning “any matter

that may be necessary to protect the health, safety and welfare of

the people,” as well as “[s]uch other matters whatsoever as are or

may become necessary in the fair, impartial, stringent and

comprehensive administration” of the DCA. Ibid. “All such

21
orders, rules and regulations having to do with the conduct of

persons which shall be adopted by the Governor . . . shall be

binding upon each and every person within this State.” Ibid.

The DCA explicitly provides that the “Governor shall be in

command in the event of any actual or imminent or threatened

disaster or catastrophe in anywise connected with any emergency.”

N.J.S.A. App. A:9-48. The Governor may “assume control of all

emergency management operations,” N.J.S.A. App. A:9-51, and may

delegate to a person of his choosing – such as the Director of

Emergency Management - the authority to “take command anywhere

within this State of all emergency management activities,”

N.J.S.A. App. A:9-51.

The DCA not only explicitly centralizes power in the Governor

during an emergency, but it also expressly subordinates local

political subdivisions and the officials thereof. For example,

the DCA provides that it “shall be the duty of the members of the

governing body and of each and every officer, agent and employee

of every political subdivision of this State” to “co-operate with

the Governor” in “all matters affecting any emergency.” N.J.S.A.

App. A:9-40. It “shall be unlawful for any municipality or other

subdivision or any other governmental agency of this State to adopt

any rule or regulation or to enforce any such rule or regulation

that may be at variance with any such order, rule or regulation

established by the Governor.” Ibid. “In the event of a dispute

22
on the question of whether or not any such rule or regulation is

at variance with an order, rule or regulation established by the

Governor under this act, the determination of the Governor shall

control.” Ibid.

Many other features of the DCA reinforce the position of local

government officials relative to the Governor and the Director of

Emergency Management. For example, the DCA provides that an

“officer of a municipality or county who is charged with duties

pertaining to emergency management planning shall perform his

duties in accordance with rules and regulations promulgated by the

Governor.” N.J.S.A. App. A:9-45.1. Further, no county or

municipal Emergency Operations Plan “shall take effect without

approval by the State Office of Emergency Management.” N.J.S.A.

App. A:9-43.4. “Each county and municipal Emergency Operations

Plan shall conform to all relevant federal and State statutes,

rules and regulations concerning emergency operations.” N.J.S.A.

App. A:9-43.3. The reason for these provisions is to ensure a

“coordinated response and the efficient use of resources.”

N.J.S.A. App. A:9-43.2.

Thus, in the DCA, the Legislature evidenced an explicit and

indisputable intent for the Governor’s control in an emergency to

be “so pervasive or comprehensive that it precludes coexistence”

of contrary or inconsistent local orders. See Overlook, 71 N.J.

at 462. The Legislature “expressly” intended State law “to be

23
exclusive in the field.” See ibid. State law thus preempts the

Municipal and Enforcement Order, and the Court should grant

preliminary injunctive relief under the second and fourth Overlook

factors. See id. at 461-62.

Second, an examination of the Governor’s power to issue

executive orders and a comparison of EOs 107, 108, and 150 with

APR 2020-187 demonstrates that the first and fifth Overlook factors

(conflict and creation of obstacles, respectively) also militate

in favor of the State. The Governor’s Executive Orders are a

“superior legal authority,” see Redd, 223 N.J. at 108, which

preempt the local resolution. The issuance of an executive order

is not only “a well-accepted tool of gubernatorial action,” Bullet

Hole, Inc. v. Dunbar, 335 N.J. Super. 562, 577 (App. Div. 2000),

but is “inherent and essential to the performance of the primary

functions” for which the office of Governor was “created in the

Constitution,” Winberry v. Salisbury, 5 N.J. 240, 252 (1950). See

also CWA v Christie, 413 N.J. Super. 229, 255-56 (2010); Perth

Amboy Bd. of Educ. v. Christie, 413 N.J. Super. 590, 598-99 (App.

Div. 2010). Where, as here, the Governor issues an executive order

“pursuant to an express or implied authorization from the

Legislature,” he “exercises not only his own powers but those of

the Legislature.” Worthington, 88 N.J. at 208. “In such

circumstances the executive action should be supported by the

strongest of presumptions and the widest latitude of judicial

24
interpretation,” and “the burden of persuasion would rest heavily

upon any who might attack it.” Ibid.

Here, as discussed extensively above, the Governor issued an

Executive Order limiting the operations of restaurants and similar

dining establishments to takeout-only. And while the Governor

recently relaxed these restrictions by permitting responsible

outdoor dining, he did so only for those establishments that can

meet certain safety and health guidelines. He did not extend

this relaxation to indoor dining, which public health experts

resoundingly agree presents more challenging health risks relative

to the spread of COVID-19 than outdoor gatherings. Indoor dining

requires, among other things, proper ventilation – a concern not

associated with outdoor dining. If the Governor’s restrictions on

indoor dining are ignored, and Asbury Park’s businesses host

patrons for indoor dining, the probability of the virus’s spread

will accelerate and the State’s months-long efforts to mitigate

the spread will have been thwarted. The Governor’s “Road Back

Plan” is an effort to mitigate the spread of a deadly virus and

protect the health, safety, and welfare of the populace, while

simultaneously (and carefully) beginning to open the State’s

businesses back up to the public.

In this way, APR 2020-187 cannot be squared with the

multistep, carefully crafted approach by instead prematurely

permitting businesses to open for indoor dining. As the Supreme

25
Court has held, a “conflict” exists between State and local law

“if the latter permits what the former prohibits or, conversely,

prohibits what state law permits.” Mack Paramus Co. v. Paramus,

103 N.J. 564, 576 (1986).

Such a conflict is especially concerning in the context of an

emergency. In any Statewide emergency, let alone a pandemic, it

is fatal to at-risk populations for a municipality to issue

directives or orders contravening Executive Orders, thereby sowing

confusion amongst the population. The citizens need to take their

orders from a single directive – not a multitude of parochial

voices.15 As the Supreme Court noted, “where the state regulatory

scheme provides wide coverage and is broadly inclusive of the

subject matter, local controls” can be “disruptive, with no

appropriate place in the legislative plan.” Id. at 576. Thus,

APR 2020-187 both “conflicts” with the State Orders and serves “as

an obstacle to the accomplishment and execution” of their “full

purposes and objectives.” The Resolution is therefore preempted

under the first and fifth Overlook factors, and the Court should

grant preliminary relief. See Overlook, 71 N.J. at 461-62.

15Of course, the situation differs where the State itself allows a municipality
to respond to specific local needs based on a judgment that such responses will
benefit and will not hinder the State’s holistic emergency response (as it did
in allowing municipalities to continue regulating their parks). See EO108.
But that does not apply here, where the Governor has expressly permitted
businesses to open for outdoor dining only. See EO107 and EO150.

26
 Third, as explained in the Certification of Major Louis

Bucchere, the Commanding Officer of the New Jersey Office of

Emergency Management, “[d]uring an emergency such as the outbreak

of COVID-19, it is of the utmost importance that the responses to

the emergency be well coordinated.” See Bucchere Cert. at ¶ 7.

“Coordination is essential to provide consistency of action, to

avoid duplication of efforts, to prevent unnecessary use of

critical resources and to ensure accurate and prompt

communications with emergency personnel and the public.” Ibid.

“Unified command is the best and perhaps only way that the

coordination needed during an emergency can be attained.” Id. at

¶ 8. Indeed, in his Executive Orders responding to COVID-19, the

Governor “established such a unified command structure.” Id. at

¶ 9. Restrictions that certain municipalities or counties impose

at variance with the State Orders erode, undermine, and “confound[]

the benefits” of this unified command structure. Id. at ¶ 12.

“Local mandates,” such as Resolution at issue, “cause or risk

causing confusion among members of the public by creating

requirements that are different and in places contrary to the

Governor’s Executive Orders.” Ibid. “Members of the public may

thus conform to mandates” that the Governor has determined are

neither “necessary” nor “productive.” Ibid.

Indoor dining is a perfect example. Because individuals

freely travel between different municipalities, a rule allowing

27
for additional person-to-person contact at indoor dining in one

town will invariably lead to the spread of the communicable disease

in surrounding towns and across the State, which is precisely what

the Governor’s Executive Orders seek to prevent. Local mandates

also suggesting businesses can open will “risk[] the inefficient

deployment of finite resources,” id. at ¶ 14, requiring diversion

of personnel “from tasks that the Governor and the State Director

deem appropriate and necessary to contain the spread of COVID-19,”

to addressing unlawful opening of indoor dining by food and

beverage establishments. Ibid. Thus, there is “a need for

uniformity” in order to respond effectively to the COVID-19 crisis,

and APR 2020-187 is preempted under the third Overlook factor.

See Overlook, 71 N.J. at 461-62.

For all of the above-stated reasons, the State has a

substantial likelihood of succeeding on the merits, and the Court

should therefore grant preliminary injunctive relief.16

16It should be noted that a challenge to the EOs would require the filing of a
notice of appeal consistent with Rule 2:2-3(a)(2). The Appellate Division’s
exclusive authority to review the Governor’s orders is well-settled because he
is the State’s chief executive or administrative officer and, as such, a
challenge to the validity of his orders must be sought in the Appellate Division
pursuant to Rule 2:2-3(a)(2). See Commc'ns Workers of Am. v. Christie, 413
N.J. Super. 229, 251 (App. Div. 2010); Perth Amboy Bd. of Educ. v. Christie,
413 N.J. Super. 590, 597 n.5 (App. Div. 2010); Bullet Hole, Inc. v. Dunbar, 335
N.J. Super. 562, 571-72 (App. Div. 2000). The Superior Court is the proper forum
to hear this preemption challenge, but not to hear any defense that the State
Orders themselves violate New Jersey law.

28
 POINT II
THE REMAINING CROWE FACTORS WEIGH HEAVILY IN FAVOR
OF GRANTING PRELIMINARY INJUNCTIVE RELIEF. ____

During a global pandemic, with the need for a unified command

structure and a slow, careful approach to reopening the State’s

businesses, the remaining Crowe factors all weigh overwhelmingly

in favor of the State.

First, preliminary injunctive relief is absolutely “necessary

to prevent substantial, immediate and irreparable harm.”

Subcarrier Commc’ns, Inc. v. Day, 299 N.J. Super. 634, 638 (App.

Div. 1997). The harm here is measured in lives, not dollars. The

premature opening of businesses for indoor dining will cause the

spread of the virus to accelerates, which could lead to more lives

being lost. And it disrupts the ability of other municipalities

to protect their own residents, who can simply travel to Asbury

Park and participate in indoor dining – and then immediately return

to their communities, risking spread of COVID-19.

At bottom, the Resolution creates irreparable harm because it

disrupts the Governor’s careful calibration and balancing of

competing interests, a balance that applies on a Statewide basis.

By passing and certifying APR 2020-187, defendants undermined the

authority of the Governor in his efforts to protect the “health,

welfare and safety” of the citizens of New Jersey – including the

citizens of Asbury Park. N.J.S.A. App. A:9-33 and -45. Their

actions have indisputably harmed not just the Governor by usurping

29
his authority and interfering with the provision of governmental

services during a time of crisis, but the public as well by causing

confusion and exposing them to the spread of a deadly virus.

Second, for those same reasons, a balance of the equities

tips the scale in favor of the Governor. EOs 107, 108, and 150

are part of the State’s comprehensive and carefully crafted virus-

mitigation plans. Their mandates are consistent with federal the

directives and recommendations, as well as the recommendations of

public health professionals. Their sole objectives are to ensure

the safety, health, and welfare of the public. Temporary

restraints will not harm defendants, but rather, will benefit them

by ensuring compliance with the law and the advice of public health

professionals.

Third, and finally, for the foregoing reasons, consideration

of the public interest must yield a result in favor of the State.

As discussed in detail above, the purpose of the DCA was to provide

the Governor with the authority that is necessary to protect the

citizens of New Jersey. EOs 107, 108, and 150 are intended to

protect the public by preventing the spread of COVID-19 while still

ensuring that essential services are available to the public. APR

2020-187 interferes with those goals and, again, sows confusion

into the collective public consciousness. This is precisely what

the Legislature intended to avoid by enacting the DCA.

30
 Accordingly, for any and all of these reasons, the remaining

Crowe factors weigh in favor of the Governor, and the Court should

grant preliminary injunctive relief.

CONCLUSION

The Court should grant preliminary injunctive relief.

Respectfully submitted,

GURBIR S. GREWAL
ATTORNEY GENERAL OF NEW JERSEY

By: /s/Christopher Weber__________

Christopher Weber
Deputy Attorney General

and

Emily Marie Bisnauth

Deputy Attorney General

Dated: June 12, 2020

31