Lawsuit by Toms River Students, Businesses, Against Gov. Phil Murphy's Coronavirus Executive Orders

R.C.
SHEA & ASSOCIATES

Counsellors At Law, P.C.
244 Main Street – PO Box 2627
Toms River, New Jersey 08754-2627
Tel: (732) 505-1212 / Fax: (732) 505-0423
Attorney Id.# 02039-1998
Attorney for Plaintiff
File Number:
: SUPERIOR COURT OF NEW JERSEY
BAYSHORE ENTERPRISES, INC., d/b/a : CHANCERY DIVISION -
CAR WASH AND BEYOND, : OCEAN COUNTY
JERSEY SHORE HAIR, INC. d/b/a :
RAZBERRI HAIR & NAIL DESIGN, : Docket No.:
PERFECT SWING GOLF, LLC, :
SCOTT CONVERY, JUSTIN TUCKER, :
ALLISON LANZANO, GRISEL :
WILENTA as administrator Ad :
Prosequendum for ARIANNA WILENTA, :
GINA DIPASQUALE, and ISABELLA :
GHANBARY, :
:
:
Plaintiffs, :
vs. : CIVIL ACTION
:
:
PHILIP D. MURPHY, in his official : VERIFIED COMPLAINT
capacity as the Governor of the State of : FOREMERGENT ORDER TO
New Jersey, PATRICK J. CALLAHAN, in : SHOW CAUSE FOR WITH
his official capacity as the State Director of : EMERGENT INJUNCTIVE
Emergency Management and as : RELIEF AND DECLATORY
Superintendent of the New Jersey State : JUDGMENT
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 Asst. Commissioner of the New :
Jersey Department of Education, :
:
Defendants. :
PREAMBLE
The loss of liberty is at hand.

Every day in America, mayors and governors -- not one
of whom is constitutionally or lawfully empowered to author
laws and assign punishments for their noncompliance -- are
imposing new standards of behavior that nullify liberty in the
name of public safety.
. . . [T]he consequences to personal liberty in a free
society that are inevitable when those in whose hands we have
reposed the Constitution for safekeeping have failed us. Their
failures have also been a violation of law.
Take the governor of New Jersey, for example. In a
television interview with . . . Tucker Carlson . . . Gov. Philip
Murphy uttered the words "the Bill of Rights is above my pay
grade." He then went on to confess that he had not considered
the effect of his restrictive executive orders on the Bill of
Rights. His orders are similar to those in other states, yet his are
-- by his own words -- born in ignorance.
....
The Constitution requires that every office holder and
government employee in the land -- from the president to a
public school janitor, from a governor to a police recruit -- take
an oath to support the Constitution. Murphy took that oath
when he became the governor of New Jersey in January 2018.
The Constitution includes its 27 amendments, the first 10 of
which have been referred to, since 1791, as the Bill of Rights.
The Bill of Rights was written by James Madison to
restrain the federal government from infringing upon natural
rights, the personal freedoms that are integral to our humanity
and which form the fabric of American values. The 14th
Amendment, enacted in 1868, generally imposes the Bill of
Rights upon the states.
Hence, even though the First Amendment reads, in part,
"Congress shall make no law ... " abridging the freedoms of
peaceable assembly, petitioning the government, following
religious beliefs and exercising free speech and press, today,
that language is universally accepted as commanding that no
government shall infringe upon those freedoms. This is
Constitutional Law 101.
It is inconceivable that Murphy does not know this.
If his comment to [Tucker Carlson] was intended as a
joke, it was a sick one. The governor's agents have utterly
trampled the rights of my fellow New Jerseyans to assemble
peacefully, to tell the governor what they think of him and to
ask God to intercede in this madness.
. . . In Murphy's New Jersey, one can sit in a car and
wait in line at McDonald's for an order of paper-wrapped
cheeseburgers and fries, but one cannot sit in a car and wait in
line to pick up cellophane-wrapped palms from a box in a
Catholic church parking lot on Palm Sunday.
Nor can one sit in a car in a line at a town square -- the
quintessential venue for expressing political beliefs and
grievances with the government -- and shout, in unison, what
one thinks of Phil Murphy.
That's because the governor and his folks have told
local and state police -- many of whom I know hate doing this
because they believe in the Bill of Rights -- that their job is to
disperse people, no matter the reason for their gathering.
Let's give the governor his due. He says, correctly, that
it is his job to protect the health, safety and welfare of all
persons in New Jersey. The Tenth Amendment reserves that
right and the power to exercise it -- called police power -- to the
states. Stated differently, the courts have ruled that the states
never ceded away police power to the federal government when
they joined the Union.
But all state power must be exercised subject to
individual natural rights protected by the U.S. Constitution. In
New Jersey's case, natural rights are also protected by the New
Jersey Constitution. So, Murphy is profoundly wrong if he
thinks that New Jersey's police power can trump the federal --
and state-protected and constitutionally enumerated rights in
the Bill of Rights. And his efforts to make light of that or to
evade confronting it show that he is unfit for office.
When I have made these arguments on Fox, I am often
met with the view that it is Murphy's job -- like that of all
governors -- to balance personal liberty and public safety, and
we should give him the benefit of the doubt. That balance
argument is a red herring made to seduce the unwary.
What is the relationship of liberty to safety in a free
society? It is not balance. King George III claimed he was
balancing the rights and safety of the colonists in 1776.
The relationship between liberty and safety is bias -- a
bias in favor of liberty. Liberty is the default position because
liberty is the birthright of every person. Government doesn't
grant us our liberty. Free people grant the government its
powers. We enumerate those powers and impose restraints on
their exercise in the Constitution and require everyone in whose
hands we have reposed that Constitution to comply with it.
Thomas Jefferson knew this when he characterized our
rights as "inalienable" in the Declaration of Independence. And
Madison knew it when he crafted the Ninth Amendment so as
to bar the government from denying or even disparaging
natural rights too numerous to enumerate.
If Murphy does not know this, he is unfit for office. He
is also unfit for violating his solemn public oath and the public
trust and for trampling human freedom.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The
Washington Times. He is the author of nine books on the U.S. Constitution.
NATURE OF THE ACTION
1. “Our protection against all kind of fanatics and extremists, none of whom
can be trusted with unlimited power over others, lies not in their forbearance but in the
limitations of our Constitution.” American Communications Assn. v. Douds, 339 U.S.
382, 439 (1950).
2. The precedent at stake in this lawsuit will extend far beyond the life of
COVID-19. 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.
3. In December of 2019, a novel coronavirus (now known as “COVID-19”)
emerged in Wuhan, China. Since the discovery of the virus, more than 10,000 cases have
been confirmed in China with more than 100 additional cases confirmed across 22 other
countries, including the United States.
4. As COVID-19 spread and outbreaks were confirmed in other countries, the
United States and, in particular, New Jersey, began implementing safety measures. In
particular, Governor Murphy, pursuant to his duty and responsibility to protect the health
and wellbeing of the state’s residents, signed 38 separate Executive Orders (hereinafter
referred to as “E.O.”) beginning with E.O. 102 which established a Coronavirus Task
Force on February 3, 2020.
5. Following the establishment of a Coronavirus Task Force through E.O.
102, Governor Murphy signed 37 additional Executive Orders.

6. Executive Orders are a well- accepted tool of gubernatorial action and in
New Jersey the authority of a Governor to issue an Executive Order stems for the State
Constitution, and by the Statutes of this State, as pointed-out by Governor Murphy in
E.O. 102.
7. In particular, the authority of the Governor derives form Article V of the
State Constitution which states that “the executive power shall be vested in a Governor.”
N.J. Const. art. V, §1, ¶ 1.
8. “The Governor shall take care that the laws be faithfully executed. To this
end he shall have power, by appropriate action or proceeding in the courts brought in the
name of the State, to enforce compliance with any constitutional or legislative mandate,
or to restrain violation of any constitutional or legislative power or duty, by any officer,
department or agency of the State; but this power shall not be construed to authorize any
action or proceeding against the Legislature.” N.J. Const. art. V, §1, ¶ 11.
9. One method available for the Governor to ensure that the laws are
“faithfully executed” is to issue an executive order. Kenny v. Byrne, 144 N.J. Super. 243,
251 (App. Div. 1976).
10. However, one must keep in mind that the powers of the government shall
be divided among three distinct branches of government: legislative, judicial and
executive. Therefore no person or persons belonging to or constituting one branch, such
as a Governor, shall exercise any of the powers properly belonging to either of the
others, except where expressly provided in the Constitution.

11. Therefore, emergency executive power can be an unconstitutional
usurpation of legislative authority either when the executive acts contrary to the express
or implied will of the Legislature or when the Legislature has failed to act. Executive
Orders that are created without proper authority are illegal and unenforceable.
THE PARTIES
12. Bayshore Enterprises, Inc., d/b/a Car Wash and Beyond, is a domestic, for
profit New Jersey Corporation, doing business in the Township of Toms River, County of
Ocean, State of New Jersey, and which has been identified as a non-essential business
and ordered to close indefinitely.
13. Jersey Shore Hair, Inc. d/b/a/ Razberri Hair & Nail Design, is a domestic,
for profit New Jersey Corporation, doing business in the Township of Toms River,
County of Ocean, State of New Jersey, and which has been identified as a non-essential
business and ordered to close indefinitely.
14. Perfect Swing Golf, LLC, is a domestic, for profit New Jersey Corporation,
doing business in the Township of Toms River, County of Ocean, State of New Jersey,
and which has been identified as a non-essential business and ordered to close
indefinitely
15. Scott Convery, Justin Tucker, Allison Lanzano, Grisel Wilenta as
administrator ad prosequendum for Arianna Wilenta, Gina DiPasquale and Isabella
Ghanbary, reside in the Township of Toms River, County of Ocean, State of New Jersey,
and are graduating Seniors at Toms River High School East who have a constitutional
right to assemble and who have earned the right to choose to attend a socially distanced
formal graduation ceremony.
16. The defendants, collectively, are state government entities and officials
organized under the Constitution and laws of the State of New Jersey.
SUBSTANTIVE ALLEGATIONS AS TO ALL PLAINTIFFS
a. The COVID-19 Executive Orders Violate the Privileges and Immunities

Clause of the New Jersey Constitution;
b. The COVID-19 Executive Orders are invalid because they were not
implemented in accordance with the applicable enabling legislation.
17. On February 3, 2020, Governor Murphy issued the first of a series of
Executive Orders following the CODIV-19 outbreak, and in particular he created the
Coronavirus Task Force.
18. On March 9, 2020, Governor Murphy declared a State of Emergency and
Public Health Emergency through EO 103 which states, in part,
WHEREAS, the Constitution and statutes of the State

of New Jersey, particularly the provisions of N.J.S.A. 26:13-
1 et seq., App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and
N.J.S.A.38A:2-4 and all amendments and supplements
thereto, confer upon the Governor of the State of New Jersey
certain emergency powers;
NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of

the State of New Jersey, in order to protect the health, safety
and welfare of the people of the State of New Jersey, DO
DECLARE and PROCLAIM that a Public Health Emergency
and State of Emergency exist in the State of New Jersey, and I
hereby ORDER and DIRECT the following:
....
WHEREAS, the facts as set forth above and consultation with the
Commissioner of DOH confirms that there exists a public health emergency
in the State; and
... .
3. Given the concurrent invocation of both a State

of Emergency pursuant to N.J.S.A. App.A.:9-33 et seq. and
a Public Health Emergency as contemplated by N.J.S.A.
26:13-1 et seq., I reserve the right as specifically
contemplated by N.J.S.A. 26:13- 3 to exercise the authority
and powers specific to the Emergency Health Powers Act as
I deem necessary and appropriate to ensure the public health
for New Jersey’s residents.
....
6. I authorize and empower the executive head of
any agency or instrumentality of the State government with
authority to promulgate rules to waive, suspend, or modify
any existing rule, where the enforcement of which would be
detrimental to the public welfare during this emergency,
notwithstanding the provisions of the Administrative
Procedure Act or any law to the contrary for the duration of
this Executive Order, subject to my prior approval and in
consultation with the State Director of Emergency
Management and the Commissioner of DOH. Any such
waiver, modification, or suspension shall be promulgated in
accordance with N.J.S.A. App. A:9-45.
....
7. All State agencies, and specifically the
Departments of Banking and Insurance, Health, Human
Services, Education, and the Civil Service Commission are
authorized to take appropriate steps to address the public
health hazard of COVID-19, including increasing access
and eliminating barriers to medical care, protecting the
health and well-being of students, and protecting the health
and well-being of State, county, and municipal employees
while ensuring the continuous delivery of State, county, and
municipal services.
....
14. This Order shall take effect immediately and shall remain
in effect until such time as it is determined by me that an
emergency no longer exists.
19. E.O. 103, which lays the foundation for all subsequent COVID-19 related
Orders, was not properly implemented. This is significant because, while Executive
Orders are a well- accepted tool of gubernatorial action in New Jersey, the authority of a
Governor to issue an Executive Order stems for the State Constitution and by the Statutes
of this State, as acknowledged by Governor Murphy in E.O. 102. Therefore by the
Governor’s failure to follow the conditions of the enabling statute, N.J.S.A. 26:13-3,
Executive Order 103, et seq. are invalid.
20. More specifically, a Governor may not declare a public health emergency
unless it is done “with the consultation of the commissioner [of the DOH] and the
Director of the State Office of Emergency Management . . .” N.J.S.A. 26:13-3. However,
nowhere in any of the “WHEREFORE” clauses of E.O. 103 does the Governor state that
he first consulted with the commissioner and the Director of the State Office of
Emergency Management before empowering each of them and before executing Order
103.
21. In fact, a similar holding was recently made by the Wisconsin Supreme
Court in Wisconsin Legislature v. Secretary-Designee Andrea Palm, decided May 13,
2020. https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=260868
22. Furthermore, the Governor has “authorize[d] and empower [d] the executive
head of any agency or instrumentality of the State government with authority to
promulgate rules to waive, suspend, or modify any existing rule, where the enforcement
of which would be detrimental to the public welfare during this emergency,
notwithstanding the provisions of the Administrative Procedure Act or any law to the
contrary for the duration of this Executive Order.” (Emphasis added) This too is
improper.
23. “Simply put, an Executive Order cannot amend or repeal a statute.”
Williamson v. Treasurer, 357 N.J. Super. 253, 272 (App. Div. 2003). Moreover, a
Governor must act with express or implied power from the Legislator. Bullet Hole, Inc. v.
Dunbar, 335 N.J. Super. 562, 575 (App. Div. 2000). Therefore, when Governor Murphy
extended certain authority to the Department of Education, as noted above, without first
having complied with the enabling legislation, he infringed upon the Separation of
Powers (N.J. Const. art. III, ¶ 1) because he did not have the ability to covey, namely the
“authority to promulgate rules to waive, suspend, or modify any existing rule, where the
enforcement of which would be detrimental to the public welfare during this emergency,
notwithstanding the provisions of the Administrative Procedure Act or any law to the
contrary.” (emphasis added)
24. Notwithstanding the above, on May 6, 2020, Governor Murphy issued
Executive Order 138, extending the Public Health Emergency in New Jersey. In
pertinent part, the Order says

WHEREAS, the facts as set forth above and
consultation with the Commissioner of DOH confirm that the
spread of COVID-19 in New Jersey constitutes an ongoing
public health hazard that threatens and presently endangers
the health, safety, and welfare of the residents of one or more
municipalities or counties of the State, and it is necessary and
appropriate to take action against this public health hazard to
protect and maintain the health, safety, and welfare of New
Jersey residents and visitors; and
WHEREAS, the facts as set forth above and

consultation with the Commissioner of DOH confirm that
there exists a public health emergency in the State; and
WHEREAS, the Constitution and statutes of the State

of New Jersey, particularly the provisions of N.J.S.A.
26:13-1 et seq., N.J.S.A. App. A: 9-33 et seq., N.J.S.A.
38A:3-6.1, and N.J.S.A. 38A:2-4 and all amendments and
supplements thereto, confer upon the Governor of the State
of New Jersey certain emergency powers, which I have
invoked;
NOW, THEREFORE, I, PHILIP D. MURPHY,

Governor of the State of New Jersey, by virtue of the authority
vested in me by the Constitution and by the Statutes of this
State, do hereby DECLARE and PROCLAIM that the Public
Health Emergency declared in Executive Order No. 103 (2020)
pursuant to the EHPA, N.J.S.A. 26:13-1, et seq., continues
to exist throughout the State of New Jersey, and I hereby
ORDER and DIRECT:
1. All Executive Orders adopted in whole or in

part based on the authority under the EHPA to respond to the
Public Health Emergency presented by the COVID-19
outbreak remain in full force and effect.
2. All actions taken by any Executive Branch

departments and agencies in whole or in part based on the
authority under the EHPA to respond to the Public Health
Emergency presented by the COVID-19 outbreak, or in whole
or in part based on authority delegated by any Executive
Orders described in Paragraph 1 of this Order, including but
not limited to any Administrative Orders, remain in full force
and effect.
3. For purposes of this Order, “Executive Branch

departments and agencies” shall mean any of the principal
departments in the Executive Branch of State government and
any agency, authority, board, bureau, commission, division,
institution, office, or other instrumentality within or created by
any such department, and any independent State authority,
commission, instrumentality, or agency over which the
Governor exercises executive authority, as determined by the
Attorney General.
4. This Order shall take effect immediately.
25. This most recent Order extending the Public Health Emergency in New
Jersey is equally as unenforceable and illegal as Orders 102 and 103. To reiterate, the
Governor may not declare a public health emergency unless it is done “with the
consultation of the commissioner [of the DOH] and the Director of the State Office of
Emergency Management . . .” N.J.S.A. 26:13-3. However, nowhere in any of the
“WHEREFORE” clauses of E.O. 103 and the most recent Order, 138, does the Governor
state that he first consulted with the commissioner and the Director of the State Office of
Emergency Management before empowering each of them and before executing Order
138.
26. Consequently, through E.O. 138, the Governor continues to illegally
authorize and empower “the executive head of any agency or instrumentality of the State
government with authority to promulgate rules to waive, suspend, or modify any existing
rule, where the enforcement of which would be detrimental to the public welfare during
this emergency, notwithstanding the provisions of the Administrative Procedure Act or

any law to the contrary for the duration of this Executive Order.” E.O. 103. This is still
improper.
27. “[A]n Executive Order cannot amend or repeal a statute.” Williamson v.
Treasurer, 357 N.J. Super. 253, 272 (App. Div. 2003).
SUBSTANTIVE ALLEGATIONS SPECIFICALLY ADDRESSING THE
BUSINESS ENTITY PLAINTIFFS.
a. COVID-19 Executive Order 107 Violates the Privileges and Immunities

Clause of the New Jersey Constitution;
b. The COVID-19 Executive Order 107 is Unconstitutional because of the
Arbitrary and Discriminatory Classification of “Essential” vs. “Non-
Essential Business” which is a Violation of the Due Process and the Equal
Protection Clauses of the New Jersey Constitution;
c. The COVID-19 Executive Order 107 is Unconstitutional because it no
longer bears any rational basis toward the protection of the health, safety,
and welfare of the citizens of this state.
28. On March 16, 2020, Executive Order 104 was created which implemented
social distancing guidelines of no less than 6 feet. This order is still in effect to date.
29. On March 21, 2020, Executive Order 107 was created which, among other
things, required the indefinite closure of all “brick-and-mortar premises of all non-
essential retail businesses” and prohibited all social gatherings. In pertinent part the
Order states:
....
WHEREAS, as of March 15, 2020, the CDC
recommends that for the next eight weeks, gatherings of 50 or
more people be canceled or postponed throughout the United
States; and
WHEREAS, as of March 16, 2020, the White House
went further than the CDC had and recommended that
Americans avoid social gatherings in groups of more than 10
people;
....
6. The brick-and-mortar premises of all non-essential
retail businesses must close to the public as long as this Order
remains in effect. Essential retail businesses, listed below, are
excluded from this directive and may remain open during their
normal business hours. Essential retail businesses must,
wherever practicable, provide pickup services outside or
adjacent to their stores for goods ordered in advance online or
by phone. Additionally, online and telephonic delivery
services are permitted to the extent the retail business is
authorized to operate an online or telephonic delivery service
under existing law. The State Director of Emergency
Management, who is the Superintendent of the State Police,
shall have the discretion to make additions, amendments,
clarifications, exceptions, and exclusions to this list:
a. Grocery stores, farmer’s markets and farms that

sell directly to customers, and other food stores,
including retailers that offer a varied assortment
of foods comparable to what exists at a grocery
store;
b. Pharmacies and alternative treatment centers
that dispense medicinal marijuana;
c. Medical supply stores;
d. Retail functions of gas stations;
e. Convenience stores;
f. Ancillary stores within healthcare facilities;
g. Hardware and home improvement stores;
h. Retail functions of banks and other financial
institutions;
i. Retail functions of laundromats and dry-
cleaning services;
j. Stores that principally sell supplies for children
under five years old;
k. Pet stores;
l. Liquor stores;
m. Car dealerships, but only to provide auto
maintenance and repair services, and auto
mechanics;
n. Retail functions of printing and office supply
shops; and
o. Retail functions of mail and delivery stores.
7. Any essential retail business whose brick-and-mortar

premises remain open to the public shall abide by social
distancing practices to the extent practicable while providing
essential services. These include all reasonable efforts to keep
customers six feet apart and frequent use of sanitizing products
on common surfaces.
8. All 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, are permitted to operate their normal business
hours, but are limited to offering only food delivery and/or
take-out services in accordance with their existing liquor
licenses. If alcoholic beverages are to be sold from a
restaurant, dining establishment or bar with a liquor license,
such sales shall be limited to original containers sold from the
principal public barroom. The on-premises consumption of
alcohol is prohibited. All retail sales of alcoholic beverages by
limited brewery licensees, restricted brewery licensees,
plenary and farm winery licensees (and associated
salesrooms), craft distillery licensees and cidery and meadery
licensees must be in original containers and must be sold
through customer pick up and/or delivered by licensees in
accordance with their existing licenses.
9. All recreational and entertainment businesses, including

but not limited to the following list, must close to the public as
long as this Order remains in effect. The State Director of
Emergency Management, who is the Superintendent of State
Police, shall have the discretion to make additions,
amendments, clarifications, exceptions, and exclusions to this
list:
a. Casino gaming floors, including retail sports
wagering lounges, and casino concert and
entertainment venues. Online and mobile sports
and casino gaming services may continue to be
offered notwithstanding the closure of the
physical facility.
b. racetracks, including stabling facilities and

retail sports wagering lounges. Mobile sports
wagering services may continue to be offered
notwithstanding the closure of the physical
facility.
c. Gyms and fitness centers and classes.
d. Entertainment centers, including but not limited

to, movie theaters, performing arts centers, other
concert venues, and nightclubs.
e. All indoor portions of retail shopping malls.

Restaurants and other stores located within
shopping malls that have their own external
entrances open to the public, separate from the
general mall entrance, may remain open pursuant
to the terms and directives of this Order for
operating hours and takeout or food delivery
services. All entrances and exits to the common
area portions of retail shopping malls must remain
closed.
f. All places of public amusement, whether

indoors or outdoors, including but not limited to,
locations with amusement parks, water parks,
aquariums, zoos, arcades, fairs, children’s play
centers, funplexes, theme parks, bowling alleys,
family and children’s attractions.
g. Facilities where personal care services are

performed that, by their very nature, result in
noncompliance with social distancing guidelines,
including but not limited to cosmetology shops;
barber shops; beauty salons; hair braiding shops;
nail salons; electrology facilities; spas, including
day spas and medical spas, at which solely
elective and cosmetic medical procedures are
performed; massage parlors, tanning salons, tattoo
parlors, and public and private social clubs,
whether or not they serve alcohol, including but
not limited to facilities owned or operated by the
American Legion, Veterans of Foreign Wars,
Knights of Columbus, and any other social clubs
associated with community service organizations.
This excludes any health facilities that provide
medically necessary or therapeutic services.
h. All municipal, county, and State public

libraries, and all libraries and computer labs at
public and private colleges and universities.
10. All businesses or non-profits in the State, whether

closed or open to the public, must accommodate their
workforce, wherever practicable, for telework or work-from-
home arrangements. For purposes of this order, “telework”
means the practice of working from home or alternative
locations closer to home through the use of technology that
equips the individual to access necessary materials.
11. To the extent a business or non-profit has employees

that cannot perform their functions via telework or work-from-
home arrangements, the business or non-profit should make
best efforts to reduce staff on site to the minimal number
necessary to ensure that essential operations can continue.
Examples of employees who need to be physically present at
their work site in order to perform their duties include, but are
not limited to, law enforcement officers, fire fighters, and
other first responders, cashiers or store clerks, construction
workers, utility workers, repair workers, warehouse workers,
lab researchers, information technology maintenance workers,
janitorial and custodial staff, and certain administrative staff.
12. All public, private, and parochial preschool program

premises, and elementary and secondary schools, including
charter and renaissance schools, shall remain closed to
students as long as this Order remains in effect.
13. All institutions of higher education shall continue to

cease such in-person instruction as long as this Order remains
in effect. The Secretary of the Office of Higher Education shall
have the authority to grant a waiver to allow in-person
instruction to students on a case-by-case basis where a
compelling rationale to allow such access exists. The Secretary
of the Office of Higher Education shall coordinate with
institutions of higher education to determine appropriate
student housing conditions for those students who reside in on-
campus housing as their primary residence.
14. The Commissioner of the Department of Education

(“DOE”), in consultation with the Commissioner of DOH,
shall be authorized to permit schools to remain open on a
limited basis for the provision of food or other essential, non-
educational services, or for educational or child care services if
needed in emergency situations after consultation with the
Commissioner of DOH. The Commissioner of DOE shall also
have the authority to close any other career or training
facilities over which he has oversight, after consultation with
the Commissioner of DOH.
30. Executive Order 107, like E.O.103, is also unenforceable because it was
created and is currently enforced through an arbitrary, unreasonable, and capricious
manner having no apparent regard for the classification of businesses as “essential” or
“non- essential”, and for its present and ongoing arbitrary enforcement.
31. Executive Order 107 was not drafted with the assistance of any federal,
social, or local guidelines, such as the New Jersey Economic Development Authority,
Local Business Improvement Districts, or the North American Industry Classification,
(“NAICS”), a code developed by the Office of Management and Budget and utilized by
the U.S Census Bureau to group similarly situated entities together for classification
purposes so as to serve as the basis for an initial list of business sectors. Use of any of
the referenced external sources would ensure that similarly situated entities would be
treated the same. Therefore, as it stands, the Order’s compiled list of those businesses
deemed “non-essential” and closed indefinitely have 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!
32. 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.
33. E.O 107 is not being applied and enforced to ensure that the restrictions on
one’s ability to earn a living or purchase items of necessity are protected. In fact, recently
Governor Murphy, during a press conference in which he was questioned by an
unemployed citizen asking for help getting through to Unemployment, told the citizen
that if he didn’t like it to leave the state.
34. The State’s implementation and enforcement of E.O. 107 is whimsical and
only seems to favor certain multimillion dollar corporations and their lobbyists. The way
the Order was written, and is now being applied, and in light of social distancing
measures, 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 business remain closed.

35. The implementation of E.O. 107 is a violation of the State’s Privileges and
Immunity Clause. (N.J. Const. art. IV, §7 ¶ 9). “The Legislature shall not pass any
private, special or local laws: . . . (8) Granting to any corporation, association or
individual any exclusive privilege, immunity or franchise whatsoever.”
36. Since the Legislature does not have the constitutional authority to grant to
any corporation, association or individual any exclusive privilege, immunity or franchise
whatsoever, and since the Governor’s authority to issue an executive order only derives
from the Constitution and Legislature, and where enabling legislation such as N.J.S.A.
26:13-1 et seq., App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and N.J.S.A.38A:2-4 does
not allow a Governor the authority to grant to any corporation, association or individual
any exclusive privilege, immunity or franchise, a Governor’s executive order which
grants to certain corporations, associations and individuals any exclusive privilege,
immunity or franchise is ultra vires. Therefore, by way of example, by declaring a car
wash a “non-essential business”, but permitting a gas station which has a car wash on
premises to earn extra revenue from washing cars, is illegal.
37. The privileges and immunity clause was violated when the Governor
whimsically defined “essential businesses” and “non-essential businesses”, thus ordering
many specific business to close their doors.
38. Target and Walmart are permitted to sell necessities like clothes, but small
mom and pop boutiques cannot. Golf Courses are now open yet gun shooting ranges
remain closed. Plaintiff, Perfect Swing Golf, LLC, 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.
Citizens stand less than six feet from the register attendant at Shop Rite, Lowes, Target,
Home Depot, etc., yet hair and nail salons, who are trained and certified in safety and
sanitation and regulated by the New Jersey State Board of Cosmetology and
Hairstyling board cannot operate with masks. In fact, the purpose of the Board is to
protect the health, safety, and welfare of the people of New Jersey; regulate the practice
of cosmetology-hairstyling; and ensure that cosmetology-hairstyling is performed in
compliance with State law, (www.njconsumeraffairs.gov/cos) yet they remain
inexplicably closed. This bears no rational relationship to the present health, safety and
welfare of the citizens of this state.
39. The citizens of this state are permitted at Shop Rite, Lowes, Target, Home
Depot and now at the Boardwalk with proper facial covering, yet Movie Theaters remain
closed and hair and nail salons remain closed. So what is the purpose of the mask?
SUBSTANTIVE ALLEGATIONS SPECIFICALLY ADRESSING THE STUDENT
PLAINTIFFS.
a. COVID-19 Executive Orders 103 and 104 Violate the Privileges and
Immunities Clause of the New Jersey Constitution;
b. COVID-19 Executive Orders 103 and 104 are Unconstitutional because
they were not implemented in accordance with the applicable enabling
legislation.
c. COVID-19 Executive Orders 103 and 104 are Unconstitutional because
they no longer bears any rational basis toward the protection of the health,
safety, and welfare of the citizens of this state.
d. COVID-19 Executive Order 104 is Unconstitutional because it
prohibits the students from peacefully assembling;
40. Plaintiffs repeat all of the allegations above as though more fully set forth
herein and below.
41. A Governor’s Executive Order may not direct a state agency (NJ Dept. of
Ed.) to take action that is inconsistent with the enabling legislation under which it
operates or its own rules and regulations. In Re Highlands Master Plan, 421 N.J. Super.
614, 627 (App. Div. 2011). In order for this to be legal, amendments would have to be
required to be adopted in accordance with the Administrative Procedures Act and would
be subject to challenge by an interested party. Id. However, as Executive Order 103 is
presently written, the Governor has “authorize[d] and empower [d] the executive head of
any agency or instrumentality of the State government with authority to promulgate rules
to waive, suspend, or modify any existing rule, where the enforcement of which would be
detrimental to the public welfare during this emergency, notwithstanding the provisions of
the Administrative Procedure Act or any law to the contrary for the duration of this
Executive Order.” (Emphasis added)
42. Additionally, the implementation of E.O. 104 is a violation of the State’s
Privileges and Immunity Clause. (N.J. Const. art. IV, §7 ¶ 9). The Legislature shall not
pass any private, special or local laws: . . . (7) Providing for the management and control
of free public schools.
43. Since the Legislature does not have the constitutional authority to provide
for the management and control of free public schools, and since the Governor’s
authority to issue an executive order only derives from the Constitution and Legislature,
where enabling legislation such as N.J.S.A. 26:13-1 et seq., App. A: 9-33 et seq.,
N.J.S.A. 38A:3-6.1, and N.J.S.A.38A:2-4 does not give a Governor the authority to
manage and control free public schools, a Governor’s executive order which manages
and controls free public schools is ultra vires.
44. This would include the Governor’s attempt to influence the New Jersey Board
of Education which recently issued the following letter:

45. In addition, it is alleged that the defendant Board of Education does not
have the legal authority to control whether any of its schools hold a commencement
ceremony after the last calendar day of the school year.
46. The present prohibition of schools from holding a socially responsible
commencement ceremony stands without any rational basis and reason. It is utterly
arbitrary.
47. Recently the United Sates Air Force Academy held a socially distant
commencement ceremony for 967 candidates.

48. Schools in New Jersey can hold similar ceremonies!
49. The first diagram represents a scaled version of a high school football
field. The circles on the drawing represent an area on the field in which a chair could be
placed at the center of the circle. The diameter of each circle is 7.5 feet, and the circles
are staggered in each row so each chair is not on top of another person. By doing this,
you create a space where each of the 1,140 chairs is always 7.5 feet from the next chair in
all directions.
50. Toms River High School East’s entire senior class comprises of 350
students! If, as the diagram demonstrates, 1,140 students can be socially distanced on the
field at 7.5 feet, then each of the 350 graduating students will be at least 23 feet apart
from one another within the playing area of the school’s football field and receive their
hard earned and well deserved diplomas.
51. The second diagram (below) is the field overlaid on an aerial photo of the
Toms River East football field. If one were to utilize every inch of a football field
(without taking into consideration the sidelines), you could have 1,140 circles or chairs
with people in them, and socially distanced!

52. Mathematically, this demonstrates several options for the schools: First, if
the school desired to graduate the entire senior class in one ceremony, it could do so with
an even larger socially distanced class if it were to utilize the entire football field and not
just the portion confined within the playing field as shown above; (2) Second, if the
schools, particularly Toms River High School East, split the graduating class of 350 into
two ceremonies, one half in the morning and the second half in the afternoon, then each
student would be socially distanced by 46 feet; Third, if the schools were to continue to
divide the graduating class into thirds, quarters or fifth’s, then the social distancing could
be as much as 115 feet, using only the inside of the football playing field.
53. Unfortunately, it appears as though the defendants have not considered any
alternatives, except a virtual ceremony.
54. If the provisions of the Constitution be not upheld when they pinch as well
as when they comfort, they may as well be abandoned. Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398, 482 (1934).

CLAIMS FOR RELIEF
COUNT I
THE COVID-19 EXECUTIVE ORDERS 103, 104, 107 AND 138, ARE VOID AND
UNENFORCEABLE.
55. Plaintiffs incorporate by reference, repeat and re-allege each and every
allegation set forth in all the preceding paragraphs as if fully set forth herein.
56. An Executive Order is only as good as its enabling authority. In this case at
bar, the enabling authority comprises of the New Jersey Constitution and applicable
legislation, namely N.J.S.A. 26:13-3.
57. The Governor did not comply with the applicable enabling legislation when
he drafted and executed the said orders.
58. The enabling legislation requires that a Governor may not declare a public
health emergency unless it is done “with the consultation of the commissioner [of the
DOH] and the Director of the State Office of Emergency Management . . .” N.J.S.A.
26:13-3.
59. In the case at bar, nowhere in any of the “WHEREFORE” clauses of E.O.
103 (or quite frankly any of the Orders) does the Governor state that he first consulted
with the commissioner and the Director of the State Office of Emergency Management
before empowering each of them and before executing Orders 103, et seq.
WHEREFORE, plaintiffs demand judgment against the defendants as follows:
A. For an emergent temporary restraining order, preliminary injunction, and
permanent injunction prohibiting defendants from enforcing Executive Orders 103, 104,
107 and 138;
B. For an emergent temporary restraining order, preliminary injunction, and
permanent injunction prohibiting defendants from allowing non-essential business to
remain closed indefinitely;
C. For an emergent temporary restraining order, preliminary injunction, and
permanent injunction prohibiting compelled social distancing while masks;
D. For an emergent temporary restraining order, preliminary injunction, and
permanent injunction prohibiting defendants from allowing New Jersey graduates from
participating in live and in-person commencement ceremonies if their respective school
desires to hold same;
E. For Declaratory Judgment pursuant to Declaratory Judgment Act, N.J.S.A.
2A:16-50, that Governor Murphy did not comply with N.J.S.A. 26:13-3 before and while
implemented Executive Orders 103, 104, 107 and 138;
F. For Declaratory Judgment pursuant to Declaratory Judgment Act, N.J.S.A.
2A:16-50, that Executive Orders 103, 104, 107 and 138, are void because N.J.S.A. 26:13-
3 was not followed; and
G. Award such other relief available under the law that may be considered
appropriate under the circumstances, including fees, costs of this action and any other
equitable relief.
COUNT II
THE COVID-19 EXECUTIVE ORDER 107 VIOLATES THE PRIVILIGES AND

IMMUNITY CLAUSE OF THE NEW JERSEY CONSTITUTION.
mom and pop boutiques cannot. Gas stations that also have car wash services on
premises are allowed to operate the car wash, but independent car wash businesses
cannot. Citizens stand less than six feet from the register attendant at Shop Rite, Lowes,
Target, Home Depot, etc., yet hair and nail salons, who are trained and certified in safety
and sanitation and regulated by the New Jersey State Board of Cosmetology and

permanent injunction prohibiting defendants from enforcing Executive Order 107;
C. For Declaratory Judgment pursuant to Declaratory Judgment Act, N.J.S.A.
2A:16-50, that Governor Murphy’s Executive Order 107 violates the Privileges and
Immunity Clause of the New Jersey Constitution;
2A:16-50, that Executive Order 107 is void because it violates the Privileges and
Immunity Clause of the New Jersey Constitution; and
F. Award such other relief available under the law that may be considered
equitable relief.
COUNT III
COVID-19 EXECUTIVE ORDER 107 IS UNCONSTITUTIONAL BECAUSE OF

THE ARBITRARY AND DISCRIMINATORY CLASSIFICATION OF
“ESSENTIAL” VS. “NON-ESSENTIAL BUSINESS” WHICH IS A VIOLATION
OF THE DUE PROCESS AND THE EQUAL PROTECTION CLAUSES OF THE
NEW JERSEY CONSTITUTION.
68. Executive Order 107, like E.O.103, is also unenforceable because it was
created and is currently enforced through an arbitrary, unreasonable, and capricious
manner having no apparent regard for the classification of businesses as “essential” or
“non- essential”, and for its present and ongoing arbitrary enforcement.
69. Executive Order 107 was not drafted with the assistance of any federal,
social, or local guidelines, such as the New Jersey Economic Development Authority,
Local Business Improvement Districts, or the North American Industry Classification,
(“NAICS”), a code developed by the Office of Management and Budget and utilized by
the U.S Census Bureau to group similarly situated entities together for classification
purposes so as to serve as the basis for an initial list of business sectors. Use of any of
the referenced external sources would ensure that similarly situated entities would be
treated the same. Therefore, as it stands, the Order’s compiled list of those businesses
deemed “non-essential” and closed indefinitely have 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!
70. 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.
71. E.O 107 is not being applied and enforced to ensure that the restrictions on
one’s ability to earn a living or purchase items of necessity are protected. In fact, recently
Governor Murphy, during a press conference in which he was questioned by an
unemployed citizen asking for help getting through to Unemployment, told the citizen
that if he didn’t like it to leave the state.

mom and pop boutiques cannot. Gas stations that also have car wash services on
premises are allowed to operate the car wash, but independent car wash businesses
cannot. Citizens stand less than six feet from the register attendant at Shop Rite, Lowes,
Target, Home Depot, etc., yet hair and nail salons, who are trained and certified in safety
and sanitation and regulated by the New Jersey State Board of Cosmetology and
2A:16-50, that Governor Murphy’s Executive Order 107 violates the Privileges and
Immunity Clause of the New Jersey Constitution;
2A:16-50, that Executive Order 107 is void because it violates the Privileges and
Immunity Clause of the New Jersey Constitution; and
equitable relief.
COUNT IV
COVID-19 EXECUTIVE ORDER 107 IS UNCONSTITUTIONAL BECAUSE IT

NO LONGER BEARS ANY RATIONAL BASIS TOWARD THE PROTECTION
OF THE HEALTH, SAFETY, AND WELFARE OF THE CITIZENS OF THIS
STATE.
allegation set forth in all the preceding paragraphs, and in particular Count III, as if fully
set forth herein.
79. On May 12, 2020, Governor Murphy posted the following to his facebook
page:
80. On May 13, 2020, Governor Murphy also posted the following to his
facebook page:
81. It has become apparent that Governor Murphy’s willingness to open the
economy and permit the citizens of New Jersey to resume more normal lives is directly
linked to the State’s fiscal woes, a financial pandemic that almost everyone has seen
coming since date one!
82. It is equally clear from these facebook posts that our Governor’s present
work restrictions no longer bear any rational relation to public health, safety and, welfare.
2A:16-50, that Governor Murphy’s Executive Order 107 bears no rational relationship to
current public health, safety and welfare; and
equitable relief.
COUNT V
COVID-19 EXECUTIVE ORDERS 103 AND 104 VIOLATE THE PRIVILEGES

AND IMMUNITIES CLAUSE OF THE NEW JERSEY CONSTITUTION
84. A Governor’s Executive Order may not direct a state agency (NJ Dept. of
Ed.) to take action that is inconsistent with the enabling legislation under which it
operates or its own rules and regulations. In Re Highlands Master Plan, 421 N.J. Super.
614, 627 (App. Div. 2011). In order for this to be legal, amendments would have to be
required to be adopted in accordance with the Administrative Procedures Act and would
be subject to challenge by an interested party. Id. However, as Executive Order 103 is
presently written, the Governor has “authorize[d] and empower [d] the executive head of
any agency or instrumentality of the State government with authority to promulgate rules
to waive, suspend, or modify any existing rule, where the enforcement of which would be
detrimental to the public welfare during this emergency, notwithstanding the provisions of
the Administrative Procedure Act or any law to the contrary for the duration of this
Executive Order.” (Emphasis added)
85. Additionally, the implementation of E.O. 104 is a violation of the State’s
Privileges and Immunity Clause. (N.J. Const. art. IV, §7 ¶ 9). The Legislature shall not
pass any private, special or local laws: . . . (7) Providing for the management and control
of free public schools.
86. Since the Legislature does not have the constitutional authority to provide
for the management and control of free public schools, and since the Governor’s
authority to issue an executive order only derives from the Constitution and Legislature,
where enabling legislation such as N.J.S.A. 26:13-1 et seq., App. A: 9-33 et seq.,
N.J.S.A. 38A:3-6.1, and N.J.S.A.38A:2-4 does not give a Governor the authority to
manage and control free public schools, a Governor’s executive order which manages
and controls free public schools is ultra vires.
87. This would include the Governor’s attempt to influence the New Jersey Board
of Education which recently issued the following letter:

88. In addition, it is alleged that the defendant Board of Education does not
have the legal authority to control whether any of its schools hold a commencement
ceremony after the last calendar day of the school year.
89. The present prohibition of schools from holding a socially responsible
commencement ceremony stands without any rational basis and reason. It is utterly
arbitrary.
90. Recently the United Sates Air Force Academy held a socially distant
commencement ceremony for 967 candidates.

91. Schools in New Jersey can hold similar ceremonies!
92. The first diagram represents a scaled version of a high school football
field. The circles on the drawing represent an area on the field in which a chair could be
placed at the center of the circle. The diameter of each circle is 7.5 feet, and the circles
are staggered in each row so each chair is not on top of another person. By doing this,
you create a space where each of the 1,140 chairs is always 7.5 feet from the next chair in
all directions.
93. Toms River High School East’s entire senior class comprises of 350
students! If, as the diagram demonstrates, 1,140 students can be socially distanced on the
field at 7.5 feet, then each of the 350 graduating students will be at least 23 feet apart
from one another within the playing area of the school’s football field and receive their
hard earned and well deserved diplomas.

94. The second diagram (below) is the field overlaid on an aerial photo of the
Toms River East football field. If one were to utilize every inch of a football field
(without taking into consideration the sidelines), you could have 1,140 circles or chairs
with people in them, and socially distanced!
95. Mathematically, this demonstrates several options for the schools: First, if
the school desired to graduate the entire senior class in one ceremony, it could do so with
an even larger socially distanced class if it were to utilize the entire football field and not
just the portion confined within the playing field as shown above; (2) Second, if the
schools, particularly Toms River High School East, split the graduating class of 350 into
two ceremonies, one half in the morning and the second half in the afternoon, then each
student would be socially distanced by 46 feet; Third, if the schools were to continue to
divide the graduating class into thirds, quarters or fifth’s, then the social distancing could
be as much as 115 feet, using only the inside of the football playing field.
96. Unfortunately, it appears as though the defendants have not considered any
alternatives, except a virtual ceremony.
permanent injunction prohibiting defendants from enforcing Executive Orders 103 and
104;
D. For Declaratory Judgment pursuant to Declaratory Judgment Act, N.J.S.A.
2A:16-50, that Executive Orders violate the Privileges and Immunity Clause of the New
Jersey Constitution; and
E. Award such other relief available under the law that may be considered
equitable relief.
COUNT VI
COVID-19 EXECUTIVE ORDERS 103 AND 104 ARE UNCONSTITUTIONAL

BECAUSE THEY WERE NOT IMPLEMENTED IN ACCORDANCE WITH THE
APPLICABLE ENABLING LEGISLATION.
allegation set forth in all the preceding paragraphs, particularly Count I, as if fully set
forth herein.
104;
2A:16-50, that Governor Murphy did not comply with N.J.S.A. 26:13-3 before and while
implemented Executive Orders 103 and 104;
2A:16-50, that Executive Orders 103 and 104 are void because N.J.S.A. 26:13-3 was not
followed; and
equitable relief.
COUNT VII
COVID-19 EXECUTIVE ORDERS 103 AND 104 ARE UNCONSTITUTIONAL

BECAUSE THEY NO LONGER BEAR ANY RATIONAL BASIS TOWARD THE
PROTECTION OF THE HEALTH, SAFETY, AND WELFARE OF THE
CITIZENS OF THIS STATE.
99. On May 12, 2020, Governor Murphy posted the following to his facebook:
page:
100. On May 13, 2020, Governor Murphy also posted the following to his
facebook page:
101. It has become apparent that Governor Murphy’s willingness to open the
economy and permit the citizens of New Jersey to resume more normal lives is directly
linked to the State’s fiscal woes, a financial pandemic that almost everyone has seen
coming since date one!

104;
2A:16-50, that Executive Orders 103 and 104 do not bear any rational basis toward the
further protection of the health, safety and welfare of the citizens of this state;
2A:16-50, that Executive Orders 103 and 104 are void because N.J.S.A. 26:13-3 was not
followed; and
equitable relief.
COUNTY VIII
COVID-19 EXECUTIVE ORDER 104 IS UNCONSTITUTIONAL BECAUSE IT
PROHIBITS STUDENTS FROM PEACEFULLY ASSEMBLING
allegation set forth in all the preceding paragraphs, particularly Count I, as if fully set
forth herein.
103. N.J. Const. art. 1, ¶ 18, states bestows upon each citizen of this state the
following rights: “ . . . to assemble together, to consult for the common good, to make
known their opinions to their representatives, and to petition for redress of grievances.”
104. The current executive orders, in particular 104, which calls for social
distancing and gathering limited to 50 people violates the right to assemble. Moreover,
the order does not permit for gatherings of more than 50 people in a responsible and
socially distant manner. It simply prohibits same.
105. Order 104 is being applied and enforced in a discriminatory and arbitrary
fashion. Hundreds of people can gather at the local garden center but not at church or
synagogue.
permanent injunction prohibiting defendants from enforcing Executive Orders 104;
permanent injunction prohibiting the citizens of New Jersey from peacefully assembling;
2A:16-50, that Executive Order 104 does not bear any rational basis toward the further
protection of the health, safety and welfare of the citizens of this state;
2A:16-50, that Executive Order 104 is being applied and enforced in an arbitrary manner
thereby violating N.J. Const. art. 1, ¶ 18 ;
2A:16-50, that Executive Order 104 is void because N.J.S.A. 26:13-3 was not followed;
and
equitable relief.
DESIGNATION OF TRIAL COUNSEL
Pursuant to R. 4:25-4, MICHAEL J. DEEM, ESQ. is hereby designated a Trial
Counsel of this matter.
CERTIFICATION PURSUANT TO R. 4:5-1
I, Michael J. Deem, Esq., hereby certify that pursuant to Rule 4:5-1(b) that the
matter in controversy is not the subject of any other action pending in any court.
I further certify that I know of no other parties who should be joined in this action
pursuant to Rule 4:28, or who are subject to joinder pursuant to Rule 4:29.0-1(b) because
of potential liability to any party on the basis of the same transactional facts.
I further certify that the foregoing statements made by me are true to the best of my
knowledge. I am aware that if any of the foregoing statements made by me are knowingly
false, I am subject to punishment.
R.C. SHEA & ASSOCIATES

Attorneys for Plaintiffs
By: Michael J. Deem
MICHAEL J. DEEM, ESQ.
Dated: May 14, 2020
CERTIFICATION
I certify that the within pleading was served in accordance with R. 4:5.1.
R. C. SHEA & ASSOCIATES

Attorneys for Plaintiffs
By: Michael J. Deem

MICHAEL J. DEEM, ESQ.
Dated: May 14, 2020

Lawsuit by Toms River Students, Businesses, Against Gov. Phil Murphy's Coronavirus Executive Orders

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Lawsuit by Toms River Students, Businesses, Against Gov. Phil Murphy's Coronavirus Executive Orders

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R.C.

SHEA & ASSOCIATES

The loss of liberty is at hand.

limitations of our Constitution.” American Communications Assn. v. Douds, 339 U.S.

382, 439 (1950).

3. In December of 2019, a novel coronavirus (now known as “COVID-19”)

countries, including the United States.

4. As COVID-19 spread and outbreaks were confirmed in other countries, the

Force on February 3, 2020.

5. Following the establishment of a Coronavirus Task Force through E.O.

102, Governor Murphy signed 37 additional Executive Orders.

Constitution, and by the Statutes of this State, as pointed-out by Governor Murphy in

7. In particular, the authority of the Governor derives form Article V of the

N.J. Const. art. V, §1, ¶ 1.

or to restrain violation of any constitutional or legislative power or duty, by any officer,

251 (App. Div. 1976).

be divided among three distinct branches of government: legislative, judicial and

executive. Therefore no person or persons belonging to or constituting one branch, such

others, except where expressly provided in the Constitution.

and ordered to close indefinitely.

business and ordered to close indefinitely.

15. Scott Convery, Justin Tucker, Allison Lanzano, Grisel Wilenta as

administrator ad prosequendum for Arianna Wilenta, Gina DiPasquale and Isabella

formal graduation ceremony.

SUBSTANTIVE ALLEGATIONS AS TO ALL PLAINTIFFS

a. The COVID-19 Executive Orders Violate the Privileges and Immunities

17. On February 3, 2020, Governor Murphy issued the first of a series of

Coronavirus Task Force.

18. On March 9, 2020, Governor Murphy declared a State of Emergency and

Public Health Emergency through EO 103 which states, in part,

WHEREAS, the Constitution and statutes of the State

NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of

3. Given the concurrent invocation of both a State

of this State, as acknowledged by Governor Murphy in E.O. 102. Therefore by the

Executive Order 103, et seq. are invalid.

Director of the State Office of Emergency Management . . .” N.J.S.A. 26:13-3. However,

Court in Wisconsin Legislature v. Secretary-Designee Andrea Palm, decided May 13,

head of any agency or instrumentality of the State government with authority to

of which would be detrimental to the public welfare during this emergency,

23. “Simply put, an Executive Order cannot amend or repeal a statute.”

contrary.” (emphasis added)

24. Notwithstanding the above, on May 6, 2020, Governor Murphy issued

pertinent part, the Order says

WHEREAS, the facts as set forth above and

WHEREAS, the Constitution and statutes of the State

NOW, THEREFORE, I, PHILIP D. MURPHY,

1. All Executive Orders adopted in whole or in

2. All actions taken by any Executive Branch

3. For purposes of this Order, “Executive Branch

4. This Order shall take effect immediately.

Emergency Management . . .” N.J.S.A. 26:13-3. However, nowhere in any of the

26. Consequently, through E.O. 138, the Governor continues to illegally

this emergency, notwithstanding the provisions of the Administrative Procedure Act or

27. “[A]n Executive Order cannot amend or repeal a statute.” Williamson v.

Treasurer, 357 N.J. Super. 253, 272 (App. Div. 2003).

SUBSTANTIVE ALLEGATIONS SPECIFICALLY ADDRESSING THE

BUSINESS ENTITY PLAINTIFFS.

a. COVID-19 Executive Order 107 Violates the Privileges and Immunities

a. Grocery stores, farmer’s markets and farms that

7. Any essential retail business whose brick-and-mortar

8. All restaurants, cafeterias, dining establishments, and

9. All recreational and entertainment businesses, including

b. racetracks, including stabling facilities and