Law says NJ must compensate businesses it closed in pandemic, group argues
In 1942, six months after the bombing of Pearl Harbor, the New Jersey Legislature passed what is known as the Civil Defense and Disaster Control Act, a law that was designed to “provide for the health, safety and welfare of the people of the State of New Jersey.”
That law is now the basis for a lawsuit being filed this week against Gov. Phil Murphy.
The suit, being filed in Sussex County Superior Court by attorney Bob Ferguson of the Florham Park firm Stern, Kilcullen and Rufalo, and Catherine Brown, of Denville, is on behalf of Darlene Pally, the Franklin Borough owner of CKO Kickboxing Studio, which was shut down by Murphy's executive order in March.
The lawsuit says that when Murphy issued Executive Orders 103, 104 and 107, invoking the Civilian Defense and Disaster Control Act, he essentially took control of businesses that were ordered closed. But in doing so, he violated the same law for not implementing the compensation program mandated by the act.
Ferguson said the law specifically states “that if he takes, uses or employs private property even temporarily, he must compensate the owners of that property.”
The specific section of the Disaster Control Act Ferguson is referencing states:
“The Governor is authorized to utilize and employ all the available resources of the State Government and of each and every political subdivision of this State, whether of men, properties or instrumentalities, and to commandeer and utilize any personal services and any privately owned property necessary to avoid or protect against any emergency subject to the future payment of the reasonable value of such services and privately owned property as hereinafter in this act provided.”
Ferguson pointed out the Act also stipulates that “the governor is supposed to establish compensation boards in each county so that they may receive petitions from property owners who had their property taken or controlled by the government.”
Also in the law:
“There is hereby established an emergency compensation board in and for each county of the State, to be composed of three persons appointed by the Governor who shall serve at the will and pleasure of the Governor and without compensation. …The emergency compensation board shall award reasonable compensation to the party entitled thereto for any property employed, taken or used under the provisions of this subsection.”
Ferguson said Murphy is obligated by the law "to put in place a process so that these property owners, whose property has been shut down for public benefit, can receive the compensation that they are due.”
Ferguson noted the suit does not challenge the governor’s ability to shut down businesses as part of his emergency response to the COVID19 pandemic. Murphy's executive orders during the public health emergency have withstood numerous challenges in court.
This latest lawsuit also does not call for specific compensation for a business owner who was ordered to close down.
“All we’re trying to do is put in place the process so that our client and other future business owners can obtain that future, reasonable compensation that they are owed,” he said.
He also said, generally speaking, both the state and federal Constitutions require “that any person whose property has been taken for a public benefit is entitled to just compensation, that’s a sort of table setting for this lawsuit.”
According to Ferguson, the lawsuit was filed through the stewardship of the newly incorporated group Rescue New Jersey, formed by several Morris and Sussex County residents.
We were not able to request comment or a reaction from the governor’s office before the suit was filed, however the general practice of the governor’s office is to not comment on pending litigation.