The COVID-19 pandemic has presented us with questions and issues we’ve never considered before, or at least didn’t give much serious thought. With the invocation of emergency powers by Governor Philip D. Murphy on March 9, 2020, businesses and individuals alike may ask themselves why they need to cooperate and comply with them.

Executive Order No. 103 declares a Public Health Emergency and State of Emergency until further order to protect the health, safety and welfare of the people of New Jersey. 

Gov. Murphy’s state of emergency is premised on his finding that "if COVID-19 spreads in New Jersey at a rate comparable to the rate of spread in other affected areas … the situation may become too large in scope to be handled in its entirety by the normal county and municipal operating services in some parts of this State, and this situation may spread to other parts of the State."
In addition, he declared a public health emergency because "the spread of COVID-19 within New Jersey constitutes an imminent 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."

The Governor’s Emergency Powers

The governor’s emergency powers flow from Article V of the State Constitution vesting the executive power in him. The scope and method of exercising those powers are controlled in this case by the Disaster Control Act, N.J.S.A. App.A:9-33, et seq. ("DCA"), and the Emergency Health Powers Act, N.J.S.A. 26:13-1 et seq., enacted in 2005 in the wake of 9/11. Post 9/11, New Jersey’s leaders recognized the State’s public health and domestic security laws needed to be updated to address mass biological incidents. (The other principal source of gubernatorial emergency power, also enacted post-9/11, is the Domestic Security Preparedness Act, N.J.S.A. App.A:9-64, et seq., authorizing "the development, implementation and management of comprehensive responses to any terrorist attack or any other technological disaster and the effective administration, management and coordination of remediation and recovery actions and responses following any such attack or disaster.")

For purposes of the DCA, an "emergency" includes a "disaster." A "disaster" includes "any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services." The governor’s Executive Order makes the requisite finding to declare an emergency under the DCA.

As might be expected, the DCA requires public officials and subordinate political subdivisions (counties, towns, authorities) to cooperate fully with the governor in all matters affecting any emergency. It also authorizes the governor to "make, amend and rescind orders, rules and regulations." The governor can supersede any contrary local rules or ordinances: "[I]t 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." N.J.S.A. App.A:9-40. He has done so here.

Citizens will be more surprised about the governor’s extraordinary powers over private individuals and businesses. The DCA grants the governor power to use and "commandeer" both public and private resources to respond to a declared emergency, including:

• 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
• 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.

N.J.S.A. App. A:9-34.

Whenever the control of any disaster is beyond the capabilities of local authorities, the governor is authorized:

temporarily to employ, take or use the personal services, or real or personal property, of any citizen or resident of this State, or of any firm, partnership or unincorporated association doing business or domiciled in this State, or of any corporation incorporated in or doing business in this State, or the real property of a nonresident located in this State, for the purpose of securing the defense of the State or of protecting or promoting the public health, safety or welfare; provided, that such personal services or property shall not be employed or used beyond the borders of this State unless otherwise authorized by law.

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

Executive Order 103 reserves the governor’s right to commandeer private services and property, but he has not yet expressly invoked this power. Compensation for personal services required of any natural person "shall be paid at the prevailing established rate for services of a like or similar nature." The DCA also establishes county emergency compensation boards that "shall award reasonable compensation to the party entitled thereto for any property employed, taken or used under the provisions of this subsection and for any injury caused by such employment, taking or using." Id.

A party seeking compensation files a petition with the board in the county in which the property was used within a year after the end of the emergency. The board is to grant a hearing and render a decision fixing the award. This award "shall be paid within one year after the decision is rendered from any funds appropriated by the State for such purpose." Appeals are taken in the Law Division according to the procedure covering condemnation proceedings, with a right to trial by jury. Id.

While a party has the right to "just compensation," no compensation shall be granted to the extent that the action "does not amount to a taking of property but to a reasonable regulation of property pursuant to a proper exercise of the police power." N.J.S.A. App. A:9-51.7.

The governor is also authorized to require any citizen or resident of this state or any firm, partnership, or corporation incorporated or doing business in this state, "to furnish to him any information reasonably necessary to enable him to carry out the purposes of this act." N.J.S.A. App. A:9-36. Executive Order 103 expressly invokes this duty.

The DCA broadly empowers the governor to make other "orders, rules and regulations as may be necessary adequately to meet the various problems presented by any emergency" on numerous subjects. Most relevant to the private sector, he may issue orders concerning:

• The conduct of the civilian population during any emergency.
• The designation of vehicles and persons permitted to move during any emergency.
• The method of evacuating residents and the course of conduct of the civilian population during any necessary evacuation.
• The organization, conduct, duties and powers of volunteer agencies exercising or performing any duties in connection with emergency management.
• The meeting of dangers incident to any emergency.
• Any matter that may be necessary to protect the health, safety and welfare of the people.
• Other matters as are necessary in the "fair, impartial, stringent and comprehensive administration" of this act.

N.J.S.A. App. A:9-45

All orders, rules and regulations promulgated by the governor "shall be binding upon each and every person within this State." Similarly, his orders, rules and regulations are binding upon all political subdivisions, public agencies, public officials and public employees. N.J.S.A. App. A:9-45 The governor’s orders, rules and regulations are promulgated by proclamation of the governor, which is deemed sufficient notice to the public.

While the governor’s powers extend to waiving any state regulations and county and local ordinances, he cannot waive substantive state statutes other than motor vehicle laws. N.J.S.A. App. A:9-47. The governor has invoked this power.

Additional Statutory Powers

The governor has authorized state agencies to eliminate 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. He further authorized the evacuation of all persons, except for those emergency and governmental personnel, from any area where their continued presence would present a danger to their health, safety, or welfare. He has reserved, but as of this writing has not invoked, his powers under the Emergency Health Powers Act to ensure the public health of New Jersey’s residents. This includes powers to order quarantines and vaccinations, which were significantly enhanced after 9/11.

In addition to invoking the DCA, the Executive Order invokes an emergency for purposes of the Consumer Fraud Act, N.J.S.A. 56:8-107 (prohibiting excessive price increases during a declared state of emergency); and N.J.S.A. 52:34-10(b) (public exigency exception to State public bidding requirements).

Though most citizens will comply with these orders willingly, the governor’s order makes clear that compliance is not optional: "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 State Director of Emergency Management and the Commissioner of DOH in all matters concerning this state of emergency."

Paul Josephson is a partner in Duane Morris LLP and formerly served as Chief Counsel to the Governor and Director of the Division of Law in the wake of 9/11.

Reprinted with permission from New Jersey Law Journal, © ALM Media Properties LLC. All rights reserved.