SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3616-19

 A-3873-19

BAYSHORE ENTERPRISES,

INC., d/b/a CAR WASH AND

BEYOND, JERSEY SHORE

HAIR, INC. d/b/a RAZBERRI

HAIR & NAIL DESIGN, PERFECT

SWING GOLF, LLC, SCOTT

CONVERY, JUSTIN TUCKER, 

ALLISON LANZANO, GINA

DIPASQUALE, ISABELLA

GHANBARY, ELIZABETH 

CIOCHER, MADISON KELLY,

ELAN HAIR STUDIO, BELLA

SALON OF MANCHESTER, INC.,

DIMENSIONAL DESIGNS, INC., 

G'S GYM, LLC, SALON DIMARIA,

INC., PANICO SALON, 

MOMENTS TO REMEMBER, INC., 

t/a CHARLES EDWARDS SALON 

and BANT INC., t/a MARTINS 

CASUALS, 

Plaintiffs-Appellants,

v.

PHILIP D. MURPHY, in his official

capacity as the Governor of the State

of New Jersey, PATRICK J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-3616-19

CALLAHAN, in his official capacity 

as the State Director of Emergency 

Management and as Superintendent 

of the New Jersey State 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 Assistant 

Commissioner of the New

Jersey Department of Education,

Defendants-Respondents.

________________________________

NEW JERSEY REPUBLICAN 

STATE COMMITTEE, JOHN E. 

POSTAS, d/b/a POSTAS BARBER 

SHOP, 54TH STREET LIQUOR, 

LLC, d/b/a EASTLYN GOLF 

COURSE & THE GREENVIEW INN, 

MIZZITRAINING, LLC, and 

BUCKET BRIGADE BREWERY, 

LLC,

Plaintiffs-Appellants,

v.

PHILIP D. MURPHY, in his official 

capacity as the Governor of the State 

of New Jersey, GURBIR S. GREWAL, 

in his official capacity as Attorney 

General of the State of New Jersey,

and PATRICK J. CALLAHAN, in his official capacity as Superintendent of 
3

A-3616-19

the New Jersey Division of State Police 

and as State Director of Emergency 

Management,

Defendants-Respondents.

________________________________

Submitted June 1, 2021 – Decided July 23, 2021

Before Judges Rothstadt, Mayer, and Susswein.

On appeal from Executive Orders No. 103, et seq., 107 

and 151, pursuant to transfers from the Superior Court 

of New Jersey, Chancery Division, Ocean County, 

Docket No. C-000070-20 and Law Division, Cape May 

County, Docket No. L-0168-20.

R.C. Shea & Associates, attorneys for appellants in A3616-19 (Michael J. Deem, of counsel and on the brief).

Lavery, Selvaggi, Abromitis & Cohen, and Testa, 

Heck, Testa & White, PA, attorneys for appellants in 

A-3873-19 (Michael B. Lavery and Michael L. Testa, 

Jr., of counsel and on the briefs; William H. Pandos, on 

the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondents (Jeremy M. Feigenbaum, State Solicitor, 

and Kevin R. Jespersen, Assistant Attorney General, of 

counsel and on the briefs; Deborah A. Hay and Kai W. 

Marshall-Otto, Deputy Attorneys General, on the 

briefs).

PER CURIAM

These consolidated appeals challenge the validity of Executive Orders 

(EOs) issued by New Jersey's governor in response to the coronavirus (Covid-
4

A-3616-19

19) pandemic that infected and spread across almost the entire world since at 

least early 2020. In A-3616-19, appellants (Bayshore appellants) challenge EOs 

103–186 and argue the following points:

POINT I 

GOVERNOR MURPHY'S [EOS] 103 THROUGH 186, 

AS THEY PERTAIN TO A PUBLIC HEALTH 

EMERGENCY, ARE UNENFORCEABLE BECAUSE 

THE GOVERNOR FAILED TO COMPLY WITH THE 

PROCEDURES SET FORTH IN THE EMERGENCY 

HEALTH POWERS ACT, [(EHPA)] N.J.S.A. 26:13-1 

[to -31]. 

POINT II 

THE UNPRECEDENTED STAY AT HOME 

COMMAND FOUND IN [EO] 107 FAILED TO 

COMPLY WITH THE ESTABLISHED DUE 

PROCESS PROCEDURES SET FORTH IN N.J.S.A. 

26:13-15 FOR QUARANTINING AND ISOLATING 

INDIVIDUALS. 

POINT III 

GOVERNOR MURPHY'S [EOS] 103 THROUGH 186, 

AS THEY PERTAIN TO A PUBLIC HEALTH 

EMERGENCY, ARE NO LONGER ENFORCEABLE 

BECAUSE THE GOVERNOR CANNOT 

DEMONSTRATE THE PRESENCE OF A PUBLIC 

HEALTH EMERGENCY AS DEFINED UNDER THE

[EHPA], N.J.S.A. 26:13-2. 

POINT IV 
5

A-3616-19

WITHOUT AN EMERGENCY GOVERNOR 

MURPHY DOES NOT HAVE THE AUTHORITY TO 

ISSUE ON GOING [SIC] COVID-19 [EOS] UNDER 

THE CIVILIAN DEFENSE ACT AND DISASTER 

CONTROL ACT, [(DISASTER CONTROL ACT)], 

N.J.S.A. APP. [A:9-30 TO -63], THEREFORE THE 

GOVERNOR'S COVID-19 [EOS] SHOULD NO 

LONGER BE EXTENDED. 

Appellants in A-3873-19 (RSC appellants) challenge EO 107 and argue the 

following two points: 

POINT I: 

GOVERNOR MURPHY'S EXECUTIVE ACTION TO 

SHUTTER BUSINESSES AND RESTRICT 

COMMERCE DURING THE COVID-19 PANDEMIC 

VIOLATES THE EQUAL PROTECTION CLAUSE 

OF THE NEW JERSEY CONSTITUTION.

POINT II: 

GOVERNOR MURPHY'S EXECUTIVE ACTION TO 

SHUTTER BUSINESSES AND RESTRICT 

COMMERCE DURING THE COVID-19 PANDEMIC 

VIOLATES THE SUBSTANTIVE DUE PROCESS 

CLAUSE OF THE NEW JERSEY CONSTITUTION.

Since the filing of these appeals, much has changed about the pandemic 

because of the introduction of preventative health measures and vaccines that 

thwart the spread of the deadly virus that has so far taken the lives of in excess 

of 600,000 people in our country, including 23,687 in New Jersey. Most 

recently, and after these appeals were submitted for our consideration, New 
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A-3616-19

Jersey enacted L. 2021, c. 103, recognizing the diminution of Covid-19's impact 

on its citizens and effectively terminating most of the Covid-19 related EOs as 

of July 4, 2021, including orders numbered 104, 107, and 151. Also, the 

Governor issued a new EO, numbered 244, that terminated the public health 

emergency he originally declared in EO 103. Exec. Order No. 244 (June 4, 

2021), ___ N.J.R. ___ (____).

According to defendants, these actions have rendered the issues before us 

moot because any "decision [by us] would thus have no practical effect." The 

Bayshore appellants disagree and contend that because the recently enacted 

legislation leaves the Governor with "the ability to re-impose the restrictive and 

unconstitutional Orders at any time" the issues fall into the category of cases 

that "are of substantial importance, likely to reoccur, and capable of evading 

review." The RSC appellants further argue that under the "voluntary cessation 

doctrine" the appeals are not moot.

"Mootness is a threshold justiciability determination rooted in the notion 

that judicial power is to be exercised only when a party is immediately 

threatened with harm." Stop & Shop Supermarket Co., LLC v. Cnty. of Bergen, 

450 N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas 

Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial 
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A-3616-19

economy and restraint, courts will not decide cases in which the issue is 

hypothetical, [or] a judgment cannot grant effective relief." Ibid. (alterations in 

original) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. 

Div. 1993)). Furthermore, "[a]n issue is 'moot' when the decision sought in a 

matter, when rendered, can have no practical effect on the existing controversy." 

Comando v. Nugiel, 436 N.J. Super. 203, 219 (App. Div. 2014) (alteration in 

original) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 

(App. Div. 2006)).

We have carefully considered the parties' contentions in light of these

governing legal principles and conclude that the issues before us are moot and 

for that reason, both appeals are dismissed. 

I.

In order to give context to our determination that the issues raised by 

appellants are moot, we begin by reviewing the challenged EOs and the relief 

sought by the parties. We choose not to recite in detail either the nature of the

pandemic, its effect on our health care system and the people employed in the 

health care fields, its tragic impact on our population and economy, the world's 

response, or our federal government's actions or omissions during the past year 

and a half. We are confident that these facts are not only well known to the 
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A-3616-19

parties before us, but also to the general public.1 We turn to the orders issued 

in response to the pandemic. 

1

 As of June 21, 2021, New Jersey reported a history of 891,483 cases and 

23,687 Covid-19 related deaths. As of the same date, in excess of 4.8 million 

New Jersey residents have been fully vaccinated, and 5.2 million partially 

vaccinated from its population of approximately 8.8 million people. 

During the almost year and half since Covid-19's appearance, our courts

have had occasion to address its impact on New Jersey citizens. See, e.g., N.J. 

Republican State Comm. v. Murphy, 243 N.J. 574 (2020) (addressing 

government borrowing to respond to Covid-19 emergency); In re Request to 

Modify Prison Sentences, 242 N.J. 357 (2020) (addressing Covid-19 in context 

of State prisons and juvenile facilities); Singh v. Murphy, No. A-0323-20 (App. 

Div. Oct. 21, 2020) (addressing Covid-19 in context of elections), certif. denied, 

244 N.J. 329 (2020), cert. denied, 141 S. Ct. 1373 (2021). Indeed, our courts 

have recognized the significant public health threat posed by Covid-19. In re 

Request to Release Certain Pretrial Detainees, 245 N.J. 218, 226, 230, 236 

(2021); N.J. Republican State Comm., 243 N.J. at 580-81; State v. Smith, 465 

N.J. Super. 515, 522-23 (App. Div. 2020). In August 2020, the Court stated:

"Laypeople, scientists, and legal scholars alike would agree that COVID-19 is a 

true disaster with widespread consequences. The pandemic has caused a health 

emergency, a broad-based economic one that has devastated many individuals 

and families, and a fiscal crisis for the State." N.J. Republican State Comm., 

243 N.J. at 580-81. In February 2021, the Court stated, "COVID-19 has created 

an ongoing health crisis of enormous proportions for all of society," and 

recognized that the pandemic was of "unexpected duration," with "no clear end 

date." In re Request to Release Certain Pretrial Detainees, 245 N.J. at 226, 230,

236.

Courts across the nation similarly have recognized that Covid-19 presents 

a public health crisis, as they have been presented with a myriad of issues 

stemming from the virus and the actions taken to limit its spread. See, e.g., 

Cassell v. Snyders, 990 F.3d 539, 543 (7th Cir. 2021); S. Bay United Pentecostal 

Church v. Newsom, 985 F.3d 1128, 1131-36 (9th Cir. 2021); Big Tyme Invs., 
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A-3616-19

On February 3, 2020, Governor Murphy issued EO 102, setting forth thenknown facts about Covid-19, and establishing a coronavirus task force. Exec. 

Order No. 102 (Feb. 3, 2020), 52 N.J.R. 366(b) (Mar. 2, 2020). The task force 

was staffed by employees of the New Jersey Department of Health (DOH),

chaired by the Commissioner of the DOH, and consisted of agency heads or their 

designees from the Department of Human Services, the Department of Law and 

Public Safety, the New Jersey State Police, the Department of Education (DOE), 

and the Office of Homeland Security and Preparedness. It reported directly to 

the Office of the Governor and was "charged with coordinating all State efforts 

to appropriately prepare for and respond to the public health hazard posed by 

the virus," including consulting and coordinating with State departments and 

agencies, the federal government, hospitals and other health care facilities, and 

local health departments. Ibid.

As discussed in greater detail infra, the Governor also issued numerous 

additional EOs, responding to the ever-evolving public health threat created by 

LLC v. Edwards, 985 F.3d 456, 460-61 (5th Cir. 2021); Beshear v. Acree, 615 

S.W.3d 780, 830 (Ky. 2020); Desrosiers v. Governor, 158 N.E.3d 827, 831-32 

(Mass. 2020); Grisham v. Romero, 483 P.3d 545, 548-50 (N.M. 2021); Friends 

of Danny DeVito v. Wolf, 227 A.3d 872, 888-91 (Pa.), cert. denied, 141 S. Ct. 

239 (2020); Fisher v. Hargett, 604 S.W.3d 381, 386-87 (Tenn. 2020); In re 

Recall of Snaza, 480 P.3d 404, 406 (Wash. 2021).
10 A-3616-19

Covid-19.2 As legal authority for the EOs, the Governor cited to the New Jersey 

Constitution, the EHPA, and the Disaster Control Act, as well as statutes 

permitting the Governor to activate the National Guard, N.J.S.A. 38A:2-4 and 

N.J.S.A. 38A:3-6.1. The Governor also held regular public briefings in which 

he and members of the Coronavirus Task Force spoke to the public about the 

State's responsive measures. And, the State operated a website with up-to-date 

Covid-19 information.

3

Spring 2020 Executive Orders

The Governor first declared a public health emergency and state of 

emergency on March 9, 2020. Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R.

549(a) (Apr. 6, 2020). In EO 103, the Governor reviewed known facts about 

Covid-19 and acknowledged the public health emergencies announced by the 

World Health Organization (WHO) and the Department of Health and Human 

Services (DHHS). Ibid. The Governor then stated that "the spread of COVID19 within New Jersey constitutes an imminent public health hazard that 

threatens and presently endangers the health, safety, and welfare of the residents 

2

 See https://nj.gov/infobank/eo/056murphy/.

3 See Governor's YouTube channel 

https://www.youtube.com/channel/UCH8YwF0eRl9E5lpGj8OaiLg; see also

https://covid19.nj.gov/.
11 A-3616-19

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." 

Ibid.

The Governor declared a public health emergency and state of emergency, 

and invoked the authorities granted to him under the State Constitution and 

various State statutes, including the EHPA and Disaster Control Act. Ibid. 

Among other things, the Governor authorized and empowered the State Director 

of Emergency Management (OEM Director) in conjunction with the 

Commissioner of the DOH, to take any emergency measures as he may 

determine to be necessary "in order to fully and adequately protect the health, 

safety and welfare of the citizens of the State of New Jersey from any actual or 

potential threat or danger that may exist from the possible exposure to COVID19," and to coordinate the relief effort from the emergency, including 

coordinating the work of state, regional, and local political bodies and agencies 

to implement the EO. Ibid.4

4

 On a monthly basis thereafter, the Governor declared that the public health 

emergency and state of emergency continued to exist, based on a number of cited 

facts as well as his "consultation[s] with the Commissioner of DOH," and he 

ordered and directed that all Covid-19 EOs remain in full force and effect. See
12 A-3616-19

EO 104: Business Closures and Restrictions

The Governor issued EO 104 on March 16, 2020, just a week after he first 

declared a public health emergency. Exec. Order No. 104 (Mar. 16, 2020), 52 

N.J.R. 550(a) (Apr. 6, 2020). In EO 104, the Governor cited known facts about 

Covid-19, as well as current guidance and recommendations from the CDC and 

Dr. Anthony Fauci of the National Institute of Allergy and Infectious Diseases, 

and ordered and directed, among other things, that (1) gatherings be limited to 

fifty persons or fewer, with certain exceptions; (2) schools and institutions of 

higher education cease in-person instruction, with exceptions; (3) a number of 

specified businesses be closed, including casinos, racetracks, gyms and fitness 

centers, and entertainment centers such as movie theaters, performing art 

centers, concert venues, and nightclubs, with the OEM Director permitted to 

Exec. Order No. 119 (Apr. 7, 2020), 52 N.J.R. 956(a) (May 4, 2020); Exec. 

Order No. 138 (May 6, 2020), 52 N.J.R. 1107(b) (June 1, 2020); Exec. Order 

No. 151 (June 4, 2020), 52 N.J.R. 1300(a) (July 6, 2020); Exec. Order No. 162

(July 2, 2020), 52 N.J.R. 1475(a) (Aug. 3, 2020); Exec. Order No. 171 (Aug. 1, 

2020), 52 N.J.R. 1634(a) (Sept. 8, 2020); Exec. Order No. 180 (Aug. 27, 2020), 

52 N.J.R. 1711(a) (Sept. 21, 2020); Exec. Order No. 186 (Sept. 25, 2020), 52 

N.J.R. 1880(a) (Oct. 19, 2020); Exec. Order No. 191 (Oct. 24, 2020), 52 N.J.R. 

2034(a) (Nov. 16, 2020); Exec. Order No. 200 (Nov. 22, 2020), 52 N.J.R. 

2157(a) (Dec. 21, 2020); Exec. Order No. 210 (Dec. 21, 2020), 53 N.J.R. 98(b) 

(Jan. 19, 2021); Exec. Order No. 215 (Jan. 19, 2021), 53 N.J.R. 192(a) (Feb. 16, 

2021); Exec. Order No. 222 (Feb. 17, 2021), 53 N.J.R. 398(a) (Mar. 15, 2021); 

Exec. Order No. 231 (Mar. 17, 2021), 53 N.J.R. 579(a) (Apr. 19, 2021). All 

EOs can be found at https://nj.gov/infobank/eo/056murphy/. 
13 A-3616-19

amend the list of businesses ordered to be closed; (4) other non-essential retail, 

recreational, and entertainment businesses must cease operations between 8:00 

p.m. and 5:00 a.m., and in other hours must limit their occupancy to no more 

than fifty persons and adhere to social distancing guidelines; (5) "essential 

businesses" were excluded from the limitations applicable to non-essential 

businesses, with examples of essential businesses identified, and the OEM 

Director was permitted to amend the list of essential businesses; and (6) 

restaurants and bars were limited to food delivery and take-out services. Ibid.

EO 107: Stay-At-Home Order and Additional Business Closures and 

Restrictions

The Governor issued EO 107 on March 21, 2020, twelve days after he 

issued the first declaration of a public health emergency. Exec. Order No. 107

(Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020). In EO 107, the Governor 

noted the rapid spread of Covid-19 in the United States, and New Jersey in 

particular, through person-to-person contact when individuals are within six feet 

or less of one another. Ibid. The Governor also noted recommendations made 

by the federal government that individuals practice social distancing in order to 

prevent the spread of Covid-19 and that, for the next eight weeks, individuals 

avoid gatherings of more than ten people. Ibid.
14 A-3616-19

The Governor determined that it was necessary to strengthen the State's 

efforts to slow the spread of the virus and preserve the health care system's 

capacity to treat those who required emergency or intensive care. Thus, the 

Governor superseded EO 104.

5

Ibid. Although EO 107 generally required 

5

 EO 107 specifically stated:

2. All New Jersey residents shall remain home or at 

their place of residence unless they are 1) obtaining 

goods or services from essential retail businesses . . . ; 

2) obtaining takeout food or beverages from 

restaurants, other dining establishments, or food 

courts . . . ; 3) seeking medical attention, essential 

social services, or assistance from law enforcement or 

emergency services; 4) visiting family or other 

individuals with whom the resident has a close personal 

relationship, such as those for whom the individual is a 

caretaker or romantic partner; 5) reporting to, or 

performing, their job; 6) walking, running, operating a 

wheelchair, or engaging in outdoor activities with 

immediate family members, caretakers, household 

members, or romantic partners while following best 

social distancing practices with other individuals, 

including staying six feet apart; 7) leaving the home for 

an educational, religious, or political reason; 8) leaving 

because of a reasonable fear for his or her health or 

safety; or 9) leaving at the direction of law enforcement 

or other government agency.

3. When in public, individuals must practice social 

distancing and stay six feet apart whenever practicable, 

excluding immediate family members, caretakers, 

household members, or romantic partners. 
15 A-3616-19

individuals to stay at home, it included significant exceptions. Among other 

things, it permitted individuals to leave their homes in order to go to work, visit 

with family members and individuals with whom they had close personal 

relationships, engage in outdoor activities, shop at essential retail businesses, 

pick up take-out food and beverages from dining establishments, and for 

educational, religious, or political reasons. Ibid. The stay-at-home provision of 

EO 107 applied to the entire State population. It was not targeted at certain 

individuals.

Also in EO 107, the Governor ordered that "[t]he brick-and-mortar 

premises of all non-essential retail businesses must close to the public as long 

as this Order remains in effect." Ibid. However, essential retail businesses were 

excluded from this directive, albeit with social distancing practices maintained, 

and online and telephonic delivery services being permitted. Ibid. EO 107 set 

. . . . 

5. Gatherings of individuals, such as parties, 

celebrations, or other social events, are cancelled, 

unless otherwise authorized by any part of this Order. 

The [OEM Director] shall have the discretion to make 

clarifications and issue orders related to this provision.

[Ibid.]
16 A-3616-19

forth a list of essential businesses, which could be amended by the OEM 

Director. Ibid. See also Exec. Order No. 122 (Apr. 8, 2020), 52 N.J.R. 959(a) 

(May 4, 2020) (among other things, imposing additional limitations and 

mitigation strategies on essential businesses, including a fifty percent capacity 

limitation and mandated mask-wearing).

EO 107 also maintained the limits on restaurants and bars to delivery and 

take-out and maintained the closure of recreational and entertainment 

businesses, with the list of such businesses expanded to include: casinos, 

racetracks, gyms and fitness centers and classes, entertainment centers, the 

indoor portions of retail shopping malls, places of public amusement, places 

where personal care services were performed, and municipal, county, and State 

public libraries, and libraries and computer labs at public and private colleges 

and universities. Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 

6, 2020).

Finally, EO 107 directed all businesses and non-profits to accommodate 

their workforce, wherever practicable, with telework or work-from-home 

arrangements and maintained the restrictions on schools and institutions of 

higher education. Ibid.
17 A-3616-19

The Litigation

On May 21, 2020, the RSC appellants filed their complaint in the Law 

Division, alleging the EOs violated the State Constitution and seeking 

declaratory and injunctive relief that would enjoin the Governor from enforcing 

the EOs or ever "issuing any future orders or rules similar" to the ones 

challenged in the complaint. The next day, the Bayshore appellants filed a first 

amended verified complaint in the Law Division6alleging the Governor's Covid19 EOs were promulgated in violation of State statutory and constitutional law 

and seeking both injunctive relief barring enforcement of the EOs and a 

declaration that the EOs were void and unenforceable.7 

Relaxing of Restrictions

Immediately preceding the filing of the two actions, the Governor 

responded to the first wave of Covid-19 infections beginning to wane by

relaxing the previously imposed restrictions. To assist him in that effort, on 

April 28, 2020, the Governor created a "Restart and Recovery Commission," 

charged with "provid[ing] guidance to the Governor for reopening the New 

6

 We have not been provided with a copy of the Bayshore appellants' original 

complaint.

7

 On May 26, 2020, and June 11, 2020, the Law Division entered orders 

transferring the matters to the court under Rule 1:13-4. 
18 A-3616-19

Jersey economy in a way that is consistent with the State's public health efforts 

to slow the spread of COVID-19." Exec. Order No. 131 (Apr. 28, 2020), 52 

N.J.R. 1099(a) (June 1, 2020). And, on May 8, 2020, the Governor created a 

second advisory body, dubbed the "Restart and Recovery Advisory Council," to 

"provide guidance to the Governor on the reopening and recovery of New 

Jersey's economy, taking into account the unique facets of New Jersey's 

economy and society." Exec. Order No. 140 (May 8, 2020), 52 N.J.R. 1231(b) 

(June 15, 2020).

Beginning in the spring of 2020, the Governor issued EOs that permitted 

the reopening of many previously closed facilities and businesses, subject to 

limitations that were intended to mitigate the spread of the virus, including 

capacity limitations and mandates for social distancing, mask-wearing, and 

sanitization.8 As stated in the EOs, the re-openings reflected: increases in the 

8

 See, e.g., Exec. Order No. 133 (Apr. 29, 2020), 52 N.J.R. 1101(a) (June 1, 

2020) (reopening State parks and forests, and permitting reopening of county 

and municipal parks and golf courses); Exec. Order No. 142 (May 13, 2020), 52 

N.J.R. 1233(a) (June 15, 2020) (permitting reopening of construction projects, 

permitting individuals in vehicles to gather, and permitting non-essential retail 

businesses to reopen to public for curbside pickup); Exec. Order No. 143 (May 

14, 2020), 52 N.J.R. 1235(a) (June 15, 2020) (permitting beaches, boardwalks, 

lakes, and lakeshores to remain open); Exec. Order No. 145 (May 15, 2020), 52 

N.J.R. 1240(a) (June 15, 2020) (permitting elective surgeries to resume); Exec. 

Order No. 146 (May 16, 2020), 52 N.J.R. 1241(a) (June 15, 2020) (permitting 
19 A-3616-19

charter fishing and watercraft rental businesses to reopen); Exec. Order No. 147

(May 18, 2020), 52 N.J.R. 1243(a) (June 15, 2020) (permitting reopening of 

certain outdoor recreational businesses and activities); Exec. Order No. 148

(May 22, 2020), 52 N.J.R. 1245(a) (June 15, 2020) (setting rules for outdoor 

gatherings and permitting reopening of recreational campgrounds); Exec. Order 

No. 149 (May 29, 2020), 52 N.J.R. 1297(a) (July 6, 2020) (permitting 

resumption of child care services, youth day camps, and outdoor organized 

sports); Exec. Order No. 150 (June 3, 2020), 52 N.J.R. 1298(a) (July 6, 2020) 

(among other things, permitting outdoor dining and permitting non-essential 

retail businesses to open subject to same limitations applied to essential 

businesses); Exec. Order No. 152 (June 9, 2020), 52 N.J.R. 1301(a) (July 6, 

2020) (addressing numbers of persons permitted to gather indoors and 

outdoors); Exec. Order No. 153 (June 9, 2020), 52 N.J.R. 1303(a) (July 6, 2020) 

(permitting reopening of outdoor pools, and outdoor spaces of recreational and 

entertainment businesses, and rescinding stay-at-home order); Exec. Order No. 

154 (June 13, 2020), 52 N.J.R. 1355(a) (July 20, 2020) (permitting personal care 

service facilities to reopen); Exec. Order No. 155 (June 18, 2020), 52 N.J.R. 

1356(a) (July 20, 2020) (permitting limited in-person instruction at institutions 

of higher education and trade and training schools); Exec. Order No. 156 (June 

22, 2020), 52 N.J.R. 1358(a) (July 20, 2020) (increasing indoor and outdoor 

gathering capacity limits); Exec. Order No. 157 (June 26, 2020), 52 N.J.R. 

1455(a) (Aug. 3, 2020) (among other things, establishing rules for retail 

establishments, indoor dining, indoor recreational facilities, and individualized 

instruction at gyms and fitness centers); Exec. Order No. 161 (July 2, 2020), 52 

N.J.R. 1474(b) (Aug. 3, 2020) (increasing outdoor gathering limits); Exec. Order 

No. 163 (July 8, 2020), 52 N.J.R. 1476(a) (Aug. 3, 2020) (requiring individuals 

to wear masks in outdoor public spaces when they cannot social distance, and 

permitting some additional indoor and outdoor sports practices); Exec. Order 

No. 165 (July 13, 2020), 52 N.J.R. 1584(a) (Aug. 17, 2020) (lifting fifty percent 

capacity limits on NJ Transit and private carriers); Exec. Order No. 168 (July 

20, 2020), 52 N.J.R. 1590(a) (Aug. 17, 2020) (permitting resumption of contact 

practices and competitions for certain organized sports in outdoor settings); 

Exec. Order No. 175 (Aug. 13, 2020), 52 N.J.R. 1699(a) (Sept. 21, 2020) 

(permitting reopening of schools for in-person instruction); Exec. Order No. 181

(Aug. 27, 2020), 52 N.J.R. 1712(a) (Sept. 21, 2020) (permitting health clubs and 

amusement and water parks to open their indoor premises); Exec. Order No. 183
20 A-3616-19

understanding of Covid-19, including the situations and settings where it is most 

easily transmitted; recommendations made by public health experts, including 

the CDC; and decreases in the rate of positive Covid-19 tests and 

hospitalizations in the State. 

Most pertinent to the present appeals, on June 3, 2020, the Governor 

permitted non-essential retail businesses to open to the public, subject to the 

same limitations applied to essential businesses, and permitted outdoor dining 

at restaurants and bars, subject to limitations. Exec. Order No. 150 (June 3, 

2020), 52 N.J.R. 1298(a) (July 6, 2020). Six days later, the Governor formally 

rescinded the stay-at-home order issued on March 21, 2020. Exec. Order No. 

153 (June 9, 2020), 52 N.J.R. 1303(a) (July 6, 2020). Earlier, on May 16, 2020, 

the Governor had clarified in EO 146 that: "If [a] New Jersey resident leaves 

their home or place of residence to participate in any activity otherwise 

authorized by any [EO] issued after March 21, 2020, it shall not be a violation 

(Sept. 1, 2020), 52 N.J.R. 1714(b) (Sept. 21, 2020) (among other things, 

permitting restaurants, bars, and entertainment centers to reopen indoor service); 

Exec. Order No. 187 (Oct. 12, 2020), 52 N.J.R. 2029(a) (Nov. 16, 2020) 

(allowing resumption of contact practices and competitions for certain organized 

sports in indoor settings); Exec. Order No. 192 (Oct. 28, 2020), 52 N.J.R. 

2079(a) (Dec. 7, 2020) (establishing safety protocols at worksites).
21 A-3616-19

of Paragraph 2 of [EO] No. 107 (2020)." Exec. Order No. 146 (May 16, 2020), 

52 N.J.R. 1241(a) (June 15, 2020).

The following week, the Governor permitted personal care service 

facilities to open, subject to limitations. Exec. Order No. 154 (June 13, 2020), 

52 N.J.R. 1355(a) (July 20, 2020). And, on August 27, 2020, he permitted health 

clubs to reopen their indoor premises, subject to capacity limitations. Exec. 

Order No. 181 (Aug. 27, 2020), 52 N.J.R. 1712(a) (Sept. 21, 2020).

The re-openings did not all go as smoothly as anticipated. For example, 

in EO 157, issued on June 26, 2020, the Governor permitted indoor dining, 

subject to limitations. Exec. Order No. EO 157 (June 26, 2020), 52 N.J.R.

1455(a) (Aug. 3, 2020). However, just three days later, the Governor issued EO 

158, rescinding EO 157 to the extent it would have permitted indoor dining, due 

to spikes of Covid-19 cases around the nation that were attributed to activities 

in indoor food and beverage establishments. Exec. Order No. 158 (June 29, 

2020), 52 N.J.R. 1458(a) (Aug. 3, 2020). Thereafter, the Governor did not 

reopen indoor dining, subject to capacity and other limitations, until September 

1, 2020. Exec. Order No. 183 (Sept. 1, 2020), 52 N.J.R. 1714(b) (Sept. 21, 

2020).
22 A-3616-19

In addition, on August 3, 2020, due to a cluster of Covid-19 cases traced 

to a house party, the Governor limited indoor gatherings to twenty-five percent 

capacity, but not more than twenty-five persons, with higher in-person limits 

applicable to religious services or celebrations, political activities, wedding 

ceremonies, and funerals or memorial services, for which contact tracing would 

be easier. Exec. Order No. 173 (Aug. 3, 2020), 52 N.J.R. 1636(a) (Sept. 8, 

2020). 

There was a surge of Covid cases in the fall and winter of 2020/2021, 

which resulted in the Governor imposing additional restrictions on a temporary 

basis. For example, on November 10, 2020, the Governor imposed a limitation 

on the hours when food and beverages could be served indoors, and suspended 

indoor interstate youth sports competitions, noting outbreaks of Covid-19 cases 

in such settings. Exec. Order No. 194 (Nov. 10, 2020), 52 N.J.R. 2083(a) (Dec. 

7, 2020). Two days later, the Governor permitted counties and municipalities 

to impose additional restrictions on the hours of operation of non-essential retail 

businesses, food and beverage establishments, personal care service businesses, 

and recreation and entertainment businesses. Exec. Order No. 195 (Nov. 12, 

2020), 52 N.J.R. 2085(a) (Dec. 7, 2020).
23 A-3616-19

In addition, on November 16, 2020, the Governor lowered indoor and 

outdoor gathering limits. Exec. Order No. 196 (Nov. 16, 2020), 52 N.J.R.

2086(a) (Dec. 7, 2020). And on November 30, 2020, the Governor temporarily 

paused indoor practices and competitions for organized, group, and/or 

competitive sports, between December 5, 2020, and January 2, 2021. Exec. 

Order No. 204 (Nov. 30, 2020), 52 N.J.R. 2160(a) (Dec. 21, 2020).

Since February 2021, however, the Governor began easing restrictions

again, citing expanded access to testing and personal protective equipment, the 

federal government's emergency use authorization for several Covid-19 

vaccines, and the State's vaccination efforts, as well as decreases or 

stabilizations in the statewide rate of virus transmission and the number of new 

hospital admissions, current hospitalized patients, ventilators in use, and 

patients in intensive care. 

For example, on February 3, 2021, the Governor raised the indoor capacity 

limits from twenty-five to thirty-five percent for certain businesses, including 

food and beverage establishments, entertainment centers, personal care service 

facilities, health clubs, and casinos, and eliminated the curfew previously 

applied to indoor dining. Exec. Order No. 219 (Feb. 3, 2021), 53 N.J.R. 288(a) 

(Mar. 1, 2021). Nine days later, on February 12, 2021, the Governor permitted 
24 A-3616-19

limited spectators at youth sporting events. Exec. Order No. 220 (Feb. 12, 

2021), 53 N.J.R. 395(a) (Mar. 15, 2021).

Ten days later, on February 22, 2021, the Governor increased capacity 

limits for religious services or celebrations, and for large sports and 

entertainment venues, and permitted some spectators for collegiate sporting

events. Exec. Order No. 225 (Feb. 22, 2021), 53 N.J.R. 571(a) (Apr. 19, 2021). 

Nine days later, on March 3, 2021, the Governor clarified the capacity limits for 

wedding receptions: thirty-five percent capacity for indoor receptions, but no 

more than 150 people, excluding staff; and no more than 150 at an outdoor 

reception. Exec. Order No. 228 (Mar. 3, 2021), 53 N.J.R. 573(a) (Apr. 19, 

2021). 

On March 11, 2021, the Governor, among other things, increased indoor 

gathering limits and increased indoor capacity limits to fifty percent for religious 

services or celebrations, restaurants and bars, personal care services, health 

clubs, recreational and entertainment businesses, and casinos. Exec. Order No. 

230 (Mar. 11, 2021), 53 N.J.R. 576(a) (Apr. 19, 2021). On March 17, 2021, the 

Governor issued an order permitting outdoor interstate sports competitions to 

resume within the State. Exec. Order No. 232 (Mar. 17, 2021), 53 N.J.R. 581(a) 

(Apr. 19, 2021). And, on March 29, 2021, the Governor increased outdoor 
25 A-3616-19

gathering limits and increased capacity for large venues. Exec. Order No. 234

(Mar. 29, 2021), 53 N.J.R. 669(a) (May 3, 2021). Nevertheless, the State 

continued under a declared public health emergency and state of emergency. 

Exec. Order No. 231 (Mar. 17, 2021), 53 N.J.R. 579(a) (Apr. 19, 2021); Exec. 

Order No. 235 (Apr. 15, 2021), 53 N.J.R. 761(a) (May 17, 2021); Exec. Order 

No. 240 (May 14, 2021), 53 N.J.R. 1041(a) (June 21, 2021).

Although the state of emergency continued, in the spring of 2021, the 

Governor issued new orders that ramped up the elimination of many remaining 

restrictions.9 At the end of May he issued EO 242, which eliminated indoor 

mask mandates but encouraged unvaccinated individuals to continue to wear 

masks in public spaces and permitted employers and other entities to establish 

9

 See Exec. Order No. 237 (Apr. 28, 2021), 53 N.J.R. 967(a) (June 7, 2021) 

(permitting summer youth overnight and day camps); Exec. Order No. 238 (May 

3, 2021), 53 N.J.R. 968(a) (June 7, 2021) (increasing outdoor gathering limits 

but maintaining a fifty percent capacity limit for certain indoor gatherings and 

business operations); Exec. Order No. 239 (May 12, 2021), 53 N.J.R. 970(a) 

(June 7, 2021) (among other things, eliminating capacity limitations for 

businesses, and outdoor gathering limits, but maintaining a six-foot social 

distancing requirement and addressing indoor gathering limits, which were 

superseded in EO 242); Exec. Order No. 241 (May 17, 2021), 53 N.J.R. 1042(a)

(June 21, 2021) (eliminating mask requirements for outdoor public spaces, 

regardless of vaccination status, but permitting employers and other entities to 

establish their own rules and excepting certain service providers, e.g., childcare 

centers, schools, youth summer camps, and health care and correctional 

facilities).
26 A-3616-19

their own policies. Exec. Order No. 242 (May 24, 2021), 53 N.J.R. 1044(a) 

(June 21, 2021). That order also eliminated capacity limitations for businesses; 

eliminated social distancing mandates in public spaces, businesses, and outdoor 

gatherings; and eliminated any numerical limits pertaining to indoor gatherings. 

Ibid. However, certain premises were excluded from the definition of public

spaces (e.g., schools, childcare centers, and youth summer camps), and the EO 

did not supersede masking and social distancing requirements in, e.g., health 

care facilities, corrections facilities, and public transportation. Ibid. The EO 

also permitted municipalities to impose additional restrictions. Ibid.

In EO 243, effective June 4, 2021, the Governor rescinded portions of EO 

107 that directed employers to accommodate telework and work from home 

arrangements. The Governor also clarified mask-wearing rules in workplaces 

that are not open to the public. Exec. Order No. 243 (May 26, 2021), 53 N.J.R. 

1047(a) (June 21, 2021).

On June 1, the Legislature passed A. 5820 (2021) that affirmed the 

Governor's authority to take action as he had under the Disaster Control Act,

and directed that "[a]ll [EOs] issued by the Governor prior to the effective date 

of this act that relied on the existence of the public health emergency declared 

by the Governor in [EO] No. 103 of 2020, as extended, shall expire 30 days 
27 A-3616-19

following the effective date of this act, [July 4, 2021]" except for thirteen 

specific EOs that would remain in effect through January 2022.10 (Citation 

omitted). Three days later, the Governor signed the bill into law, see L. 2021,

c. 103, and issued EO 244 that declared an end to public health emergency under

the EHPA but continued the state of emergency under the Disaster Control Act. 

Exec. Order No. 244 (June 4, 2021), ___ N.J.R. ___ (____).

II.

With this history in mind, we turn to the issues before us. Central to all 

of the contentions on appeal are the provisions of the EHPA and the Disaster 

Control Act, which were both relied upon by the Governor in issuing his EOs. 

The EHPA authorizes the Governor to declare a public health emergency and to 

renew that declaration every thirty days. N.J.S.A. 26:13-3. It defines a "[p]ublic 

health emergency" as:

an occurrence or imminent threat of an occurrence that:

a. is caused or is reasonably believed to be caused 

by any of the following: (1) bioterrorism or an 

accidental release of one or more biological agents; (2) 

the appearance of a novel or previously controlled or 

eradicated biological agent; (3) a natural disaster; (4) a 

chemical attack or accidental release of toxic 

chemicals; or (5) a nuclear attack or nuclear accident; 

and

10

 EO Nos. 106, 111, 112, 123, 127, 150, 159, 170, 178, 207, 229, 233, 237. 
28 A-3616-19

b. poses a high probability of any of the following 

harms: (1) a large number of deaths, illness, or injury 

in the affected population; (2) a large number of serious 

or long-term impairments in the affected population; or 

(3) exposure to a biological agent or chemical that 

poses a significant risk of substantial future harm to a 

large number of people in the affected population.

[N.J.S.A. 26:13-2.]

The Disaster Control Act authorizes the Governor to declare an emergency 

and take action to protect the health, safety, and welfare of the people of the 

State in the context of an emergency. N.J.S.A. App. A:9-33, 9-34, 9-45, 9-51; 

Worthington v. Fauver, 88 N.J. 183, 193-94 (1982). It defines an "emergency" 

as including a "disaster" or "war emergency," with "disaster" defined as 

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. 

[N.J.S.A. App. A:9-33.1(1), (4).]

In a case decided under the Disaster Control Act, the Supreme Court has 

stated that "[t]he determination of whether an 'emergency' exists requires a factspecific analysis," and "[t]here is no temporal rule of thumb for determining 

when an 'emergency' ceases to exist." Cnty. of Gloucester v. State, 132 N.J. 
29 A-3616-19

141, 150 (1993) (invalidating EO that had been renewed for almost twelve 

years). "Rather, courts should consider the passage of time and other factors 

such as the extent to which the problem is within the government's control, and 

the extent to which remedial efforts have been undertaken." Id. at 150-51 

(citations omitted).

The court should not merely substitute its judgment for that of the 

Governor. The Legislature has delegated the authority to the Executive Branch, 

which possesses the necessary expertise. Therefore, the Judiciary's review of 

the Governor's decision is extremely deferential. 

"[T]he Governor's power under the Disaster Control Act must be liberally 

construed to accomplish its crucial legislative purpose." Worthington, 88 N.J. 

at 199. We review orders issued under the Disaster Control Act for whether 

they "bear[] a rational relationship to the [legislative] goal of protecting the 

public," and are "closely tailored to the scope of the current emergency 

situation," or are arbitrary and capricious. Id. at 197-98, 202-05. 

The same standard applies when reviewing EOs issued under the EHPA, 

since they are also issued by the Governor pursuant to authority granted by the 

Legislature. Id. at 208. "An [EO] is invalid if it usurps legislative authority by 

acting contrary to the express or implied will of the Legislature." Commc'ns 
30 A-3616-19

Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 259 (App. Div. 

2010). However, "when the Governor is acting consistently with express or 

implied authority from the Legislature, his or her action should be given 'the 

widest latitude of judicial interpretation, and the burden of persuasion would 

rest heavily upon any who might attack it.'" Id. at 259-60 (quoting Bullet Hole, 

Inc. v. Dunbar, 335 N.J. Super. 562, 575 (App. Div. 2000)). "Conversely, 

'[e]mergency' executive power can be an unconstitutional usurpation of 

legislative authority either when the executive acts contrary to the expressed or 

implied will of the Legislature or when the Legislature has failed to act." Perth 

Amboy Bd. of Educ. v. Christie, 413 N.J. Super. 590, 601 (App. Div. 2010)

(alteration in original) (quoting Worthington, 88 N.J. at 207).

In determining whether the Governor's executive order 

violates the separation of powers doctrine, we must 

consider whether the order represents a usurpation of 

legislative power by the executive branch. . . . When 

discerning the Legislature's intent, courts consider not 

only the particular statute in question, but also the 

entire legislative scheme of which it is a part. Sources

of legislative intent are the language of a statute, the 

policy behind a statute, concepts of reasonableness and 

legislative history.

[Id. at 602 (alterations, internal quotation marks and 

citations omitted).]
31 A-3616-19

III.

In their first argument before us, the Bayshore appellants contend that the 

Covid-19 EOs are invalid and unenforceable because the Governor did not 

comply with the procedures set forth in the EHPA for declaring a public health 

emergency by failing to consult with the Commissioner and the OEM Director, 

as set forth in N.J.S.A. 26:13-3(a). Although this contention, if true, might have 

undermined the Governor's actions, it is no longer a viable issue because the 

public health emergency is now over and the Legislature, through its enactment 

of its recent legislation, ratified the Governor's earlier EOs. For that reason, a

decision from us will not impact any actions taken by the Governor to date or 

going forward, absent his attempt to declare another public health emergency 

and issue new EOs. The issue is therefore moot as it is not "likely to reoccur 

[and be] capable of evading review." Zirger v. Gen. Accident Ins., 144 N.J. 327, 

330 (1996). Accord Nini v. Mercer Cnty. Cmty. Coll., 202 N.J. 98, 117 (2010); 

Wisniewski v. Murphy, 454 N.J. Super. 508, 518 (App. Div. 2018). 

We reach a similar conclusion as to Point II of the Bayshore appellants' 

brief in which they contend the stay-at-home directive found in EO 107 did not 

comply with the EHPA's procedures for quarantining and isolating individuals, 

N.J.S.A. 26:13-5. As already noted, in June 2020 the Governor formally 
32 A-3616-19

rescinded this provision of EO 107. For that reason, a decision from us as to the 

order's legality or enforceability of the provision can have no practical effect. 

Redd v. Bowman, 223 N.J. 87, 104 (2015); Wisniewski, 454 N.J. Super. at 518; 

Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div. 

2011). Because it is moot, we will not address the issue. Nini, 202 N.J. at 117. 

See, e.g., Spell v. Edwards, 962 F.3d 175, 177, 178-79 (5th Cir. 2020) (rejecting 

challenge to expired stay-at-home order as moot); World Gym, Inc. v. Baker, 

474 F.Supp.3d 426, 430-31 (D. Mass. 2020) (rejecting as moot challenge to 

Covid-19 related restrictions since restrictions had been lifted).

In Point III, the Bayshore appellants argue that the Governor's Covid-19 

EOs are no longer enforceable because the Governor cannot demonstrate the 

presence of a public health emergency as defined by the EHPA. Similarly, in 

their Point IV, they also argue that without an emergency the Governor does not 

have the authority to issue ongoing Covid-19 EOs under the Disaster Control 

Act. Here again, in light of the Legislature's actions and the rescinding of the 

declaration of a public health emergency, we have no cause to render a decision 

in response to these contentions in support of a claim for injunctive relief.

Next, we consider the two points raised by the RSC appellants. In their 

Point I, the RSC appellants contend the Governor's executive action to shutter 
33 A-3616-19

businesses and restrict commerce during the Covid-19 pandemic violates their 

right to equal protection under the New Jersey Constitution. In particular, they 

contend the distinction between essential and non-essential businesses violates 

their equal protection right, as did the differential treatment of retail 

establishments, restaurants, and entertainment businesses versus gyms, movie 

theaters, and amusement parks. They argue the categories are arbitrary and do 

not rationally relate to the goal of protecting the health, safety, and welfare of 

New Jersey residents.

Although the challenged distinction between essential and non-essential 

businesses was established on March 21, 2020, in EO 107, it was abandoned on 

June 3, 2020. Exec. Order No. 150 (June 3, 2020), 52 N.J.R. 1298(a) (July 6, 

2020). Therefore, the RSC appellants' equal protection and substantive due 

process arguments are moot to the extent they relate to the distinction between 

essential and non-essential businesses. Redd, 223 N.J. at 104; Wisniewski, 454 

N.J. Super. at 518; Deutsche Bank, 422 N.J. Super. at 221-22; City of Camden 

v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999).

In their Point II, the RSC appellants contend the Covid-19 orders violate 

their right to substantive due process under the New Jersey Constitution. More 

specifically, they contend "the rights to business and employment opportunity 
34 A-3616-19

are liberty interests protected by our Constitution," and the essential versus nonessential "classifications set forth in [EO] 107 bear no relation whatsoever to the 

goal of protecting public safety, because the Order classifies businesses without 

regard to their ability to safely service the public."

Here too the challenged restrictions are no longer in effect. None of the 

RSC appellants are subject to any restrictions. We have no cause to review the 

rescinded EOs.

We are not persuaded otherwise by the RSC appellants' reliance on the so 

called "voluntary cessation doctrine," and we find inapposite their citation to 

Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Assoc., 78 N.J. 25, 42 

(1978). In that case, the Court addressed "whether an unfair practice proceeding 

premised upon an alleged refusal to negotiate in good faith in violation of 

N.J.S.A. 34:13A-5.4(a)(5) is mooted by the subsequent consummation of a 

collective agreement between the charging party and the party whose alleged 

unlawful conduct was the basis of the unfair practice charge." Id. at 37. In 

resolving the issue, the Court relied upon the subject statute "specifically 

empower[ing]" the Public Employment Relations Commission (PERC) to 

determine not only whether a party charged with an unfair practice "is engaging 

in any such unfair practice," but also whether the party "has engaged" in the 
35 A-3616-19

unfair practice. Id. at 39. In concluding the dispute was not moot based on the 

statute's language, the Court did not establish a general rule that PERC must 

adjudicate unfair labor practices where the offending had ceased. Rather,

mootness was left to PERC's determination on the basis of the facts of each 

particular case.

In the present case, the enactment of L. 2021, c. 103 did not preserve 

claims based on the Governor's Covid-19 EOs. To the contrary, the Legislature 

gave those orders its imprimatur and, in doing so, vitiated appellants'

contentions as argued in these appeals.

Also distinguished from the present facts are those in the other case cited 

by the RSC appellants, Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 

63 (2020). There, the facts did not include any action by the New York 

Legislature related to the New York governor's EOs that imposed "very severe 

restrictions" on religious gatherings, which the United States Supreme Court 

viewed as "especially harsh treatment" directed at "houses of worship." Id. at 

65-66. The cessation of the restrictions was the result of an amended EO that 

kept the door open for unilateral action by the New York governor to restore the 

limitations, without any Legislative action. In the present case, we are at a point 

where the Legislature and Governor have determined that such restrictions, 
36 A-3616-19

whether by statute or EO, are no longer necessary. There is no ongoing public 

health emergency leaving the litigants exposed to disparate treatment as the 

Supreme Court found in Cuomo. The Cuomo Court's holding in support of its 

granting a stay of the subject EO has no bearing on the case before us.

IV.

In sum, because the appellants in these appeals sought injunctive relief to 

essentially undo the Governor's earlier actions based on his reliance on a public 

health emergency under the EPHA without authorization from the Legislature, 

and in light of the enactment of L. 2021, c. 103 that granted the Governor express 

and implied authority to issue the challenged EOs that remain in effect and those 

that may be issued in the future, as well as the Governor's rescinding of the 

public health emergency, all of the contentions on appeal are moot, and the 

circumstances therefore warrant the dismissal of the appeal. See In re Plan for 

the Abolition of the Council on Affordable Hous., 214 N.J. 444, 451 n.1 (2013)

(acknowledging our dismissal of an appeal where the then-governor issued an 

EO rescinding an earlier one that was the subject of the parties' dispute). 

Appeal dismissed.