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Attorneys for Governor Phil Murphy Challenge Sussex County Business Owner’s Lawsuit Filed Against Go

Updated: Oct 16, 2020


FOR IMMEDIATE RELEASE:

October 15, 2020


CONTACT:

Jennifer Jean Miller


(Morris Plains, NJ) Attorneys representing Gov. Phil Murphy have asked a Morris County Law Division Judge on Thursday to deny a Motion for Reconsideration to reinstate a court complaint filed against the Governor.


Assistant Attorney General Kevin R. Jesperson and Deputy Attorney General Amy E. Stevens representing Murphy with New Jersey’s Attorney General’s Office, filed a pleading to request that Assignment Judge Stuart A. Minkowitz of the Superior Court, Law Division of New Jersey’s Morris/Sussex Vicinage, deny a Motion for Reconsideration filed on Oct. 2 by attorneys for the plaintiff, JWC Fitness, LLC., a kickboxing studio located in Sussex County’s Franklin Borough.


Attorneys for the business owner Robert W. Ferguson, Esq., of the law firm of Stern, Kilcullen and Rufolo, LLC of Florham Park and Catherine M. Brown, Esq., of Denville, filed the Motion for Reconsideration after Minkowitz ordered on Sept. 30 – without prior notice or hearing - for the case’s dismissal from the Law Division, justifying it could only be refiled as a new complaint within the Appellate Division of the Superior Court.


Ferguson and Brown filed the Motion for Reconsideration to reinstate the case, arguing that the Judge should have heard from the parties before acting and, in any event, should have followed Court Rule 1: 13-4, that when a case ought to be in the Appellate Division initially, it should be transferred for reason, not dismissed.


“The court and the parties are currently debating whether the plaintiff’s case should be heard initially in the Law Division, where most cases start, or in the Appellate Division,” said Ferguson. “The case was filed in the Law Division. The Law Division Judge thought it should be heard in the Appellate Division instead. He decided this on his own and without any prior notice to or input from the parties; and dismissed the complaint. A reconsideration motion is a procedure allowed by the Court Rules.”


Ferguson and Brown filed the lawsuit on Sept. 23 for business owner Darlene Pallay, who owns JWC Fitness, which does business as CKO Kickboxing Franklin, challenging Murphy’s Executive Orders, that have forced the shutdown of New Jersey businesses as a result of the COVID-19 pandemic since March. Pallay’s Sept. 23 filing asked for a declaratory judgment against Murphy, that he failed to comply with the compensation requirements of the Disaster Control Act when he ordered non-essential businesses to close; and that he, as required by the Act, must establish Emergency Compensation Boards in each of New Jersey’s 21 counties during the prolonged COVID-19 state of emergency.


Per the Act, individuals or businesses are entitled to petition their respective county Compensation Board for reasonable compensation, in exchange for the Governor taking, using or controlling their property, even temporarily, during the state of emergency. In a state of emergency, Ferguson said the statute gives the Governor one power with respect to private property, and that he can only do so subject to compensation.


Pallay, who owns and operates the Franklin franchise, said since the forced shutdown on her business on March 16, she was first unable to hold any classes; and then when she could hold them beginning in June, could only do so outdoors with special provisions. When indoor classes were finally allowed at 25 percent capacity on Sept. 1, it has remained difficult for Pallay to keep her doors open and to make her monthly commercial rent payments.


She is a business owner who has received awards for her volunteerism within the community, including one from Congressman Josh Gottheimer, D-5th Dist., as one of his “Fifth District Coronavirus Hometown Heroes,” for offering no-cost online fitness classes to the community and schools after her business was shut down. Prior to the shutdown, Pallay had over 200 active members, who could take an unlimited number of classes each month at her studio, an offer she is no longer able to extend, because of the shutdown orders.


The lawsuit against the Governor was facilitated by Rescue New Jersey, a non-partisan, educational and advocacy group, concerned with good government; and taking selective action to assist those most harmed by gross government overreach. For more information about Rescue New Jersey, go to: www.rescuenewjersey.org.


Attorneys for Governor Phil Murphy Chall
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