Some owners have quietly worked around or partly ignored Gov. Phil Murphy’s order more than two months ago that they should close as nonessential businesses.
Not the owners of Atilis Gyms in South Jersey.
Two who own a location in Bellmawr in Camden County made it the much-expected example of open defiance to emergency rule by the governor. The gym reopened May 18 as announced with restrictions such as limiting capacity to 20%, temperature checks for patrons and requiring face masks. Two days later it was forcibly closed — locks changed, orders on the door — by state and county officials.
Today, June 1, another owner —Chris Lambert, of Middle Township — said he will reopen his four Atilis Gym locations in Egg Harbor Township, Sea Isle City, Wildwood and Ocean City. He said he’s helping organize a reopening plan for 150 gyms and 300 salons to show Murphy it can and must be done.
The name Atilis already is assured of turning up in post-pandemic crossword puzzles and trivia contests. Thanks to a federal lawsuit, there’s a chance it could be part of a needed clarification or further defining of the requirements and limits of government emergency orders.
Bellmawr Atilis owners Ian Smith and Frank Trumbetti have gone further than Lambert, filing a constitutional challenge in federal court to the order and actions by New Jersey officials. They claim Murphy’s executive order — renewed for a third month so far — violates due process and equal protections under the U.S. Constitution’s 14th Amendment and the unlawful takings prohibition under the 5th Amendment.
The lawsuit says the state’s determination that liquor stores and big-box retailers are essential and can remain open while gyms aren’t and can’t was not rational or reasonable, but arbitrary.
The U.S. Supreme Court declined to take up the first such lawsuit to reach it, a challenge to Pennsylvania’s shutdown order. But that may change as the already 240 such lawsuits move through state and federal courts and produce conflicting judicial opinions. For example, the Ninth Circuit U.S. Appellate Court recently rejected a church’s challenge to its closure by California but in a 2-1 split decision. In Ohio, a county common pleas judge granted an injunction to 35 gyms against the state’s closure order, noting that “some of the plaintiff’s businesses will not survive the lockdown of two or more months.”
Court deference to executive branches of government during an emergency is understandable. But what constitutes an emergency? When should emergency rule end and be succeeded by the regular constitutional rule of law? Legislation could help provide answers, but they must not violate the fundamental protections of the U.S. Constitution.
Government executives, legislators and the public will have to thrash out temporary answers to such questions for this pandemic. High courts eventually should provide legal guidance to help sustain orderly transitions and confidence in government during and after future times of crisis.