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In what may set a record for speed, the New Jersey COVID-19 Emergency Bond Act (A-4175), passed both houses of the Legislature on July 16, and was signed into law by the governor on the same day. At 4:09 p.m. that afternoon, New Jersey Republican State Committee v. Murphy was filed in the Law Division of Superior Court. (It is unclear whether the original complaint was filed before or after the governor signed. It states that the governor's signature was expected "imminently," which was changed to "ostensibly" in an amended complaint lodged the next day after the Supreme Court assumed jurisdiction) The next day (July 17), a sua sponte order from the Supreme Court was entered pursuant to R. 2:12-1, which declared that the matter was now deemed pending in the Supreme Court, ordered expedited briefing, and scheduled oral argument for Aug. 5.

We opined on the constitutional issues raised by this bill just recently. Editorial, Stopgap Budgeting Raises Constitutional Questions, 226 N.J.L.J. 1626 (Jul. 5, 2020). We stand by our earlier judgment that these bonds should be found to pass constitutional muster. Nevertheless, the gravity of this case, which may be as important for the future of this state as any the court is likely to hear in many years, merits further comment.

First, we address two procedural issues. In our prior editorial, we raised the possibility of a one-time constitutional resolution by which the voters could approve the use of emergency bonds for ongoing state operations. We did so at least in part to provide a last-ditch procedural backstop against the danger of such legal uncertainty as would make the bonds unmarketable, perhaps not anticipating the speed with which this litigation could be brought before the Supreme Court. Upon reflection, it is likely that even a November resolution may have been too late. At any rate the deadline for proposing constitutional amendments in November has now passed, so the decision will rest squarely with the Supreme Court, and the uncertainty dispelled one way or another.

The second procedural issue stems from the unprecedented path by which this case went directly from the governor's desk to the Supreme Court's door. We are unaware of any other similar case in which the court has reviewed the constitutionality of a law at the very moment of its enactment, without any intervening lower court or administrative agency action. Article VI, § 3, p. 2 of the New Jersey Constitution provides that: "The Superior Court shall have original general jurisdiction throughout the state in all causes," and the court itself noted the constitutional problems with a law vesting it with original jurisdiction in Brady v. N.J. Redistricting Comm'n, 131 N.J. 594 (1992). The Brady court eventually avoided this problem by treating the Redistricting Commission as an administrative agency, judicial review of which could be credibly characterized, like an action in lieu of prerogative writs, as the exercise of appellate jurisdiction. It is unclear whether the same device would work here.

We are mindful of the compelling need for swift adjudication of this dispute, and that it appears to involve purely issues of law that do not require a factual record to resolve. (We assume the complaint's demand for a jury trial was boilerplate, and that plaintiff was not seriously suggesting the existence of triable issues of fact.) We therefore will not dwell on this subject further, except to respectfully suggest, since the court is using a heretofore unknown and extraordinary procedure to review eo instante the constitutionality of a statute, that it define the contours of this procedure with clarity so that its use does not become commonly sought due to mere political expediency rather than existential need.

On the merits, the complaint's sole count alleges that A-4175 is in direct "violation of the Debt Limitation Clause of the Constitution of the State of New Jersey and the Supreme Court's holding in Lance v. McGreevey." But as we stated in our earlier editorial, we do not think that there can be any serious dispute about the applicability of the emergency exemption of Debt Limitation Clause. The contention cannot be made in good faith that a pandemic that has caused the deaths (as of this writing) of over 15,700 New Jerseyans does not constitute an "emergency caused by disaster," which thereby excuses the normal requirement of voter approval of state debt.

Lance v. McGreevey was not an interpretation of the Debt Limitation Clause (N.J. Const., art. VIII, §3(e)), but rather the balanced budget provision of the Appropriations Clause (N.J. Const., art. VIII, §2). As we acknowledged in our first editorial, and as the Office of Legislative Services concluded in its May 7, 2020, letter (appended to the complaint), there is language in Lance that could be read superficially to suggest a broad rule that proceeds from bonds are simply not "revenue," and thus could never be used to balance the budget. Such a rule would result in an absurdity, however, since proceeds from bonds justified by the emergency exception to the Debt Limitation Clause would not be usable for their very intended purpose of meeting the emergency. We cannot believe that Lance, which dealt with the very different context of non-emergency and non-voter approved contract bonds, intended that irrational result.

From public statements, we gather that the plaintiffs may proffer a facially less extreme position, which is that while emergency bond proceeds could be used to meet "direct" expenses caused by the emergency, Lance forbids using them to pay "ordinary" state operating expenses for which there is now insufficient revenue due to a tax shortfall caused by the emergency. We would think that the courts, however, would be reluctant to insert themselves into the process of discerning the difference between an expense that is directly caused by the emergency from an ordinary expense that is not covered due to revenue shortfall caused by the emergency. Money being fungible, this exercise seems to us to require an exquisite talent at accounting forensics that is beyond judicial competence. The most relevant constitutional language speaks of incurring liabilities "to meet an emergency," which does not require the more demanding finding that the liability was caused by the emergency, and the court should not create a causal nexus requirement that the Constitution itself omitted.

If a textual roadmap is needed to reach this result, then we think either of the following would suffice: (1) Proceeds from bonds that fit within the "emergency" exemption of the Debt Limitation Clause may be allocated as the Legislature sees fit to address the emergency, and thus may count as "revenue" to fund state operating costs. Lance v. McGreevey should be clarified or distinguished accordingly. (2) "Liabilities" incurred to "meet an emergency caused by disaster" should not count as ordinary expenditures for purposes of the balanced budget requirement. Arithmetically, the two pathways should lead to the same result.

If the Legislature judges that continued state funding for law enforcement, or K-12 education, or medical care, is necessary to "meet the emergency" (in the language of the Debt Limitation Clause), do the courts really want to get in the business of second guessing that policy judgment, even if those expenses would have been incurred under normal circumstances? Measuring how much of an expense is extraordinary, i.e. "directly" caused by the emergency, as opposed to an expense that might have been incurred anyway but is still deemed essential to maintain the basic structure of civilized society, is a meaningless exercise. The New Jersey Constitution should be construed to permit the Legislature to engage in extraordinary means to incur both in times of calamity, such as those that have recently befallen our state. Any other interpretation would mean that there are times when our state Constitution is indeed a suicide pact.