Statehouse Covid policy can’t stop legislator from voting, OLS opinion says

As Republican lawmakers prepare to go to court to block a State Capitol Joint Management Commission policy that would require them to show proof of vaccination or a negative Covid test to participate in tomorrow’s legislative session from the statehouse, the non-partisan New Jersey Office of Legislative Services says the rule “may not be applied or enforced in a way which prevents a legislator from the exercise of representative legislative power on behalf of constituents.”

“The COVID-19 policy is not unconstitutional or unlawful on its face,” said Katelyn McElmoyl Metz, an assistant legislative counsel, in a November 16 letter to the Senate Minority Leader that says the policy can’t be used “in a way which interferes with a legislator’s exercise of representative legislative power on behalf of constituents.”

McElmoyl Metz said that “inconsistent application or enforcement of the policy may give rise to constitutional infirmities not otherwise presented by the text of the policy.”

“The most constitutionally egregious application of the COVID-19 policy would be one that prevents a legislator from recording votes on legislation,” she wrote.  “ It is well-established that Members of the Legislature are elected to a constitutional role in order to represent the will of the people in conducting legislative business.”

But the OLS lawyer believes that if Senate President or Assembly Speaker were to enforce the policy “in a way that unreasonably prevents that Legislator from exercising his or her apportioned share of constitutional legislative power as a political representative of constituents, such actions could effectively lead to the disenfranchisement of constituents and would be unconstitutional.”

According to McElmoyl Metz, the commission also lacks the authority to exercise police power, but suggested that “courts accord wide discretion to administrative agencies to decide how best to approach legislatively assigned”

Additionally, the commission determined last month that persons entering the Capitol Complex wear masks in public areas and undergo a temperature screening.

OLS said the policy “cannot be characterized as imposing an inescapable vaccination mandate as there exists an option to provide proof of a negative test taken within the previous 72 hours.”

The commission has taken steps to make it easier for legislators to comply, including making rapid Covid tests accessible at the statehouse.

Still, the Office of Legislative Services suggest that the State Capitol Joint Management Commission offered “imprecise directives” that could lead to an “arbitrary application and enforcement of the COVID-19 policy, which could, in turn, give rise to a plausible argument that the policy is unconstitutionally vague.”

McElmoyl Metz also suggested that the policy “exceeds the commission’s authority.”

She suggested that the subcommittee of the legislative members might have adopted the policy, rather than one that included executive branch representatives.

OLS dismissed the idea that the Covid test rule would block a legislators’ freedom of speech.

“To argue that the COVID-19 policy somehow interferes with or suppresses a legislator’s personal First Amendment speech rights would likely be unsuccessful,” McElmoyl Metz wrote.