Home>Highlight>State Police can’t arrest legislators for entering statehouse without vaccine proof, OLS says

The New Jersey Statehouse in Trenton. (Photo: Kevin Sanders for New Jersey Globe)

State Police can’t arrest legislators for entering statehouse without vaccine proof, OLS says

New Office of Legislative Services opinion says Senate President, Speaker can provide other voting options

By David Wildstein, December 01 2021 10:58 am

A legislator who declines to follow a new Covid policy cannot be arrested, according to a new opinion issued by the non-partisan New Jersey Office of Legislative Services, but that the legislature itself could enforce their own rules to exclude the in-person presence of a member.

“An arrest of a Legislator by State Police officers based solely on the grounds that the Legislator is not in compliance with the JMC COVID-19 policy would violate the New Jersey Constitution,” New Jersey Office of Legislative Services counsel Jason Krajewski said in a letter to a Republican legislative leader on Tuesday.

Krajewski said that the presiding officer has the ability to keep a member off the floor “so long as those actions do not disenfranchise the citizens of the State by completely prohibiting the member’s participation in voting on legislation.”

In a policy that went into effect today, the State Capitol Join Management Commission is requiring legislators and others to provide proof of vaccination or a recent negative Covid test to gain admission to the state house complex.

“On its face, the JMC COVID-19 policy is not unconstitutional or unlawful, as long as the State of emergency first declared in Executive Order 103 of 2020 remains in effect,” Krajewski wrote.

But the OLS opinion appears to allow Senate President Steve Sweeney and Assembly Speaker Craig Coughlin to segregate legislators according to proof of vaccination status by allowing them to vote remotely.

According to Krajewski, “no member of the Legislature, if prevented from entering his or her respective chamber, may be prohibited from recording votes on legislation on the grounds that the legislator is not in compliance with the COVID-19 policy”

Since New Jersey State Troopers ultimately work for the governor, OLS has found some potential conflicts.

“Because State Troopers are executive branch officers, their enforcement of the JMC policy, if by arrest, violates the plain language of the Constitutional prohibition against arresting Legislators going to and attending the sitting of their respective houses,” Krajewski stated.  “The likelihood that the arrest could be of a Legislator who has been critical of the Governor further resonates with the history and intent of the prohibition.”

The newest OLS opinion pushes back on claims by Republicans that separating legislators during a legislative session might violate the U.S. Constitution’s Equal Protection clause.

“The compelling government interest in protecting the health of Legislators and Legislative employees, mitigating the spread of infectious disease, and ensuring the continuity of Legislative business is well established in the text of the policy and by the Legislature’s own actions,” Krajewski explained.  “The policy provides Legislators 3 options: they can choose to be vaccinated; they can choose to take a PCR or rapid test, or they can choose to participate remotely. The variety of options weighs in favor of a government claim that they have adopted the least restrictive means, narrowly tailored to achieve the compelling government objective.”

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