Bar owners oppose Cooper’s appeal in COVID shutdown suit

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  • Bar owners suing the state of North Carolina over COVID-related shutdowns oppose Gov. Roy Cooper's latest legal request. Cooper wants the state Supreme Court to take the case.
  • Plaintiffs in the case Howell v. Cooper argue that there's no reason for the state's highest court to enter the dispute.
  • A split 2-1 ruling from the state Court of Appeals would allow bar owners to pursue their case for money damages. Cooper limited or closed bar operations in North Carolina from March 2020 to May 2021.

Bar owners suing the state of North Carolina over COVID-related shutdowns in 2020 oppose Gov. Roy Cooper’s latest action in the case. Cooper is asking the state Supreme Court to take up the dispute.

A split 2-1 state Appeals Court panel ruled in September that the suit, Howell v. Cooper, could move forward against the governor and the state. The bar owners seek monetary damages to compensate them for losses linked to government-enforced shutdowns during the pandemic.

In a court filing Thursday, more than a dozen bar owners and operators urged the high court to deny the governor’s request.

Cooper’s “appeal does not have significant public interest, does not involve legal principles of major significance to the jurisprudence of the State, and the Court of Appeals decision is in keeping with prior decisions of this Court,” wrote attorney Chuck Kitchen.

The bar owners rejected the state’s argument that they should have pursued a preliminary injunction against the COVID shutdowns before seeking money damages. Most plaintiffs in the Howell case took part in an earlier suit that sought an injunction. Courts dismissed that earlier request.

“Appellants contend that ‘plaintiffs never moved for a temporary restraining order or a preliminary injunction to prevent these time-limited restrictions from being enforced against them.’ This is not factually correct,” Kitchen wrote. “The Plaintiffs did seek a preliminary injunction which was denied. … The facts of this case do not support the issues which are being sought by the Appellants.”

Kitchen reminded the Supreme Court that Cooper ordered bars to close on March 17, 2020. The governor did not allow them to reopen at full capacity until May 14, 2021. “Far from being a temporary measure, bars owned and operated by the Plaintiffs–Appellees were ordered closed in whole or in part for a period of 14 months.”

The bar owners reject the state’s arguments that the Howell plaintiffs failed to follow proper procedures.

“The State Defendants–Appellants conflate the major issues in the appeal which involve constitutional rights being infringed by the State with purported pleading and procedural requirements which the State seeks to impose to avoid payments for constitutional deprivations,” Kitchen wrote. “There is little public interest in pleading requirements, but there is significant public interest in vindicating unconstitutional executive orders. That issue will be decided by the appeal in this case.”

“The allegation that the State could suffer significant monetary claims if the Court determines that the Plaintiffs’ constitutional rights were violated is simply not a reason to impose new pleading requirements in constitutional cases.”

State lawyers filed their notice of appeal on Sept. 27.

“In their complaint, plaintiffs sought both injunctive relief and money damages. But over the course of this litigation, plaintiffs never moved for a temporary restraining order or a preliminary injunction to prevent these time-limited restrictions from being enforced against them,” wrote lawyers from the NC Department of Justice. “Instead, plaintiffs pursued only damages. And because the challenged executive orders expired more than two years ago, plaintiffs’ claims for injunctive relief have long since become moot.”

“Even though plaintiffs chose not to seek injunctive relief while the challenged executive orders were in effect, the Court of Appeals majority held that plaintiffs may now seek damages against the State for taking steps to protect public health during the worst pandemic in a century,” the state’s court filing added. “In reaching this conclusion, the Court of Appeals rejected defendants’ argument that plaintiffs’ damages claims are barred by sovereign immunity” under a precedent case from 1992 called Corum v. University of North Carolina.

Judge April Wood wrote the majority decision in the Appeals Court’s Sept. 5 ruling in Howell v. Cooper.

“Plaintiffs’ complaint alleged causes of action under N.C. Const. art. 1, §§ 1, 19, regarding North Carolinians’ right to ‘the enjoyment of the fruits of their own labor’ and to substantive due process under ‘the law of the land.’ We hold sovereign immunity does not bar Plaintiffs’ claims and Plaintiffs state colorable constitutional claims,” Wood wrote.

A “colorable” claim means that a legal claim is strong enough to move forward in court.

Part of the suit already had been transferred to a three-judge trial court panel. That panel will deal with the bar owners’ claims that the state Emergency Management Act used to justify the governor’s COVID shutdown was unconstitutional.

The Appeals Court affirmed a trial judge’s February 2022 decision allowing the rest of the case to proceed.

“We conclude the Complaint sufficiently alleges state violations of Plaintiffs’ constitutional rights because it coherently pleaded the Governor’s orders violated their constitutional right to earn a living,” Wood wrote.

Bar owners focused on the impact of the 2020 COVID shutdown on their constitutional rights to enjoy “the fruits of their own labor,” Wood noted. “Plaintiffs have a fundamental right to earn a living from the operation of their respective bar businesses,” she wrote. “The constitutional right to produce a living from the income of one’s business is a protected right under the fruits of labor clause.”

“Where, as here, the complaint alleges that the blanket prohibition — rather than regulation — of an entire economic sector violates one’s right to earn a living, that complaint states a colorable constitutional claim,” Wood explained.

The lawsuit also survives under the “law of the land” clause, which Wood describes as “North Carolina’s version of the federal substantive due process clause.”

Bar owners also “adequately pleaded” at this point in the legal process that they had no other remedy than a lawsuit seeking payments from the state, Wood explained. “Plaintiffs pleaded they do not have an adequate state remedy: ‘The Emergency Management Act under which the Defendants are operating does not provide for a plain, speedy, or adequate remedy at law. The [Plaintiffs] therefore do not have an adequate state remedy.’ We agree there is no other adequate state remedy now that any claim for injunction is moot as the executive orders are no longer in effect.”

Appellate judges took no stance on whether the COVID pandemic justified Cooper’s actions. “We do not address the validity of the Governor’s actions under the Emergency Management Act, as the constitutionality of those statutes has yet to be determined,” Wood wrote.

Judge Fred Gore joined Wood’s opinion. Both are Republicans. Judge John Arrowood, a Democrat, dissented.

Arrowood wrote that the majority should have determined whether Cooper had a “rational basis” for issuing executive orders that shut down the bars involved in the lawsuit.

“Because there is no question that issuing the executive orders was rationally related to a
legitimate government purpose — here, combatting the spread of the COVID-19 virus
and protecting the public’s health and safety — Governor Cooper’s action under the
statute clearly satisfies the rational basis standard,” Arrowood wrote. “Certainly, orders to combat a virus and protect the health and safety of the public during a pandemic cannot be
considered ‘arbitrary.’”

“I would hold Governor Cooper had the statutory authority to issue the executive orders in question and his actions during the pandemic easily meet the rational basis standard,” the dissent added. “Therefore, the complaint did not state a colorable claim.”

Arrowood also emphasized the “practical implications” of the majority’s decision. “If and when we face such a crisis again, the Governor must be able to make rationally related choices to stem the effects of that emergency quickly, without concern that those hard choices will subject them or the State to protracted litigation,” Arrowood wrote. “Curtailing the ability of our Governor to issue executive orders during a state of emergency sets a deadly precedent that will prove to have grave consequences in the future.”