Cooper’s lawyers defend COVID bar shutdowns in NC Supreme Court filing

CJ photo by Maya Reagan

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  • Lawyers for Gov. Roy Cooper filed a brief this week at the North Carolina Supreme Court defending the governor's decision to keep bars closed in 2020 during the COVID pandemic.
  • Howell v. Cooper is one of two cases before the state Supreme Court addressing Cooper's shutdown of bars during the pandemic.
  • In both cases, the state Appeals Court issued rulings allowing bar owners to move forward with lawsuits seeking money damages from the state.

Gov. Roy Cooper’s lawyers are defending his decision to keep bars closed during the COVID-19 pandemic. Cooper’s legal team filed paperwork this week with North Carolina’s highest court.

The governor filed a brief Monday in Howell v. Cooper, one of two state Supreme Court cases involving the government-mandated shutdown of bars in 2020.

“The COVID-19 pandemic ‘was a novel occurrence in modern times and put our national and state leaders in the position to have to make tough, effective choices to swiftly protect the health and safety of their constituents,” Cooper’s lawyers wrote. “Plaintiffs here are bars and bar owners who sued the State of North Carolina and the Governor, in his official capacity, over executive orders that imposed temporary restrictions on bars to protect public health during the COVID-19 pandemic. Plaintiffs seek money damages from the State’s taxpayers over these temporary public-health measures, which expired years ago.”

“Plaintiffs’ damages claims fail,” the governor’s lawyers continued. “Under this Court’s canonical decision in Corum v. University of North Carolina, the judiciary has inherent power to fashion remedies for violations of the state constitution. But that extraordinary power has limits — limits that are designed to ensure that courts stay in their proper lane of authority and respect the policy choices of the political branches.”

“One important limit is that plaintiffs bringing direct constitutional claims under Corum must seek the least-intrusive remedy for their alleged injuries,” Cooper’s lawyers argued. “And as this Court recently confirmed, damages are an intrusive remedy when plaintiffs can access the courts to seek other forms of meaningful relief.”

The bar owners could have sought an injunction instead of asking for money, Cooper’s brief explained. “An injunction would have allowed plaintiffs’ businesses to reopen, thus immediately remedying the harm that they alleged,” the brief continued. “Yet plaintiffs made a strategic litigation choice not to pursue an injunction while the challenged executive orders were in effect. Because injunctive relief was available to plaintiffs then, their damages claims today fail.”

The governor also urged the high court to defer his decision to close bars during the pandemic. “Under that deferential review, it is clear that pandemic-era restrictions on bars — locations that posed an especially high risk of spreading COVID-19 because of their tendency to gather large groups of people, disinhibited by alcohol, in close proximity for extended periods of time — were reasonably related to protecting public health.”

Cooper’s lawyers argued that a state Appeals Court decision allowing the case to move forward “upends longstanding precedent on judicial review of economic regulations, impedes future efforts to protect the public health, and threatens taxpayers with significant damages for indisputably good-faith, reasonable responses to an unprecedented global pandemic.”

The state Supreme Court issued an order on May 30 granting the governor’s September 2023 request to take up Howell v. Cooper. The order arrived nine days after the governor asked the high court to take up a second case brought by the North Carolina Bar and Tavern Association. Justices agreed on June 5 to take that case as well.

In the Howell lawsuit, the Supreme Court granted Cooper’s request to consider the state Appeals Court’s 2-1 decision last September allowing bar owners to proceed with their claims. They seek monetary damages related to Cooper’s decision to keep bars closed as other businesses reopened during the pandemic.

Judge April Wood wrote the majority decision in the case.

“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 was scheduled to 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.

“The COVID-19 pandemic was an unprecedented event that caused the death of over 29,000 North Carolina citizens,” he wrote. “It was a novel occurrence in modern times and put our national and state leaders in the position to have to make tough, effective choices to swiftly protect the health and safety of their constituents. Those actions are entitled to the presumption of validity.”

The dissent issued a warning about the future. “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.”

Seven months after Cooper’s appeal in the Howell case, the state Appeals Court ruled for bar owners and against the governor in a second suit related to COVID shutdowns. In that case, a unanimous Appeals Court panel ruled that bar owners could proceed with their claims. Wood also wrote the opinion in NC Bar and Tavern Association v. Cooper.