Now that Gov. Roy Cooper has allowed private bars in North Carolina to reopen with limited capacity, a Greenville bar owner is shifting the focus of her lawsuit against Cooper.
Newly filed documents in the Waldron v. Cooper suit show the case’s new emphasis. The case will focus exclusively now on challenging the governor’s authority to issue executive orders that shuttered some private bars completely for nearly a year.
Club 519 and owner Crystal Waldron filed suit against Cooper in December. At that time, the suit focused on Cooper’s executive orders that forced the Greenville bar to shut down last March. Multiple Cooper orders forced Club 519 and many other private bars to remain closed for almost a year, even as the governor allowed other types of bars across the state to reopen during the course of the coronavirus pandemic.
During a Feb. 18 hearing on Waldron’s suit, Superior Court Judge James Gale indicated his frustration that state officials had offered no clear reasons for distinguishing private bars from other businesses serving alcohol. Club 519’s lawsuit had claimed the governor had been engaging in economic favoritism.
While Gale was considering whether to grant Waldron an injunction against Cooper’s shutdown orders, the governor issued another executive order with new rules. Cooper allowed private bars to reopen with limited capacity.
Lawyers for Waldron and Cooper conferred with Gale Monday about the impact of the governor’s latest order on the lawsuit. The judge called for an amended complaint and new arguments in the case by today.
The latest version of Waldron’s suit likely would move it out of Gale’s courtroom. Instead of challenging the application of Cooper’s orders to Club 519, the amended suit will tackle a larger question: Does Cooper have the constitutional authority to dictate terms of a business’s reopening one year into a pandemic?
Waldron’s amended lawsuit contends that the state Emergency Management Act violates the “nondelegation doctrine,” which forbids the General Assembly from delegating its legislative powers to the governor or any agency. The suit asks the chief justice of the N.C. Supreme Court to set up a three-judge Superior Court panel to hear the case.
“The biggest issue in this case has always been Gov. Cooper’s illegitimate use of legislative powers during the pandemic,” said Jessica Thompson, Waldron’s attorney. Thompson works for the Pacific Legal Foundation. “Even though Club 519 can reopen, there’s nothing to stop Gov. Cooper from once again shutting the business down. The governor is overstepping his constitutional role by making laws, something the state’s constitution clearly leaves to the legislature. A year into the pandemic, it’s now long past the time to return to a constitutional system of government.”