State Supreme Court takes case involving Cooper’s COVID bar shutdowns

Carolina Journal photo by Kari Travis

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  • The state Supreme Court has agreed to hear one of two pending cases involving North Carolina bar owners challenging Gov. Roy Cooper's COVID-related shutdowns in 2020.
  • The governor asked the high court in September 2023 to take up the Howell v. Cooper case. The Supreme Court agreed to take the Howell case on Thursday, nine days after Cooper appealed a second case related to bar shutdowns.
  • In both cases, the state Appeals Court issued rulings allowing bar owners to pursue claims that could force the state to pay damages related to Cooper's shutdown orders.

The North Carolina Supreme Court will consider at least one of two pending cases related to Gov. Roy Cooper’s 2020 shutdown of bars during the COVID-19 pandemic.

The court issued an order Thursday granting the governor’s September 2023 request to take up the case 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 have not yet acted on the second case.

Lawyers representing the Bar and Tavern Association filed paperwork Friday asking the state Supreme Court to reject Cooper’s request.

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.

“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,” state Justice Department lawyers representing the governor wrote last year. “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.

“In that case, this Court held that plaintiffs pursuing direct constitutional claims must seek ‘the least intrusive remedy available’ to address the alleged deprivation of their rights,” state lawyers wrote. “Yet the Court of Appeals held that plaintiffs did not need to satisfy this requirement at the pleading stage. Thus, even though plaintiffs failed to seek injunctive relief — a less-intrusive remedy than money damages from the State’s taxpayers — the Court of Appeals held that sovereign immunity is no bar to plaintiffs’ claims.”

“That decision warrants this Court’s review. It departs from this Court’s precedent in Corum, which holds that plaintiffs asserting direct constitutional claims for money damages must show that they are seeking the least-intrusive remedy for their alleged injury,” state Justice Department lawyers argued. “If allowed to stand, the decision could expand the scope of damages that could be awarded against the State in future cases while raising the very kind of separation-of-powers concerns that Corum’s least-intrusive-remedy requirement was designed to prevent.”

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 brought by bar owners. The governor’s lawyers filed paperwork on May 21 asking the state Supreme Court to hear the suit led by the NC Bar and Tavern Association.

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.

Lawyers representing the plaintiffs in that case urged the high court Friday to reject Cooper’s appeal. “[T]he Court of Appeals’ unanimous rulings in favor of the Respondents on their equal protection and ‘fruits of their labor’ claims are based on a straightforward application of existing precedent of this Court,” according to the court filing. “As such, those rulings
neither conflict with precedent nor have jurisprudential significance to justify discretionary review by this Court.”

If the Supreme Court decides to take the case, the bar owners ask justices to review issues not listed in the governor’s appeal. Bar owners had sought compensation from the state under the state Emergency Management Act, as well as lawyers’ fees.

Editor’s note: This article has been updated to include information about a court filing Friday from the NC Bar and Tavern Association.