- The North Carolina Supreme Court heard two cases Wednesday challenging Gov. Roy Cooper's decision to keep private bars closed while other business reopened during the COVID-19 pandemic.
- In both cases, the state Court of Appeals ruled in favor of bar owners.
- Much of the debate focused on whether the governor's actions were justified when he encroached on bar owners' fundamental state constitutional right to enjoy the "fruits of their own labor."
The North Carolina Supreme Court heard two separate challenges Wednesday to Gov. Roy Cooper’s decision to keep private bars closed while other businesses reopened during the COVD-19 pandemic.
In both cases, bar owners seek compensation from the state for the forced closings. The state Court of Appeals upheld a trial judge’s ruling favoring the bars in one case. The Appeals Court also would have allowed the second case to move forward.
Plaintiffs arguing before the high court Wednesday explained that their private bars were treated differently from all other businesses allowed to serve alcohol.
“Restaurants, breweries, wineries, country clubs — all of whom had the capacity and the permission of the state to serve alcohol on premises to individuals — could do business under certain limitations — everyone except our clients, who were constituted private bars,” argued former Supreme Court Justice Bob Orr, representing the North Carolina Bar and Tavern Association in its lawsuit against Cooper.
The distinction between private bars and other businesses violated bar owners’ rights, Orr said.
“This is about fundamental rights set forth in Article I of our state constitution protecting the rights of our citizens to earn a living without having government shut them down arbitrarily,” he argued.
“In this case, you have a situation where you have identical bars being treated differently for no apparent reason,” lawyer Chuck Kitchen argued in the second case, titled Howell v. Cooper.
The only evidence distinguishing private bars from other bars is “economic,” argued lawyer Matt Vaughn. “The ones that were allowed to open create more economic benefit for the state. That is not a police power decision.”
State Deputy Solicitor General Jim Doggett defended Cooper’s actions in both cases. The state took “extraordinary steps to protect public health” during the “extraordinary crisis” presented by COVID-19, he argued. Now the bar owners seek to hold the state liable for its COVID response.
“The relief that they seek is unprecedented,” Doggett argued.
Kitchen defended the bar owners’ claims for compensation.
“That’s what you do in an emergency,” he argued. “Sometimes you take actions. Sometimes those actions aren’t correct. Sometimes those actions aren’t constitutional. What is the remedy? It isn’t to say — ‘Government, you can’t go do that. Stop what you’re doing’ — because you’re in the middle of an emergency.”
“What you say is, ‘Government, you have violated their rights. You have injured people because of what you did. You may have had good reason to do it, but now you’ve got to compensate them,” Kitchen said.
Doggett spelled out potential consequences of rulings favoring the bar owners.
“An enormous number of businesses were closed during the pandemic,” he said. “This would be setting up a precedent that would chill the state’s activities not only in the context of this emergency but others as well. … There would be looming in the background possibly an enormous sum of damages that would be owed to businesses that were closed.”
“Really, it would be staggering,” Doggett added.
“You’re completely missing the idea that there’s a constitutional right for the enjoyment of the fruits of your labor,” Chief Justice Paul Newby responded. “Each individual business owner has a constitutional right to prevent the government from unduly preventing them from having the enjoyment of the fruits of their labor. How can you not give at least some credence to this fundamental right?”
Justice Trey Allen raised similar concerns. “We are talking here about a core state constitutional right that is being completely denied by refusing to allow people to operate at all,” Allen said.
Justice Tamara Barringer pressed Doggett to explain how the private bars in the two cases differed from other bars that Cooper allowed to reopen earlier during the pandemic.
“If the concern is how people behave and they’ve lost their inhibitions or whatever in a big bar, why is it different in a restaurant bar?” Barringer asked. “I did not hear the answer to that question to the point that it satisfied me.”
Justice Richard Dietz pointed to the state Supreme Court’s August decision in Kinsley v. Ace Speedway. It set up a new test to determine whether a government acted reasonably when limiting North Carolinians’ economic rights.
“Now the government understands — the state knows — that just like everybody else it needs to act reasonably,” Dietz said. “Bureaucrats and regulators in the state will now know I need to think carefully about the different options and try to choose one where there’s a good fit between the purpose we’re trying to achieve and the way we try to achieve it.”
“I think the result of that will be better government regulation, better lawmaking, better everything coming from our government because they’ll act reasonably,” he added. “I don’t see a structural problem at all. I think this could be a wonderful thing.”
Doggett warned against subjecting the government’s actions to the type of review Dietz suggested.
“This would not be continuity with what this court has done before,” Doggett argued. “This would be a remarkable new level of judicial intrusion into the work of the political branches.”
The court’s two Democratic members asked questions that appeared to defend their fellow Democrat Cooper’s actions.
“Twenty-nine thousand citizens in North Carolina died during the pandemic,” Justice Anita Earls said. “Isn’t what the executive was faced with was balancing their constitutional obligation and their constitutional and statutory mandate to exercise the police power to protect people’s lives? Isn’t that also in the balance here?”
“Hundreds of thousands” more people could have died if Cooper had taken less restrictive steps, Justice Allison Riggs suggested. “Is the answer in your perspective all or nothing? Either the governor has to reopen everything, folks will die, we’re going to be OK with that because economic liberty is more valuable than physical lives, or we’re going to let the economy of this state suffer — the people suffer economically — by keeping everything shut down?”
There is no deadline for the state Supreme Court to issue decisions in NC Bar and Tavern Association v. Cooper or Howell v. Cooper.