State urges NC Appeals Court to reject compensation for bars shut down for COVID

(CJ photo by Maya Reagan)

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  • Lawyers for N.C. state government urge the N.C. Court of Appeals to reject pleas for compensation from bar owners shut down during the COVID-19 pandemic.
  • A brief filed Friday labels the bar owners' legal argument "novel and unsubstantiated."
  • Gov. Roy Cooper lifted his final restrictions on bars in May 2021, more than a year after initial shutdowns tied to the pandemic.

Lawyers for N.C. state government explained Friday why they believe the N.C. Appeals Court should reject bar owners’ pleas for compensation related to COVID-19 shutdowns.

A trial court dismissed the bar owners’ case in March 2022.

“Proposing novel and unsubstantiated legal theories, Plaintiffs ask this [Apppeals] Court to order the people of North Carolina to compensate them for private business losses sustained as a result of measures taken to protect the public at the outset of the COVID-19 pandemic,” wrote N.C. Senior Deputy Attorney General Amar Majmundar. “The trial court correctly dismissed Plaintiffs’ claims, joining courts across the nation that have unanimously rejected such claims.”

“Indeed, Plaintiffs do not identify a single case anywhere where similarly situated claims for compensation have prevailed,” Majmundar wrote. “That omission is telling. Nearly every state in the nation imposed the types of restrictions at issue here, leading to thousands of lawsuits across the country related to the pandemic. The types of claims made by Plaintiffs have not been successful and are simply untenable.”

“In addition to North Carolina, bars in Alabama, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Indiana, Kentucky, Louisiana, Michigan, Ohio, Oregon, Pennsylvania, Tennessee, and Texas were all closed during the onset of COVID-19,” the state’s brief continued. “Those restrictions were based upon the most current scientific studies and public health data available at the time, which established that bars presented serious and disproportionate risks for the transmission of COVID-19, including numerous documented instances of ‘super-spreading events.’”

“These closures undoubtedly saved lives at a time when vaccinations and effective treatments were unavailable,” Majmundar wrote. “Against this backdrop, any reversal of the thorough and sound decision of the trial court is unwarranted. Like many other state and national leaders, policymakers in North Carolina took measures to protect their citizens through executive orders (“EOs”), unquestionably authorized by the North Carolina Emergency Management Act, that sought to slow the spread and impact of COVID-19 during a time of widespread transmission.”

The state brief reminded judges that federal and state government programs helped “workers, families, and businesses, including bar owners,” affected by COVID-19 closings.

“Yet Plaintiffs ask this Court to upend considered decisions of the political branches of government by recognizing new constitutional claims for tailored compensation that would expose the State to unprecedented financial liability,” Majmundar wrote.

“The negative effects of this intrusion would extend far beyond the pandemic response. If Plaintiffs succeed here, state and local governments would face any conceivable claim alleging loss as a result of prophylactic measures taken to protect the public during a public health or safety emergency.”

“Whether evacuating in advance of a hurricane, cordoning off areas around fires or other hazards, or responding to countless other emergencies and threats to public health and safety, state and local government officials are obligated to take quick, decisive measures to protect their citizens,” the brief continued. “Plaintiffs’ theories would potentially subject them to crippling liability when they do so.”

“This Court should reject Plaintiffs’ novel theories, and join the overwhelming chorus of state and federal courts to recognize that the proper forum for seeking recovery for business losses during the pandemic is the political process — not the courts,” Majmundar wrote.

The case N.C. Bar and Tavern Association v. Cooper started in June 2020, roughly three months into the government-mandated business shutdowns tied to COVID-19. A trial judge denied the bar owners’ request for a temporary restraining order or preliminary injunction three weeks after the plaintiffs filed suit.

Gov. Roy Cooper lifted COVID-related restrictions on bars in May 2021. The bar owners renewed their legal action in October 2021, arguing “that the pandemic-related [executive orders] violated the fruits-of-labor, law-of-land, equal protection, and monopolies clauses of the state constitution.” The new version of the lawsuit sought damages for business lost during the government-mandated closings.

The trial judge dismissed the lawsuit last March.

Bar owners made their case for compensation in a brief filed in November. They will have a chance to reply to the state’s latest court filing. Then the Appeals Court could schedule the case for oral arguments.

There is no deadline for appellate judges to decide the case.