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

The Carolina Journal

  • 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.”

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