Sixteen months after Gov. Roy Cooper lifted the last COVID-related restrictions on N.C. bars, a lawsuit at the N.C. Court of Appeals focuses on possible monetary damages for bars that were forced to shut their doors during the pandemic.
The Appeals Court issued an order Monday in the case. Appellate judges denied the plaintiffs’ motion to dismiss an appeal from the state. That means state government lawyers can continue to challenge a trial court’s ruling that allowed the case to continue.
The suit dates back to December 2020, seven months into the pandemic. By that time, Cooper’s COVID-related executive orders had kept bars closed for nine months.
Bar owners from six counties across North Carolina headed to court to challenge the governor’s executive orders shutting down their businesses. Their lawsuit sought to have a key piece of the state Emergency Management Act declared unconstitutional. The plaintiffs also sought damages for the impact of the shutdown on their businesses.
The suit filed in Carteret County Superior Court featured plaintiffs who owned and operated bars in Guilford, Forsyth, New Hanover, Buncombe, and Wake counties, in addition to Carteret.
One piece of the original 14-page complaint called for a three-judge panel to determine that a portion of the state Emergency Management Act was unconstitutional. Cooper relied on the EMA to bypass the Council of State when exercising his emergency powers during the COVID-19 pandemic.
The suit also contended N.C. Gen. Stat. § 166A-19.30(b)(2) had been applied unconstitutionally against bar owners and operators.
That section “provides that municipalities and counties, and in this case Defendant Cooper, have the authority to prohibit the operation of business establishments and therefore to prohibit individuals from earning a living,” according to the complaint.
“The General Assembly does not possess the authority to prohibit the right of individuals to earn a living,” the lawsuit continued. “It therefore cannot give that right to municipalities and counties, and in this case to the Governor.”
The suit asked a court to declare that piece of the Emergency Management Act unconstitutional on its face, as well as in its application to bars and bar owners.
In March 2021 a trial judge transferred the facial constitutional challenge to a three-judge panel in Wake County. In May that year, Cooper issued a new executive order lifting all COVID restrictions on bars.
The governor and state lawyers moved to dismiss the lawsuit in July 2021. By February this year, a trial judge responded. The constitutional challenge shifted to a three-judge panel, while the trial judge dismissed other pieces of the case.
But the judge allowed two claims in the lawsuit to move forward. One alleged that Cooper’s shutdown violated the plaintiffs’ right to earn a living. The other alleged violations of the plaintiffs’ due process rights. Both claims could lead to monetary damages against the state.
Government lawyers are challenging the trial judge’s ruling.
“This appeal concerns whether the Governor and the State can be subject to claims for financial damages for taking steps to protect public health during the worst pandemic in a century,” according to a brief filed Sept. 14 by N.C. Special Deputy Attorney General Matthew Tulchin.
“Like leaders across the country, Governor Cooper issued executive orders that sought to slow the spread of Covid-19 at a time when there was widespread transmission and no effective treatments for the disease. Among other things, the executive orders temporarily closed bars,” Tulchin added. “Over time, the restrictions on bars were gradually eased (allowing for indoor operations with capacity restrictions, expanding hours of operations, allowing to-go sales and home deliveries). On 14 May 2021, through Executive Order No. 215, all temporary restrictions on bars were lifted.”
“Plaintiffs, which include bars and bar owners, claim that the time-limited restrictions on bars violated their constitutional rights, including the right to earn a living,” according to the brief. “However, Plaintiffs’ attempt to bring claims directly under the North Carolina Constitution, and to seek monetary damages, are barred by sovereign immunity. … Nor do Plaintiffs’ claims pass constitutional muster, because the executive orders in question were rationally and reasonably related to a proper governmental purpose, especially during a global pandemic involving the highly contagious Covid-19 virus.”
Plaintiffs will have an opportunity to respond to the state’s arguments before the case heads to a three-judge Appeals Court panel.
There’s no timetable for a ruling in the case.