North Carolina Supreme Court Allows Trial To Proceed For Cases Brought By Bar Owners Over Arbitrary Restrictions
In a pair of decisions released last Friday, the North Carolina Supreme Court ruled 5-2 in favor of bar owners.
In the first case, Howell v. Cooper Chief Justice Paul Newby wrote, “” There is no dispute here that defendants are state actors and that plaintiffs lack an adequate, alternative state remedy. Furthermore, applying standards crystallized in Kinsley v. Ace Speedway Racing, Ltd, we conclude that plaintiffs’ claims are colorable because the complaint pleads facts that, under current law, are sufficient to support the alleged violations of their rights to earn a living. Therefore, plaintiffs satisfy the pleading requirements, and sovereign immunity does not bar their claims. The decision of the Court of Appeals allowing plaintiffs’ claims to proceed past the pleading stage is modified and affirmed.”
Democrat Justice Anita Earls dissented, saying, “The Court today reshapes the Fruits of Their Own Labor Clause—and with it, the constitutional balance of power. The majority abuses notice pleading principles to invite meritless litigation.”
In the second case, North Carolina Bar and Tavern Association V. Governor Josh Stein, Associate Justice Phil Berger Jr. wrote, “Plaintiffs here, like the plaintiff in Ace Speedway, have stated colorable claims under the North Carolina Constitution. But this case presents a slightly different question: whether the trial court’s entry of summary judgment in favor of the Governor was proper. Because our Fruits of Labor test is a fact intensive inquiry, we agree with the Court of Appeals that the trial court erred when it entered summary judgment. However, the Court of Appeals incorrectly applied rational basis review to the Fruits of Labor claim. As discussed further herein, because the Court of Appeals did not have the benefit of our decision in Ace Speedway when it issued its opinion in this case, and we modify and affirm in part the vacatur of the trial court’s order, and remand to the trial court.”
Democrat Associate Justice Allison Riggs wrote, “The Corum claim of the North Carolina Bar and Tavern Association (the Association) under the Fruits of Their Own Labor Clause should be barred on the basis of sovereign immunity because the members of the Association have an adequate alternate remedy under the law, a claim for compensation under the North Carolina Emergency Management Act. Thus, I would conclude that the trial court properly entered judgment in favor of the Governor on his motion to dismiss the Fruits of Their Own Labor claim.”
Bottom Line: The Republican majority on the North Carolina Supreme Court provided clear constitutional grounds for the bar owners impacted by Cooper’s executive orders during COVID. During the pandemic, Cooper’s orders allowed restaurants to operate, but specifically targeted bars for no scientific reason. Both of these cases now head back to the trial court, so it could take several months, if not years, for these cases to be fully resolved.
Tim’s Take: This litigation will spotlight Gov. Cooper’s actions during the pandemic. During the time, Cooper asserted that he was “following the science” to make the best decision possible. But in hindsight, its remains far from clear if these harsh measures did anything, but what is clear is that thousands of North Carolinians were impacted by likely unconstitutional executive orders.
