NC appeals court says bars’ challenges of governor’s COVID-19 restrictions can continue

Published 4:05 pm Tuesday, September 12, 2023

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By Gary D. Robertson, Associated Press

Portions of a lawsuit filed by several North Carolina bars and their operators seeking financial damages from the state over COVID-19 restrictions that shuttered doors and curtailed business can continue forward, an appeals court panel has ruled.

In a 2-1 decision, the state Court of Appeals decided on Tuesday that two causes of action stated by the bar owners can’t be halted under a legal doctrine that exempts state government from most lawsuits. The ruling upholds a trial judge’s order from last year regarding the restrictions first issued by Gov. Roy Cooper early in the pandemic.

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The concept of sovereign immunity doesn’t prohibit the bar operators’ claims that Cooper’s executive orders violated their rights within the state constitution to “the enjoyment of the fruits of their own labor” and to substantive due process, Court of Appeals Judge April Wood wrote in the majority opinion.

In an attempt to ease the spread of coronavirus, the Democratic governor issued a series of executive orders that closed bars starting in March 2020. By that summer, bars still had to remain closed, but restaurants and breweries could serve alcohol during certain hours. The plaintiffs said there was no rational basis to treat restaurants and bars differently.

Later in 2020, bars could serve alcoholic drinks in outdoor seating, with time limits later added, which had “the practical effect of making bars unprofitable to operate,” the plaintiffs’ original lawsuit read. All temporary restrictions on bars were lifted in May 2021.

Lawyers for Cooper and the state said the restrictions on bars were based on the most current scientific studies and public health data available at the time. They showed that the virus could quickly spread among people assembled for long periods of time talking loudly or singing, “especially in environments where alcohol acts as a ‘disinhibitor,’” according to a state legal brief.

Wood wrote that the validity of state laws being contested or the merits of the bar owners’ arguments weren’t being considered. But it’s clear that the plaintiffs have “a fundamental right” under the state constitution “to earn a living from the operation of their respective bar businesses,” and its potential violation should be considered in court, she added. Court of Appeals Judge Fred Gore joined Wood’s opinion.

Writing a dissenting opinion, Judge John Arrowood said that the majority got it wrong by not examining whether there was a rational basis for Cooper to issue orders through the state of emergency statute, thus making them valid. Issuing orders to combat the virus spread and protect the public’s health and safety was rationally related to a legitimate government purpose, he added.

“Curtailing the ability of our Governor to issue executive orders during a state of emergency sets a deadly precedent that will prove to have grave consequences in the future,” Arrowood wrote. The split decision raises the likelihood that the state Supreme Court will ultimately rule in the case.

Other claims in the lawsuit that the bar owners have filed either were dismissed or remain pending before panels of trial judges considering the constitutionality of state emergency management laws.

House Speaker Tim Moore and Senate leader Phil Berger are now listed as lawsuit defendants but didn’t actively participate in this specific appeal because of the issues addressed. The Republican-controlled legislature passed laws that attempted to curb Cooper’s COVID-19 business restrictions.