The North Carolina Court of Appeals this month addressed important issues concerning the scope of governmental emergency powers. In Howell v. Cooper, the Court held that the doctrine of “sovereign immunity” did not bar a lawsuit challenging the constitutionality of Governor Cooper’s COVID-19 “lockdown” orders. Additionally, the Court concluded that the lawsuit alleged sufficient violations of the North Carolina Constitution. By allowing these claims to proceed, the decision has the potential to shape the way emergency powers are utilized in future crises.
The case was initiated in December 2020 by several bar owners who asserted that the shutdown of their businesses during the COVID-19 pandemic infringed their constitutional rights. The governmental defendants named in the lawsuit argued that these claims should be dismissed, invoking a doctrine known as “sovereign immunity.”
Sovereign immunity is a court-created rule that generally protects the state and its officials from being sued for the performance of governmental functions. As the Court of Appeals made clear, however, that doctrine is not absolute, and it “shall not operate to deprive North Carolinians of an opportunity to redress alleged constitutional violations.” Where no other adequate remedy exists, the Court held, constitutional provisions become “self-executing,” and sovereign immunity cannot prevent the courts from fulfilling their “sacred duty to safeguard” the rights of citizens.
The Court also ruled that the bar owners’ lawsuit alleged “colorable” (or legally sufficient) claims under two provisions of the state constitution. The first provision guarantees to all North Carolinians “the enjoyment of the fruits of their own labor.” The second provision prohibits the government from depriving any person of “life, liberty, or property, but by the law of the land.”
The Court held that both provisions secured to the bar owners “a fundamental right to earn a living from the operation of their respective businesses,” which was allegedly violated by the Governor’s “blanket prohibition—rather than regulation—of an entire economic sector.” Although the Court did not address the merits of that allegation, leaving the constitutional validity of the Governor’s orders for later determination, it did rule that the bar owners had articulated a sufficient basis for moving forward with their suit.
The Court’s decision was not unanimous, however. One member of the Court dissented on the grounds that the Governor’s orders were rational in light of the health and safety concerns posed by the pandemic. For that reason, the dissent thought the bar owners’ claims were insufficient. Additionally, the dissent warned that the ruling might unduly limit the government’s ability to respond to future emergencies.
The defendants may seek further review from the North Carolina Supreme Court, and even if they do not, there is no guarantee that the Governor’s orders will ultimately be found unconstitutional. But if allowed to stand, the Court of Appeals’s decision increases the likelihood that future governmental actions, even those justified by public exigencies, will be subject to judicial review when constitutional liberties are at stake.
Envisage attorneys help governments, businesses, and individuals navigate a variety of issues relating to the scope and exercise of governmental authority. In a case filed in parallel with Howell v. Cooper, Envisage attorney Anthony Biller acquired the only reported “win” by businesses against Governor Cooper’s “lockdown” orders, obtaining a preliminary injunction preventing the continued enforcement of the orders against a statewide trade organization and its members. If you have questions about this alert or think we might be of assistance to you, you may contact us at (919) 755-1317.