by Michael B. Kent, Jr.

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.

Filed Complaint

Motion to Dismiss

Opposition to Defendants’ Motion to Dismiss

Filed Order Phillips v NCDPI, et al

By: Joelle Harvill

On January 11, 2023, the Biden Administration renewed the COVID-19 Public Health Emergency. That means certain laws and regulations that were triggered by the Public Health Emergency will continue to be in effect as long as the Public Health Emergency continues. One of those things is the Medicare and Medicate Provider COVID-19 Vaccine Mandate. This affects nursing students and their clinical rotations.

Nursing students in North Carolina are required to offer proof of various vaccinations for the clinicals based on the state’s required childhood immunizations. College or high school students (or parents of minor students) can write a statement seeking a religious exemption. “Upon submission of a written statement of the bona fide religious beliefs and opposition to the immunization requirements, the person may attend the college, university, school or facility without presenting a certificate of immunization.” North Carolina General Statute 130A-157.

What about nursing students for clinical rotations? That’s more complicated because of a federal regulation that affects the facilities where most clinical rotations occur.

On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) issued an interim final rule (the “CMS Rule”) requiring COVID-19 vaccination for staff at Medicare- and Medicaid-certified providers and suppliers. That rule has been challenged by multiple States’ Attorneys General in two different lawsuits. The CMS Rule may eventually be overturned but that doesn’t help if a student needs the clinical to graduate before then. So what does a nursing student do?

In fall 2022, it appeared medical facilities were relaxing their vaccination requirements. On November 17, 2022, Attorney Generals in 21 states filed a petition to end the COVID-19 vaccination requirement. The Biden Administration pushed back on that request, and on November 22, 2022, announced a new enforcement guidance by CMS reminding healthcare providers of COVID-19 vaccine requirements. Here is the latest guidance revision.

The CMS Rule includes students in the definition of “staff” required to be vaccinated. Students have never been considered staff before this rule which has led to some confusion. It also requires providers and suppliers to implement a procedure for “staff” to be able to request an exemption for the COVID-19 vaccination requirements based on Federal law for ADA disability, medical conditions, or sincerely held religious beliefs, practice, or observance.

Many of the larger colleges are aware that clinical facilities are required to have a procedure for students to seek an exemption and will have exemption forms from the facilities for the student to submit. Other colleges may not know of this requirement or ignore it. A nursing student should ask the college nursing program clinical coordinator for a contact at the clinical rotation facility site to request an exemption for the COVID-19 vaccination per the facility’s procedure, as required by the CMS Rule. The clinical facility will most likely require testing and wearing of a fitted N95 mask as an accommodation for the request.

If you are a nursing student who has requested an exemption and are being passed around like a hot potato with no one willing to take responsibility for considering your request, we may be able to help. You can contact us at Envisage Law, (919) 755-1317.

Envisage Law is proud to announce that three of its attorneys, William Pinna, Anthony Biller, and Adam Banks, have been recognized by their peers as leaders in their respective areas of practice. Envisage Law would also like to congratulate James Lawrence for his exceptional work on a groundbreaking case that has garnered national attention.

Envisage Law Partners William “Bill” Pinna and Anthony “Tony” Biller were both recognized by Best Lawyers in America. Best Lawyers is a rigorous peer-review survey comprising more than 12.2 million confidential evaluations by top attorneys, and unlike other awards, no participation fee or payment is allowed. These principles make the Best Lawyers in America Award one of the most highly regarded awards for clients and other professionals.

This marks the second time Bill has been identified for his outstanding work in Tax Law by Best Lawyers in America. With over 50 years of experience, Bill has assisted clients in navigating the complexities of tax, estate, corporate, and business law. In addition to his legal work, Bill has taught tax law at North Carolina State and Duke universities and served as Chairman of the North Carolina Property Commission for the North Carolina Department of Revenue.

For the fifth straight year, Tony has been nominated and received the Best Lawyers in America Award for his work in Litigation – Intellectual Property and Patent Law. As a former Army Airborne Ranger in the 82nd Airborne Division, Tony knows that hard work pays off. Tony has litigated hundreds of commercial disputes in federal and state trial and appellate courts across the country and has helped clients resolve and avoid even more disputes without costly litigation. He also has extensive experience assisting clients with their trademark and IP needs worldwide.

For the third year, Adam Banks has been selected as a 2023 North Carolina Rising Star. Only 2.5 percent of attorneys in North Carolina are included in this prestigious list of attorneys. Adam is a JAG officer with the North Carolina National Guard and has served in both Kuwait and Iraq. Adam regularly handles commercial disputes, unfair competition claims, construction defects, warranty claims, insurance coverage and bonding conflicts, and other commercial litigation. Adam and Tony, together with the other litigators at Envisage, also litigate civil rights and constitutional law claims.

These latest awards come after James Lawrence’s national recognition for innovative work on a recent case. James served as lead counsel for independent journalist and former New York Times reporter Alex Berenson in his lawsuit against Twitter. A path-breaking case, Mr. Berenson’s lawsuit led to his reinstatement on the platform, the first known reinstatement of its kind. Documents obtained as part of that lawsuit also demonstrate that actors in the federal government were actively involved in encouraging Twitter to censor its users. National outlets have reported on the case, including Revolver News, Breitbart, The Wall Street Journal, and The Atlantic. In addition, the outcome has been discussed on national podcasts such as The Joe Rogan Experience and TimCast.

The Envisage Law Firm was founded in January 2021 when the attorneys of Pinna, Johnston & Burwell, P.A. joined with Anthony Biller, PA, to create a full-service commercial law firm focused on civil litigation, business transactions, tax and estate planning, and commercial real estate.