Court Rules That COVID-19 Orders Violated Constitution

by Michael B. Kent, Jr.

The North Carolina Court of Appeals recently issued an important decision addressing one of Governor Cooper’s COVID-19 “lockdown” orders. In North Carolina Bar & Tavern Association v. Cooper, the Court ruled that the order violated the North Carolina Constitution by allowing some businesses to reopen while forcing others to remain closed.

The case involved a challenge to Executive Order No. 141, which permitted certain drinking establishments—such as restaurant and hotel bars—to resume operations so long as they utilized certain safety precautions. The order required private bars to remain closed,
however, stating that “by their very nature,” such businesses “present greater risks of the spread of COVID-19.” Owners of the shuttered bars sued, alleging that the order effected a taking of their businesses and violated their constitutional rights.

Although the Court disagreed that the order constituted an unlawful taking, it found in favor of the bar owners on two of their other claims. First, the Court held that the order violated a provision of the state constitution guaranteeing to all North Carolinians “the enjoyment of the fruits of their own labor.” Second, the Court held that the order violated the state constitution’s guarantee of “the equal protection of the laws.”

The order ran afoul of both provisions, the Court ruled, because it resulted in an “irrational and arbitrary” distinction between those bars that could reopen and those that could not. The Court rejected the claim that the decision was based on “data and science.” Much of the government’s evidence came from the Governor’s “own assertions” in other executive orders or from ordinary news articles that could be found “by private citizens utilizing Internet search engines.” The one scientific study the government did produce post-dated Executive Order No. 141 (and, therefore, could not have been the basis for it) and failed to “differentiate between various types of bars.”

Because the evidence did not support the decision to allow some bars to reopen while forcing others to stay closed, the decision was “illogical and not rationally related” to the government’s goal of slowing the spread of the virus. That rendered the executive order unconstitutional, notwithstanding the public health concerns for which it was designed. “Our Constitution,” the Court explained, “applies even when a government official acts with the best stated purposes.”

Envisage attorneys help individuals and businesses protect their constitutional and other legal rights amidst increasingly complex regulatory landscapes (including a previous challenge to Executive Order No. 141). If you have questions about this alert or think we might be of assistance, you may contact us at (919) 755-1317.