Bar owners’ COVID shutdown lawsuit to get more clarity June 9

A lawsuit challenging then-Gov. Roy Cooper’s decision to keep North Carolina bars closed during the COVID pandemic could move forward after a June 9 hearing.

The state Supreme Court ruled in 2025 that bar owners could pursue their claims that the government-mandated shutdowns violated their state constitutional rights.

Lawyers representing bar owners and current Gov. Josh Stein conferred for roughly 10 minutes Wednesday morning with Special Superior Court Judge Edwin Wilson about how to proceed with the case.

“It seems to me that we’re just sort of tending to this and trying to get everything squared away and that we can do all that on June 9,” Wilson said near the end of the online meeting.

The judge agreed with Stein’s request to dismiss from the case bars and bar owners whom the plaintiffs’ lawyers have been unable to contact since 2024. Wilson signed off earlier on the lawyers’ request to stop representing those clients.

Wilson asked for the parties to submit an order by Tuesday that would finalize the process of dismissing those plaintiffs from the case.

The judge did not take action on the governor’s request to dismiss the North Carolina Bar and Tavern Association from the suit. Stein’s lawyers had filed a motion to drop the group on May 15, but it was not scheduled to be discussed Wednesday. That motion could be addressed June 9.

“We want to get everything cleaned up and see where we’re going from here,” Wilson noted during the meeting.

“I think it would be our position that this hearing is to figure out who is in this case,” said Elizabeth Curran O’Brien, a state special deputy attorney general representing Stein. “Which plaintiffs are pursuing claims in this case?”

The governor’s lawyers want to ensure “that everybody’s accounted for,” added Michael Bulleri, another special deputy attorney general representing the governor. “That there’s no loose plaintiffs floating around that we’re not sure who’s representing them or whether or not they’re participating.”

About “60 groupings” of plaintiffs remain in the case, lawyer Ashley Fox told Wilson. Each grouping links a bar owner with a bar or bars. “When I say 60 groupings, the vast majority of those are made up of one individual plaintiff — the owner — and one entity plaintiff — their bar.”

The North Carolina Bar and Tavern Association and its members challenged executive orders from Cooper that forced bars to remain closed as other businesses reopened during the COVID pandemic.

“NCBATA no longer has a live claim because the expiration of the executive orders mooted NCBATA’s claim for declaratory relief,” wrote state Justice Department lawyers representing Stein on May 15. “The challenged executive orders ceased to be in effect years ago. The North Carolina Supreme Court remanded this matter for further proceedings solely on NCBATA’s claim for compensation under the fruits of labor clause of the North Carolina Constitution. But NCBATA lacks standing to maintain a claim for damages on behalf of its members.”

“[T]hough individual plaintiffs may be able to seek damages for losses caused by challenged executive orders, NCBATA cannot,” the court filing added. The latest version of the lawsuit “alleged that NCBATA is a North Carolina nonprofit corporation and the other parties are its members or their employees. But an association cannot bring damages claims on behalf of its members because ‘individual damage claims by their nature are not common to the entire membership or shared by all in equal degree.’ NCBATA therefore lacks standing to bring a suit to recover damages on behalf of its members.”

The case returned to a trial court after the state Supreme Court ruled in August 2025 that bar owners in two separate cases could move forward with lawsuits against the governor. The bar owners alleged that Cooper’s COVID shutdowns in 2020 violated their rights to operate their businesses. The court’s majority emphasized the bar owners’ state constitutional rights to the “fruits of their own labor.”

Justices split 5-2 in both cases, with the Republican majority splitting from Democratic dissenters.

Chief Justice Paul Newby wrote for the majority in Howell v. Cooper. The Howell plaintiffs challenged Cooper’s decision to keep bars closed as other businesses reopened during the 2020 pandemic.

“The complaint in this case alleges that defendants impermissibly abridged plaintiffs’ fundamental rights to earn a living when, in response to the novel coronavirus disease (COVID-19), the Governor issued executive orders that either overtly ordered plaintiffs to close their bars or so severely restricted their operations that plaintiffs found it no longer practicable to remain open,” Newby wrote. “Defendants insist that plaintiffs’ claims are barred under the doctrine of sovereign immunity and must be dismissed.”

“Under our caselaw, however, plaintiffs may bring a direct claim against the State under the state constitution if they colorably allege that a state actor violated their state constitutional rights, thereby causing injury for which there is no other adequate, alternative state remedy,” Newby added. “Sovereign immunity does not bar these so-called ‘Corum claims.’”

Corum refers to a 1992 case in which the state Supreme Court allowed plaintiffs to pursue lawsuits against the state for constitutional violations when they have no other possible remedy.

“[W]e 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,” Newby added.

“[I]mportantly, if proved, the facts alleged in the complaint could entitle plaintiffs to relief under the Fruits of Their Own Labor Clause and Law of the Land Clause,” the ehief justice explained. “Indeed, taken as true, the factual allegations indicate that at least some of the executive orders, when viewed individually and/or cumulatively, burdened plaintiffs heavily.”

The Supreme Court ordered the Howell case sent back to a trial judge.

“We recognize that the Governor and his staff were operating in an emergency scenario and that each executive order represents a decision at a particular point in time,” Newby wrote. “Accordingly, when evaluating these emergency executive orders, … the analysis must take into consideration the information available at each point in time. Measures that may have been effective at an earlier time may not have been effective when imposed later.”

“To prevail, plaintiffs must show that the executive orders’ restrictions on bars were not reasonably necessary,” the chief justice explained. “These determinations will ultimately be matters of degree for the court to decide in light of the established facts. We do not deign to predict exactly what the evidence will be or what it will show, so we take no position on these ultimate questions.”

“We acknowledge that the COVID-19 pandemic was a chaotic period of time,” Newby wrote. “It is important to remember, however, that the Governor was not the only person facing uncertainty. Small business owners across the state dutifully shuttered their doors and scaled back operations without knowing exactly when they could open or operate fully again. They, too, did not know what the future held and were without the benefit of hindsight. Many were compelled to lay off employees, deplete cash reserves, take out unwanted loans, or close for good.”

“By virtue of the enshrinement of the fundamental right to the fruits of one’s own labor, the basic promise of the state constitution is that government regulations of this right are open to scrutiny,” the chief justice explained. “It may be that the executive orders’ restrictions on bars were reasonably necessary, but the state constitution gives plaintiffs the opportunity to put them to the test.”

Justice Anita Earls wrote for the two dissenting Democrats.

“The Court today reshapes the Fruits of Their Own Labor Clause — and with it, the constitutional balance of power,” Earls wrote. “The majority abuses notice pleading principles to invite meritless litigation. Once those cases arrive, the majority grants itself a roving license to second-guess policy choices, reweigh trade-offs, and displace decisions appropriately made by the political branches. Its new doctrine has no basis in this Court’s unanimous opinion from one year ago, Kinsley v. Ace Speedway Racing, Ltd., … nor in our constitutional scheme.”

“If this logic holds, it risks unsettling the separation of powers and turning a constitutional safeguard into a judicial veto,” Earls added.

The Fruits of Their Own Labor Clause “drifts ever closer” to becoming a judicial “weapon,” “as this Court installs the judicial branch as superintendent of laws and regulations that have economic effects,” the dissent continued. “The state Constitution does not endorse such a judicial power grab nor should a court that styles itself as constitutionally conservative.”

Justices also split, 5-2, in a separate suit pitting the North Carolina Bar and Tavern Association against the governor.

“According to the trial court, Cooper’s executive orders restricted full operation of plaintiffs’ establishments for over 400 days while permitting other businesses to reopen,” Justice Phil Berger Jr. wrote for the majority. “Plaintiffs argue that the closure and differing treatment violated constitutional and statutory guarantees. Governor Cooper contends that the measures were based on science and data and were necessary responses to an ongoing emergency.

“But even in a declared emergency, the powers of those who act on behalf of the people have limits, and the citizens of this state rejected ‘because I said so’ governance long ago,” Berger added. “However well-intentioned government actors may be, they are constrained by the enduring commands of the Constitution; and constitutional guarantees cannot be suspended in this state by executive fiat.”

Berger cited the 2024 Kinsley v. Ace Speedway case, in which “we unanimously established a workable Fruits of Labor test.”

As with Howell, the NC Bar and Tavern case returned to a trial judge. The high court tasked the judge with addressing the “fruits of labor” claims. The Supreme Court rejected other pieces of the case dealing with equal protection claims and alleged violations of the Emergency Management Act and Public Records Act.

Justice Allison Riggs wrote for the two dissenting Democrats.

“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,” Riggs wrote. “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.

“[T]he Association has not met its burden of forecasting evidence that (1) there was not a ‘proper government purpose for the [state action]’; or (2) the ‘means chosen to effect that purpose’ were not ‘reasonable.’ Although the Association claimed otherwise in its complaint, it put on no competent evidence in seeking summary judgment that the Governor’s stated purpose for entering Executive Order 141 — slowing the spread of COVID-19 to save lives — was an improper purpose or that the Governor’s actual purpose was something different.”

“Bar owners’ COVID shutdown lawsuit to get more clarity June 9” was originally published on www.carolinajournal.com.