One of two COVID bar shutdown lawsuits dismissed

While one group of North Carolina bar owners continues to press its lawsuit against the governor over the economic impact of COVID-related shutdowns, a second group has ended a similar suit.

Plaintiffs in a case called Howell v. Cooper filed Thursday a notice of voluntary dismissal of the suit filed in 2021. The dismissal is “with prejudice,” meaning bar owners in the Howell case cannot refile their suit in the future.

Meanwhile, bar owners linked to the North Carolina Bar and Tavern Association continue to pursue similar claims to those in the Howell case. Lawyers for current Gov. Josh Stein and the bar owners held a June 9 status conference with Superior Court Judge Edwin Wilson.

The dismissal in the Howell case arrived 10 months after the state Supreme Court’s Aug. 22, 2025, rulings that bar owners in both cases could proceed with their claims. Both lawsuits challenged then-Gov. Roy Cooper’s executive orders shutting businesses down during the COVID pandemic.

A Superior Court judge issued an order four days after that ruling declaring the Howell case inactive. Court records indicated that nothing else had happened in the suit until Thursday’s dismissal notice.

Chief Justice Paul Newby wrote for the 5-2 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.”

“One of two COVID bar shutdown lawsuits dismissed” was originally published on www.carolinajournal.com.