Judge rejects NC bar owners’ motion, 2nd case ‘successfully mediated’

A Superior Court judge rejected Tuesday a request from NC bar owners who were seeking to split two pieces of their lawsuit over government-mandated COVID closings in 2020 and 2021.

Meanwhile, a hearing in the case revealed that a second lawsuit involving a separate group of bar owners had been “successfully mediated” earlier this year.

The North Carolina Supreme Court issued rulings last year supporting bar owner plaintiffs in both cases.

No splitting of case

Judge Edwin Wilson ended a 40-minute hearing at the Wake County courthouse Tuesday morning by denying bar owners’ request to bifurcate, or split, their case into two parts. The first part would have determined the governor’s liability for financial losses tied to bar shutdowns in 2020 and 2021. The second part would have involved the discovery process for assessing damages.

The bar owners’ lawyers specifically objected to lawyers from the North Carolina Department of Justice “smothering our clients” with requests for information. DOJ lawyers defended the requests as necessary to determine which bar owners have legal standing to take part in the case.

The DOJ lawyers work for North Carolina Attorney General Jeff Jackson. They represent Gov. Josh Stein, the official defendant in the case. Stein became the defendant last year when he succeeded Roy Cooper.

Cooper was the governor who ordered North Carolina bars closed in 2020. He is now the Democratic nominee in North Carolina’s US Senate race.

Wilson did not address a separate request from bar owners to order depositions from Cooper and Mandy Cohen, his secretary of the Department of Health and Human Services during the COVID pandemic. Cooper and Cohen were the most visible representatives from state government during the early days of pandemic-related shutdowns.

second case mediated ‘successfully’

Special Deputy Attorney General Michael Bulleri confirmed during Tuesday’s hearing that a separate dispute between bar owners and the governor, a case called Howell v. Cooper, had been “successfully mediated.” Carolina Journal reported in June that plaintiffs in the Howell case had voluntarily dismissed their lawsuit.

Bulleri told Wilson that the bar owner plaintiffs in Howell had provided the type of information that some plaintiffs in the ongoing case had not offered.

The discussion also revealed that the ongoing case, initially filed by the North Carolina Bar and Tavern Association, started with more than 200 plaintiffs and now has 52. Another 20 or more could drop out of the case, Bulleri predicted, leaving a list of 30 or so plaintiffs.

The governor’s lawyer suggested that the “mass exodus” of plaintiffs was likely tied to the requests for information during the legal process known as discovery.

“There are a lot of really small businesses,” responded Bob Orr, the former North Carolina Supreme Court justice who is helping to represent the bar owners. “After six years, many of them have given up. They’re throwing in the towel.”

Orr accused DOJ lawyers of “overcomplicating” the case. He reminded Wilson that the state Supreme Court’s decision ordered the trial court to determine whether Cooper made a reasonable decision when he ordered private bars to remain closed in 2020 as other businesses reopened.

“The burden of proving the reasonableness of the decision is on the governor,” Orr said. “The burden is not on the plaintiffs.”

Mike Tadych, also representing the bar owners, accused Cooper of performing “Kabuki theater” in 2020 when he forced private bars to remain closed while allowing restaurants, breweries, wineries, country clubs, and every other type of establishment with an alcohol license to reopen.

Howell v. Cooper resolved

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 Cooper’s executive orders shutting businesses down during the COVID pandemic.

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.”

Cooper, Cohen targeted

Bar owners in the NCBATA case filed a court document last month suggesting that state government lawyers representing Cooper are trying to shield him from providing testimony under oath as he runs for Senate.

Meanwhile, DOJ lawyers sought to have the North Carolina Bar and Tavern Association removed as a plaintiff. The governor’s lawyers argued that the association itself cannot seek damages linked to bar shutdowns. Damages would apply only to individual bars and bar owners.

“NCBATA lacks standing to pursue compensatory damages, the sole remaining relief requested in this case,” the governor’s lawyers wrote on July 1. “This Court should therefore dismiss NCBATA’s claim in its entirety.”

A separate July 1 court filing explained the bar owners’ request to split the liability and damages portions of the case.

“If the Court finds that Governor Cooper’s issuance of the challenged Executive Orders, including the distinction therein between ‘private bars’ and other types of bars, was not reasonable and thus violated Plaintiffs’ constitutional rights, only then would the Court be tasked … to determine an appropriate remedy and apply it to each Plaintiffs claim,” the bar owners’ lawyers wrote.

The plaintiffs filed a “motion to compel” on June 25. It targeted Cooper and Cohen. A court filing the following day criticized lawyers representing Cooper and Cohen for seeking a delay in dealing with the motion. The same lawyers represent Stein, who became the official defendant in the lawsuit when he succeeded Cooper last year.

“It is not clear from defense counsel’s informal motion to continue whether the request is submitted on behalf of the Defendant, one or both of the nonparty witnesses, or some combination of those jointly represented parties,” the bar owners’ lawyers wrote Friday. “However, it is apparent that the request is not motivated by a legitimate need for additional time to respond.”

“Rather, it appears to be more likely motivated by a desire to shield former Governor Cooper, who is currently running for elected office, and perhaps also former Secretary Cohen, from having to provide testimony under oath regarding the reasons for their decision to deprive the Plaintiffs of their means to make a living for over a year, while allowing many similarly situated businesses to open,” the court filing continued.

“This case has already been pending for over six years,” the bar owners’ lawyers added. “Delaying the hearing on Plaintiffs’ Motion to Compel, which would in turn delay the depositions of former Gov. Cooper and former Sec. Cohen, would prejudice the Plaintiffs by even further delaying the ultimate resolution of this case.”

Bar owners led by NCBATA sued Cooper in June 2020. They challenged his executive orders forcing private bars to remain closed during the pandemic as other business reopened, including restaurants and other businesses with bars.

A trial judge dismissed the suit, but the North Carolina Supreme Court ruled in 2025 that bar owners could pursue their claims that the government-mandated shutdowns violated their state constitutional rights.

The motion to compel recapped Cooper’s role in the dispute.

“On 17 March 2020  — St. Patrick’s Day, typically the busiest day of the year for bars — Gov. Coooper issued Executive Order 118,” the court filing explained. “This order allowed limited drive-through, carry-out, and delivery operations of certain ‘permitted food establishments,’ but required the closure of Plaintiffs’ bars entirely.”

On May 20, 2020, a new Cooper executive order “permitted seven of the eight types of bars in North Carolina to re-open pursuant to guidelines,” according to the motion. “The plaintiffs were of the eighth type of bar, so they were required to remain closed.”

Eight days later, Cooper said in a media briefing “his decision to exclude Plaintiffs’ bars from Phase 2 re-opening was based on ‘data and science’ and ‘daily briefings from doctors and healthcare experts,’” the motion added.

The following day — May 29, 2020 — lawyers working the plaintiffs requested public records related to the “data and science” and the briefings. The governor “did not provide any records responsive to the request” until September 2020. “In the meantime, Gov. Cooper kept most of Plaintiffs’ bars closed in their entirety,” the motion explained.

“From 17 March 2020 through 14 May 2021 Gov. Cooper’s Executive Orders prohibited Plaintiffs’ bars from operating either entirely or on any reasonably profitable basis,” according to the motion. “The other seven types are bars were permitted to reopen and survive.”

With the case back at the trial court level this year, the bar owners issued deposition subpoenas for Cooper and Cohen on March 17. Lawyers representing Cooper, Cohen, and current Gov. Josh Stein took issue with the subpoenas.

They “did not allow a reasonable time for compliance, because the witnesses would need significant time to refresh their recollections and were not available on the designated dates” in April, according to the court filing.

“The subpoenas were unreasonable and oppressive because the deponents were ‘executives,’ who may only be deposed if they have ‘unique or special knowledge of the facts at issue’ and other less burdensome means have been exhausted,” the defendants’ lawyers argued. The subpoenas also “had not been properly served.”

The bar owners’ lawyers tried again for depositions on May 26-27. Lawyers for Cooper and Cohen responded with a letter repeating their earlier objections. The letter also argued that “[d]iscussions that Governor Cooper and Dr. Cohen may have engaged in regarding the issuance of the executive orders may be protected by the attorney-client privilege and/or deliberative process privileges.”

The defense letter “closed by inviting discussion of a resolution of the matter that would not involve former Gov. Cooper and Sec. Cohen appearing for depositions,” according to the bar owners’ motion.

Now the plaintiffs are asking Wilson to order depositions from Cooper and Cohen within 45 days of his ruling on the motion to compel.

NCBATA v. Cooper

The state Supreme Court split, 5-2, in ruling last year that bar owners working with NCBATA could proceed with their case.

“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.”

The high court tasked a trial 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,’” Riggs added. “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.”

“Judge rejects NC bar owners’ motion, 2nd case ‘successfully mediated’” was originally published on www.carolinajournal.com.