Constitutional – Sovereign Immunity – Bar Closures – State of Emergency – COVID-19

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The plaintiff-bar owners allege defendants violated their constitutional right to earn a living when the defendant-governor ordered their bars to close during the COVID-19 pandemic. Plaintiffs have stated direct claims under the N.C. Constitution for which they have no other adequate state remedy. Consequently, the doctrine of sovereign immunity does not bar plaintiffs’ claims.

We affirm the trial court’s denial of defendants’ motions to dismiss.

The doctrine of sovereign immunity shall not operate to deprive North Carolinians of an opportunity to redress alleged constitutional violations. In the absence of an adequate state remedy, one whose constitutional rights have been abridged has a direct claim against the state under our state constitution.

Among a list of inalienable rights, our constitution includes “the enjoyment of the fruits of their own labor,” and our Declaration of Rights says no one shall be deprived of his property “but by the law of the land.”

The thrust of the fruits of labor clause is that the state may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. Where, as here, the complaint alleges that the blanket prohibition—rather than regulation—of an entire economic sector violates one’s right to earn a living, that complaint states a colorable constitutional claim.

With respect to the law of the land clause, plaintiffs have a fundamental right to earn a living from the operation of their respective bar businesses. Accordingly, plaintiffs’ allegations that the executive orders violated their right to earn a living sufficiently pleaded a constitutional claim under the law of the land clause.

Finally, plaintiffs pleaded they do not have an adequate state remedy: “The Emergency Management Act under which the Defendants are operating does not provide for a plain, speedy, or adequate remedy at law. The [plaintiffs] therefore do not have an adequate state remedy.” We agree there is no other adequate state remedy now that any claim for injunction is moot as the executive orders are no longer in effect. Accordingly, we conclude plaintiffs adequately pleaded lack of an adequate state remedy.

Plaintiffs have stated claims directly under our state constitution, so defendants are not entitled to sovereign immunity.

Affirmed.

Dissent

(Arrowood, J.) The right to work and to earn a livelihood is a property right that cannot be taken away except under the police power of the state in the paramount public interest for reasons of health, safety, morals, or public welfare. As the majority recognizes, this right cannot be curtailed under the guise of protecting the public interest; however, the government can interfere with business operations as long as it is not done so arbitrarily and does not impose unusual and unnecessary restrictions upon lawful occupations.

The majority states that they did not recognize the governor’s statutory authority under the State of Emergency statute because “the constitutionality of those statutes has yet to be determined[,]” given that plaintiffs challenges to those statutes remain pending before a three-judge panel. Yet, this court must assume that acts of the General Assembly are constitutional and within its legislative power until and unless the contrary clearly appears. By ignoring the presumption of constitutionality, the majority sidesteps the rational basis analysis, which is necessary to determine whether the actions complained of were appropriate and therefore whether the plaintiffs’ claims were colorable.

Because there is no question that issuing the executive orders was rationally related to a legitimate government purpose—here, combatting the spread of the COVID-19 virus and protecting the public’s health and safety—the governor’s action under the statute clearly satisfies the rational basis standard. Certainly, orders to combat a virus and protect the health and safety of the public during a pandemic cannot be considered arbitrary. Therefore, the complaint did not state a colorable claim.

Furthermore, curtailing the ability of our governor to issue executive orders during a state of emergency sets a deadly precedent that will prove to have grave consequences in the future.

Howell v. Cooper (Lawyers Weekly No. 011-158-23, 23 pp.) (April Wood, J.) (John Arrowood, J., dissenting) Appealed from Carteret County Superior Court (Joshua Willey, J.) S. C. Kitchen for plaintiffs; Matthew Tulchin and Michael Wood for defendants. North Carolina Court of Appeals