(The Center Square) – Bar owners suing North Carolina’s governor will get another chance in court.
In a state appellate court filing Tuesday, justices ruled an appeals court should hear the question of whether it was constitutional when Gov. Roy Cooper used the state Emergency Management Act to justify shutting down their businesses. The case is Tiffany Howell; et al., v. Roy Cooper III, in his official capacity as governor.
Part of the litigation was already headed for a three-judge panel. In Tuesday’s 2-1 majority, Judge April Wood wrote, “Plaintiffs’ complaint alleged causes of action under N.C. Const. art. 1, §§ 1, 19, regarding North Carolinians’ right to ‘the enjoyment of the fruits of their own labor’ and to substantive due process under ‘the law of the land.’ We hold sovereign immunity does not bar Plaintiffs’ claims and Plaintiffs state colorable constitutional claims.”
The word colorable, as used here, means something has enough strength for court.
For clarity, the justices did not opine on whether the COVID-19 pandemic justified Cooper’s actions; rather, that a court can determine that.
Judge Fred Gore was with Wood in the majority; Judge John Arrowood dissented. In his dissent, Arrowood acknowledged the constitutional rights upon which the plaintiffs’ case is based. He also wrote that “though highly important and fiercely protected,” those rights “are not impenetrable.”
Cooper declared a state of emergency in March 2020 for North Carolina that lasted 888 days. He followed with a series of executive orders that shuttered not only businesses but also houses of faith and schools.
His orders, made alongside then-Secretary of Health and Human Services Dr. Mandy Cohen, at various times included prohibiting gatherings both indoors and outdoors. At Thanksgiving in 2020, he didn’t issue an order but did request other families follow his lead and not gather for the traditional holiday.
