Bar owners across North Carolina challenge shutdown, seek ruling against key Emergency Management Act provision

By Carolina Journal Staff

Raleigh, NC – Bar owners from six counties across North Carolina are going to court to challenge the governor’s executive orders shutting down their businesses. Their lawsuit seeks to have a key piece of the state Emergency Management Act declared unconstitutional.

bar sigange
Photo by Artūras Kokorevas

The suit filed in Carteret County Superior Court arrives the day after a similar complaint filed on behalf of a Greenville bar. Plaintiffs in the new suit own and operate bars in Guilford, Forsyth, New Hanover, Buncombe, and Wake counties, in addition to Carteret.

“The Governor has been issuing his Executive Orders since last March with no checks or balances,” said Chuck Kitchen, the Raleigh-based attorney representing more than a dozen individuals and businesses. “The Plaintiffs’ argument is that the Governor cannot unilaterally make what has the effect of law without the procedural check of the Council of State. Otherwise, the Legislature should be passing laws relating to the pandemic.”

One piece of the 14-page complaint calls for a three-judge panel to determine that a portion of the state Emergency Management Act is unconstitutional. Gov. Roy Cooper has relied on that portion — officially General Statute § 166A-19.30(c) — to bypass the Council of State when exercising his emergency powers during the COVID-19 pandemic.

That piece of the Emergency Management Act gives the governor authority to step in and take action normally delegated to local governments. Cooper can step in when he determines “that local control of the emergency is insufficient to assure adequate protection for lives and property.”

The lawsuit spells out a constitutional problem. “The Governor’s actions are in his discretion and not accompanied by adequate guiding standards to govern the exercise of the delegated powers by the chief executive,” according to the complaint. “Further, there are no procedural safeguards to control the Governor’s actions in his use of Executive Orders pursuant to N.C. Gen. Stat. § 166A-19.30(c).”

That provision thus “represents an abdication of the authority of the General Assembly to make laws and is in violation of the Separation of Powers Clause of the North Carolina Constitution.”

“This statute allows the Governor to exercise the power of cities and counties in issuing his executive orders, including the Executive Orders which have kept bars closed,” Kitchen said in a news release. “Without this authority, all the Governor’s Executive Orders would have to be approved by the Council of State.”

The council comprises the 10 statewide elected executive branch officials in North Carolina. Republicans now outnumber Cooper and his fellow Democrats 6-4 on the council. This means Cooper’s COVID-19 executive orders would require some degree of bipartisan support.

The suit also contends another section of the Emergency Management Act — N.C. Gen. Stat. § 166A-19.30(b)(2) — has been applied unconstitutionally against bar owners and operators.

That section “provides that municipalities and counties, and in this case Defendant Cooper, have the authority to prohibit the operation of business establishments and therefore to prohibit individuals from earning a living,” according to the complaint.

“The General Assembly does not possess the authority to prohibit the right of individuals to earn a living,” the lawsuit continues. “It therefore cannot give that right to municipalities and counties, and in this case to the Governor.”

The suit asks a court to declare that piece of the Emergency Management Act unconstitutional as applied to the plaintiffs and their bars. All executive orders keeping bars closed would be struck down.

Cooper’s executive orders have kept N.C. bars shut down since March 17.