John Locke Update / Research Brief

Time to amend the Emergency Management Act, Part Three

posted on in COVID-19 Series, Government Reform, Law & Regulation, Legal Update, Rights & Regulation
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  • A new lawsuit challenges Gov. Roy Cooper’s arbitrary and unfair lockdown orders against private bars
  • The lawsuit shows Cooper’s actions have been discriminatory and unconstitutional, but also that the Emergency Management Act violates the nondelegation doctrine
  • The EMA should be amended to fix these issues rather than leave individuals having to file a lawsuit every time a governor abuses his power under the EMA

Two recent lawsuits challenging Gov. Roy Cooper’s COVID-19 lockdown orders highlight the extent to which the Emergency Management Act (EMA) delegates too much power to the executive branch and provides too little in the way of legislative oversight. In a previous installment in this series, I discussed Forest v. Cooper, a lawsuit that highlights an ambiguity in the EMA that Cooper has exploited to impose sweeping, statewide lockdowns without Council of State concurrence. In this installment I will discuss Waldron v. Cooper, a recently filed lawsuit that highlights some additional problems with the EMA in its current form.

The plaintiff in the new suit, Crystal Waldron, owns and operates Club 519, a private bar that has been serving its members in Greenville, NC, for more than 18 years. With the help of the Pacific Legal Foundation, Ms. Waldron is fighting back against an arbitrary and unfair lockdown order that threatens to put her—and thousands of other bar owners across the state—permanently out of business.

Ms. Waldron’s attorneys, Jessica Thompson and Anastasia Boden, filed her complaint in Wake County Superior Court a few days before Christmas, and just last week they filed a motion for a preliminary injunction that would allow Ms. Waldron and other private bar owners to reopen under reasonable safety protocols.

The complaint itself is extremely well-drafted, and it makes a compelling case. It begins with a series of factual allegations about Cooper’s arbitrary and inconsistent treatment of various kinds of bars. It notes, for example, that:

while the Phase 3 Order and related guidance allows bars in restaurants, eating establishments, wineries, distilleries, breweries, taprooms, brewpubs, cideries, meaderies, private clubs, bottle shops, and wine shops to serve alcohol both outdoors and indoors with capacity restrictions, it prohibits private bars from serving any patrons indoors.

And that:

Even outdoor operations are severely restricted for private bars compared to the restrictions on every other establishment that serves alcohol onsite. In fact, for most private bars, the strict restrictions on outdoor service mean staying closed entirely.

Why are private bars being singled out for harsher treatment? According to the complaint, the answer is simple — economic favoritism:

There is no evidence that private bars cannot or will not abide by the same safety standards as other entities that are currently permitted to operate indoors. And 9 months into the pandemic, Governor Cooper possesses no evidence that private bars, when operating under the safety standards currently applied to other establishments, present a higher risk of transmission of COVID-19. The only explanation for Governor Cooper’s unequal treatment of private bars is his favoritism towards the other entities, his belief that they have a higher economic importance, and those entities’ relative lobbying power.

In the first counts, the complaint asserts that Cooper’s arbitrary and unjustified discrimination against private bar owners violates the EMA itself, which states that, “State and local governmental bodies and other organizations and personnel who carry out emergency management functions are required to do so in an equitable and impartial manner.”

In the second and third counts, the complaint asserts that the discrimination violates Sections 1 and 19 of Article I of the North Carolina State Constitution, which declare that no one may be deprived of “the enjoyment of the fruits of their labor” without due process and that no one may be denied “the equal protection of the laws.”

Clearly Ms. Waldron is in the right on all three of these counts. As the complaint points out, no matter how deferential a standard one chooses to apply, Cooper’s discriminatory treatment of private bar owners is clearly illegal because it is based, not on reliable evidence showing that private bars cannot operate safely under the standards that apply to other bars, but on the fact that the latter attract more tourists, employ more people, and generate more revenue than the former.

Discriminatory treatment by the governor, but also constitutional problems with the EMA

It is should be noted that, as far as these first three counts are concerned, the problem isn’t the EMA itself; it’s the discriminatory way Cooper has applied it. In fact, the first count actually highlights one of the good things about the Act; namely, the way it explicitly requires that emergency measures be applied in a fair and even-handed way.

The last two counts, on the other hand, do point to problems with the EMA — problems that can only be solved by amending the act.

In Count 4, Waldron complains that by continuing to extend his emergency declaration and his lockdown orders month after month, and by vetoing the General Assembly’s attempts to reign him in, Cooper has been violating Article I, Section 6 of the North Carolina Constitution, which states, “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from one another.”

In Count 5, Waldron complains that the Emergency Management Act violates what is known as the “nondelegation doctrine.” It cites a landmark case in which the North Carolina Supreme Court held that, in the North Carolina Constitution,

the people … conferred their legislative power upon the General Assembly. This power may not be transferred to another officer or agency without the establishment of such standards for his or its guidance so as to retain in its own hands the supreme legislative power.

Waldron argues, correctly, that in its present form the EMA violates this principle by delegating too much power and providing too little guidance:

The EMA provides the Governor with unilateral authority to determine what constitutes a state of emergency, declare that a state of emergency exists, and determine when such a state of emergency should end, without any standards or guidance from the General Assembly.

Waldron’s analysis is surely correct with respect to Counts 4 and 5, and she should prevail on both counts. That said, individual plaintiffs should not have to reassert such claims on an individual basis every time a governor abuses the powers delegated to him under the EMA.

Instead, we need to amend the EMA to:

  • provide more and better guidance about what constitutes an emergency
  • provide more and better guidance about what standards apply when governors and other authorities exercise their emergency powers
  • impose more and stricter checks on the exercise of those powers
  • ensure that the General Assembly retains the power to rescind its grants of emergency powers in part or in full if it finds those powers are being abused

Waldron’s lawsuit, like Forest’s (which he unfortunately abandoned without waiting for a determination on the merits), highlights multiple ways in which North Carolina’s Emergency Management Act is deficient. Next week, in the fourth and final installment in this series, I’ll suggest specific ways to amend the EMA to address those deficiencies.

For the rest of this series, see:

For more information, see:

 

 

Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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