Here's the latest court order telling business and property owners that they have little chance of success on the claims asserted in various mostly-constitutional challenges to shut-down orders.
This time the businesses are in North Carolina, and appear to be -- ahem -- so-called "gentlemen's clubs" (and by that, we're not referencing those in St. James's), which asserted a host of constitutional claims (including takings), and sought immediate relief.
Today, in this order, the district court denied a preliminary injunction (having denied a TRO last week). The main relief sought is an injunction. The entire order is worth reading, even though it doesn't focus on the takings question. Applying rational basis review, the court concluded that cases like Jacobson show that the governor's orders "pass[] this deferential test, where it imposes temporary restrictions on businesses to prevent the spread of COVID-19[.]" Slip op. at 19. Allowing some businesses to open but requiring others to close is at least "conceivably" based on the differences between the businesses and although "imperfect," does not mean that it violates the constitution. Besides, the court concluded, restaurants (allowed to open) are more "important to the community as a whole" than adult entertainment clubs. Slip op. at 21.
What does the order say about takings? This:
Likewise, plaintiffs are unlikely to prevail on their claim under the Takings Clause. See Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2176 (2019) (“As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government’s action effecting a taking.”).
Slip op. at 24. In short, no injunction when you can seek compensation.
Next up, we're guessing: the governor's motion for summary judgment, which will be granted.
Order, Talleywhacker, Inc. v. Cooper, No. 5:20-CV-218-FL (E.D.N.C. June 8, 2020)
