Check out the North Carolina Court of Appeals opinion in North Carolina Bar and Tavern Ass'n v. Cooper, No. COA22-725 (Apr. 16, 2024).
We're not going to go into great detail, mostly because this one tracks the most common judicial approach to takings challenges to business shut-down orders during the Co-19 period. The court concluded that the State's selective shut down of certain bars but not others was neither an "emergency commandeering" under North Carolina's emergency response statute, not a physical, Lucas, or Penn Central taking. Read the opinion for the reasons why.
But there is more than one way to skin that cat. The court held that the trial court should not have rejected the plaintiff's motion for summary judgment on its North Carolina's Fruits of Labor Clause claim.
That provision states:
We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.
N.C. Const. art. I, § 1.
The court held that the State's invocation that its treatment of the plaintiffs was backed by "data and science" was not enough. A government action violates the Fruits of Labor Clause if it bears "no rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare." Slip op. at 24.
In other words, "if the restrictions are arbitrary and unreasonable." Id. But unlike those situations where a court is reviewing governmental action under the rational basis test where the mere invocation of "science" is usually enough to satisfy the test, under the Fruits of Labor Clause that science has to be kinda good science. See slip op. at 27 ("Although we view the evidence in the light most favorable to Defendant for purposes of summary judgment, we must also review the scientific evidence that was before the trial court, which acts in its capacity as the gatekeeper of expert testimony, to determine whether it is sufficiently reliable.").
Check it out.
North Carolina Bar and Tavern Ass'n v. Cooper, No. COA22-725 (N.C. App. Apr. 16, 2024)
