Crystal Waldron and Club 519 were shuttered for almost a year due to economic favoritism. She suffered through six months of discriminatory treatment — watching former customers have drinks at her direct competitors — with no end in sight and bills piling up. Left without another option, Mrs. Waldron, co-owner of Club 519, initially sued Gov. Roy Cooper for denying her equal protection of the laws and the right to earn a living under the “fruits of their labor” clause of the North Carolina Constitution. Now, her case heads to a three-judge panel that will examine whether the governor’s powers under the Emergency Management Act (EMA) are unconstitutional.
The bar fight started last May when the governor allowed bars inside restaurants, breweries, brewpubs, wineries, bottle shops, and distilleries (to name a few) to open — indoors and outside. But “bars” like Club 519, known as “private bars” under the ABC licensing regime, were forced to stay closed. Through litigation last Summer, we learned that the governor’s rationale for opening the vast majority of bars across the state while prohibiting private bars from re-opening boiled down to economic favoritism. According to affidavits submitted from the governor’s staff in support of his decisions, breweries and wineries make a greater contribution to the state GDP compared to private bars, and the state has invested tax dollars in providing incentives to breweries and wineries to attract them to the state. Moreover, according to the governor’s staff, breweries and wineries promote tourism in North Carolina — even though the governor has advised North Carolinians to avoid travel during the state of emergency.
In February, Waldron finally had her day in Court. Judge Gale implored the governor’s counsel to justify treating private bars differently from other bars allowed to open across the state. After pointing to anecdotal evidence applied to all bars in general, the governor’s counsel conceded there was no public health or scientific evidence to distinguish private bars from bars inside breweries and wineries. The only justification was the “dimmer switch approach” that the governor claims allowed him to consider the economic impact of breweries and wineries compared to private bars.
Less than a week after the hearing, the governor announced an executive order that would allow private bars to open indoors at a limited capacity — 11 months after they were forced closed. So why is Waldron still fighting?
For one, until the governor’s executive order on May 14, private bars were still treated differently than every other type of bar operating throughout the state, and there is no scientific or public health justification for this disparate treatment. Worse, nothing prevents the governor from closing private bars tomorrow or later this year if conditions deteriorate in his opinion, while allowing the vast majority of bars — Waldron’s competitors — to continue operations. When the law can change on one man’s whim, it’s difficult to make the repairs and investments necessary to recoup some of the losses from the last year of forced closure. And it should not take a costly lawsuit to end disparate treatment of businesses based on economic favoritism. The North Carolina Constitution demands more than arbitrary rule — and North Carolinians deserve better.
Moreover, the sudden change in the treatment of private bars under the executive order follows a familiar pattern. When faced with court decisions that would potentially limit his executive authority under the EMA, the governor has altered his executive orders, as we saw in earlier COVID-19 re-opening cases involving bowling centers and gyms. For over a year, the governor has exercised unprecedented unilateral executive authority over all aspects of North Carolinians lives — this sweeping use of power cries out for judicial review.
We’re still fighting because North Carolinians deserve to know whether the North Carolina Constitution protects their individual liberty during a pandemic. Our state constitution contains an explicit separation of powers clause, which the North Carolina Supreme Court recently explained: “preserves individual liberty by safeguarding against the tyranny that may arise from the accumulation of power in one person or one body.” In addition, the North Carolina Constitution acknowledges that we are all created equal and endowed with inalienable rights — “that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
Since 1776, North Carolina has recognized the importance of economic liberty in its state constitution. That’s because economic liberty is the lifeblood of all other political liberties that we enjoy — it enables us to define our own pursuit of happiness and express other political freedoms we hold dear.
We’re still fighting because we’ve yet to hear from the North Carolina Supreme Court whether the governor’s unilateral exercise of executive authority for over a year violates the North Carolina Constitution. Crystal Waldron intends to find out.
This op-ed was originally published by Carolina Journal on May 21, 2021.