Bar Owners’ Complaints Could Play Role In Marquee NC Election

By Mitch Kokai

Roy Cooper relies on his record as North Carolina’s governor to support his campaign for US Senate.

But an ongoing lawsuit raises questions about Cooper’s resume. A judge could decide next month whether the former governor must answer questions under oath responding to complaints from dozens of bar owners.

The North Carolina Supreme Court ruled last summer that two groups of bar owners could pursue complaints related to Cooper’s COVID executive orders. Private bars remained shuttered in 2020 as other businesses reopened, including restaurants, country clubs, wineries, and other establishments serving alcohol.

The state’s highest court allowed claims that Cooper’s shutdowns potentially violated bar owners’ state constitutional rights to enjoy the “fruits of their own labor.”

One case ended through mediation earlier this year. The other, initiated by the North Carolina Bar and Tavern Association, is back before a trial judge.

Lawyers representing up to 52 bar owners want Superior Court Judge Edwin Wilson to compel deposition testimony from Cooper and his top health official.

A June 25 court filing explained why.

“On 17 March 2020 — St. Patrick’s Day, typically the busiest day of the year for bars — Gov. Coooper issued Executive Order 118,” the filing declared. “This order allowed limited drive-through, carry-out, and delivery operations of certain ‘permitted food establishments,’ but required the closure of Plaintiffs’ bars entirely.”

On May 20, 2020, a new Cooper executive order “permitted seven of the eight types of bars in North Carolina to re-open pursuant to guidelines,” according to the motion. “The plaintiffs were of the eighth type of bar, so they were required to remain closed.”

Eight days later, Cooper said in a media briefing “his decision to exclude Plaintiffs’ bars from Phase 2 re-opening was based on ‘data and science’ and ‘daily briefings from doctors and healthcare experts,’” the motion added.

The following day — May 29, 2020 — the bar owners’ lawyers requested public records related to the “data and science” and the healthcare briefings. The governor “did not provide any records responsive to the request” until September 2020. “In the meantime, Gov. Cooper kept most of Plaintiffs’ bars closed in their entirety,” the motion explained.

“From 17 March 2020 through 14 May 2021 Gov. Cooper’s Executive Orders prohibited Plaintiffs’ bars from operating either entirely or on any reasonably profitable basis,” the lawyers wrote. “The other seven types of bars were permitted to reopen and survive.”

Once the case returned to a trial judge, the bar owners sought answers from Cooper and former Health and Human Services Secretary Mandy Cohen. But state Justice Department lawyers objected on Cooper’s behalf to depositions proposed for March and May.

A letter from government lawyers suggested “[d]iscussions that Governor Cooper and Dr. Cohen may have engaged in regarding the issuance of the executive orders may be protected by the attorney-client privilege and/or deliberative process privileges.” The letter “closed by inviting discussion of a resolution of the matter that would not involve former Gov. Cooper and Sec. Cohen appearing for depositions.”

Bar owners had hoped to resolve the deposition dispute on July 7, but Justice Department lawyers requested a delay. “[I]t is apparent that the request is not motivated by a legitimate need for additional time to respond,” the plaintiffs’ lawyers argued.

“Rather, it appears to be more likely motivated by a desire to shield former Governor Cooper, who is currently running for elected office, and perhaps also former Secretary Cohen, from having to provide testimony under oath regarding the reasons for their decision to deprive the Plaintiffs of their means to make a living for over a year, while allowing many similarly situated businesses to open,” the lawyers claimed.

“This case has already been pending for over six years,” the bar owners argued. “Delaying the hearing on Plaintiffs’ Motion to Compel, which would in turn delay the depositions of former Gov. Cooper and former Sec. Cohen, would prejudice the Plaintiffs by even further delaying the ultimate resolution of this case.”

Wilson scheduled an Aug. 18 hearing to address the motion. It’s not clear whether bar owners can convince the judge that their case depends on hearing directly from the former governor. Wilson could decide that the case does not require Cooper’s testimony about factors that prompted him to keep private bars closed as other businesses reopened.

But as long as the case remains active, bar owners are reminding North Carolina voters about Cooper’s role in government-mandated COVID shutdowns. It’s an aspect of his record that’s unlikely to help him as he seeks a new job in the nation’s capital.

Mitch Kokai is senior political analyst for the John Locke Foundation.