NC Supreme Court hears arguments from group pushing to reopen bowling alleys
The Supreme Court of North Carolina hears arguments from the Bowling Proprietors Association of the Carolinas, which is pushing for Gov. Roy Cooper to reopen bowling alleys in the state.
branches of government to make and not for courts. The court emphasized that courts are institutionally ill suited to judge whether a particular public health measure is appropriate. His courts merely quote, construe and apply the law. They do not set policy. And if people wish to re balance the often difficult tradeoffs between protecting against the grave public health hazard and economic activity, they have the power to elect new politicals that leaders there will do so for as the U. S. Supreme Court famously held in Jacobsen, First of Massachusetts, setting this court's own decision in hey quote, courts and Juries are not the proper arbiters of public health policies. And it would quote usurped the functions of another branch of government if a court were to a judge that the mode adopted to protect the people from the deadly disease was arbitrary. And you are arguing, Are you arguing that the power of the governor is the same as that of the Legislature? In other words, I believe the case itchy site was legislative authority, not the unilateral action of a governor. If you are arguing that the governor has the same authority and his actions should be reviewed with the way that we look at, Ah, an act of the General Assembly. How long are you arguing that that power would last? I think, Your honor. So there are two parts that question So on the first part, absolutely not. We are not asking for the level of deference that would be accorded to for the governor's unilateral actions that would be accorded to the legislative enactment. But here the governor has not relied on his inherent constitutional authority. He's relying on the delegated authority from the Legislature in the Emergency Management Act, and that's the exact same situation that the court was presented with. And, hey, it was a delegated grant of authority to a local government from the General Assembly. And the court held that as long as that legislative delegation was valid than the same level of difference is afforded to the body exercises, delegated authority and and so on. That first question, you know, if this were if if the governor were acting outside the bounds of his statue authority, we can see this would be a very different case. But that's not on the directional issue, which is very important. I would say that if you look at the emergency imagine act, the Legislature may be considered decision to give the governor the unilateral authority determine when an emergency has ceased. So that's in section 19 and 20 of the Emergency Management Act, and and and there's a very reasonable reason for that on. That's because many emergencies, like a pandemic, will last for a long time. So if there were a nuclear meltdown 20 miles south of here, there's a nuclear reactor in in Wake County. If there were a nuclear meltdown, the emergency that that would spark with last for a long time, far longer than six months. And so I think the Legislature made a very reasonable determination that it's not going to set a time limit on the this extension delegated what? What? It apart. What's the difference then, between the standard of review, Africa ble in an emergency situation and the ordinary standard review go debated it leak in your briefs. So I think that it's not entirely clear in this court's cases, because the emergency doesn't this kind of arrival with what you put your best guesses, what you think it is now and how they're different. They're basically trying to pick. That is what is the standard? I know you're making a two part argument when I went under the standard we think applies in emergencies in second. Yeah, well, in case you clothe regular one, I'm just trying to figure out what? Yes, exactly. Right. And I think that the best reviewed of the cases is that a no additional layer of deference is applied with standard of review. Ordinarily, might be. So. I think this South Bay decision from the U. S. Supreme Court is instructive. So, you know, the there is obviously a free exercise test that applies generally in complains of that kind. It was just freedom case, but the court did. Is it added an extra layer of deference when applying that test. So we say that the rational basis test applies to the underlying claims here. And I think the, uh, what happens during a public health emergency is that what is considered rational is given an extra degree of latitude. And so, you know, in times of uncertainty, for example, right now standing here before you today, there is no consensus on how deadly this disease is on whether how it spreads, even whether if you're infected and then you cover if you could have long term health outcomes or you're gonna have immunity and for how long you're gonna have immunity. So incontinence context of such extreme uncertainty. Then there's an extra layer of deference that's added to measuring whether the governor's actions a rational if the if the if the regular tests. And I mean that we had all the patients in the margin with different decision howling crazy, it appears to be a fair, reasonable relationship, an important purpose. The work necessary shows up a couple of times, sometimes AdWords irrational. But that appears to be the basic formulation. If you were to formulate a test applicable in an emergency situation, what is it? So I would say that you take the existing claim, which we think is rational basis, and then you add difference on it. So the court's evaluation of what is rational has toe have an additional layer of deference. And so, you know, if you read all these cases and there a lot of them, there are a lot of different fact specific applications of what the court considers rational and in an emergency, the court has to say, you know, we have have to have an even stronger presumption that the emergency measure at issue was reasonable on and did not. Yesterday is open bowling. Folks here appear not to question the authority of the governor. This is an equal protection, uh, claim. Uh, would you agree that let's say you had to restaurants side by side that the governor can't open one restaurant and yet close the adjacent restaurant? The governor can't be arbitrary with regard, Teoh that you would agree with that witness that, uh well, so it's difficult in a hypothetical scenario. And I apologize, Your Honor, because I'm not a public health expert. If there were, uh, meaning everything is a everything is a I mean, I'm trying to figure out the how far you think that this deference should go. So I've got you know, my hypothetical Everything is equal. Other than the governor picks one restaurant that can open, but the other one cannot. I think that if you're talking about similar littering situated entities like different restaurants, Yeah. If the governor said, you know, every restaurant with an odd numbered address, it must close. That would be our picture, I think, under understanding any standard. Well, it seems to me that the business court has said that the governor failed to present any evidence which distinguishes the bowling alleys from, say, indoor swimming or some of the other activities that the governor has authorized that could be open. Uh, what evidence that was presented to the trial court, Do you believe was overlooked were mischaracterized by the trial court, uh, in determining that the bowling alleys were treated differently than other similarly situated businesses. Do you think, your honor, and agree? There's a lot of confusion in the record on this point, and I I'm here to answer the question. So the, uh, I think the baseline assumption off the trial court's order was that the problem? The proposal of safety protocols by an industry association, you know, Lawrence a different level of scrutiny. But I think the critical factual errors in that is that, you know, safety protocol. There's no venue in the state of North Carolina in most of the country that is allowed to operate without safety protocols of equivalent kind. That is the baseline minimum. A presumption upon which the public health authorities are allowing a certain venues high risk Ben used to open. And so, of course, when the face to order came out or when Secretary Cohen issued her declaration, that was the comparator was the weather Bowling alleys bars. Gyms would be safe are sufficiently safe at that time in the pandemic toe open with safety protocols and in face to there are extensive safety protocols that are applied to restaurants. And so you know, the the her declaration where she talked about pools. And she said, You know, pools are relatively more safe because there's a bathing chlorinated water. Chlorine is an impact, incredibly powerful disinfectant. It's the active ingredient in bleach, and so, you know, we think using our common sense public health expertise that that's relatively safer then bowling alleys. And that was in the and again, the comparison in that secretary corn Cohen was working against was bowling alleys under extensive safety protocols. Do you agree with the trial court that wants the bowling alleys presented, uh, their extensive safety protocols that the governor needed to respond to those protocols to indicate how they were deficient. So, Your Honor, there's a legal response and a factual response, and the answer on both perspectives is now. So, uh, from a factual perspective, it's the same response I had earlier, which is the Secretary Cohen's the governor. Cooper's analysis off those protocols had already taken place the face to order, and Secretary Cohen's declaration through mate pages with exhibits on it, specifically said that under protocols that are equivalent to what has been proposed and you know, my understanding is that their evaluation of bowling alleys and similar indoor entertainment venues, uh, would involve greater safety protocols and what they propose. Those were already concept at that point. But as a legal matter, I think that that's simply not how rational basis review works. So we're back to the question of you know, what is the standard of review for things that you lived before you over dramatic. For me, it seems to me this is one of the West we need to think about. Is it your contention that it making that the court should require or should hold that the governor, in evaluating in determining economy, why restrictions off chill is permitted to look at sectors of the economy or hiss the governor required to focus on each specific industry. I don't think that the fruits of the labor clause requires the governor to take either approach. I think he has discretion to take the approach that his public health experts advise is most appropriate. And, you know, I think one thing just to keep in mind in the background is of corpse. Every industry that is subject to restrictions has proposed safety protocols. You know, for example, in the tally whacker cases in federal court. But the adult dancing industry submitted protocols that were very extensive, more expensive than bowling associations, protocols. And the court and the governor all agreed that those were not sufficient at this point in the pandemic to allow for the additional risk that would entail if adult dancing establishments wrote what I mean. One of the things I've been thinking about is the indie. It changed in the trial or order essentially focuses. A bowling alley is right. I gather they were referred to the bullet centers and how probably usually interchangeable oh require. You have to look at everything on its proper shoulder. Looks at bowling alleys will bully bowling centers in isolation, read well of the war. I agree without reading in the order. Uh, what to what experience? You interpret drought towards order to say that each specific industry, if that industry comes forward and is is a set of voluntary restrictions. Oh, what is your understanding of what drop, which requires go do it. My understanding is that if you know, advising a client reading that order, I think you would have to say that based on what the trial court believes are similarly situated entities. If there are, there are a set of standard safety protocols that could be adapted to any setting that if those protocols are proposed, then they're presumptively valid. And I think this really highlights the that the mistake, the institutional relative, lack of capacity that courts have to manage these kinds of issues. I mean, the governor is advised by more than 40 public health experts who are working full time. Is there people with PhDs and public health? They're medical doctors, and they are looking at the economy as a whole, trying to mitigate aggregate risk. And so they're thinking about public schools. They're thinking about restaurants. They're thinking about entertainment, been used and they're thinking about. How can we keep risk under a certain level where we don't overtax hospitals where we don't have rapid surges, infections that lead to unmitigated spread of the virus on? And that's a fundamentally policy making enterprise. It's not one that supports that look at case by case. Here's bowling alleys, trampoline parks. Here's bars on. You know, I'm gonna look at this one industry in isolation. It's simply not how public health policy is made. Is a governor in implementing a statue like when that we have here and consider his or her view of the societal benefit with each particular industry or each particular segment? And yet so why? Why on I think that this is again where I think that deference would kick in. I think that a court wouldn't be, I think, within its it's laying Teoh you construe and apply the law. If it determined that you know what I think that bowling based on you know a declaration that was submitted to me is more valuable than trampoline parks. And so I will allow bowling alleys. Don't not trampoline parks. I think that's a quintessential e policy decision on DSO the governor. As Aziz said, You know repeatedly in public that his priority is opening up the public schools for in person classroom instruction, allowing that to happen. And so you know, he made a choice. Do it continue more stringent restrictions on entertainment centers to try to allow the best chance for that to happen. And I think that had a dimmer switch approach and deciding which sectors of society are higher priority. That was for the governor to make enough courts from a presidential standpoint for this course purposes. Are you relying more on our decision and state versus Dobyns in terms of the governor's exercise of the emergency powers of the governor? Or relying more on poor Richard's as a decision that this court has made concerning the operation by the governor outside of emergency powers but based upon business considerations or some hybrid of both of them? So I think both of them, your honor, I think the best way to toe look at how the emergency standard and the ordinary standard of review interact, is it it's It's kind of like a standard review, clear convincing evidence, reasonable suspicion that filters through on underlying ultimate inquiry so, uh, you know, here. You know, as I was discussing with Justice Urban, I think that you're looking first at the poor Richard Standard. Is it rational? And then you had a heightened level of deference because it is an emergency situation. And, you know, I think most public health observers agree that this is not just any emergency. It is an existential emergency that hasn't reason in our country and over 100 years on, and so that an extra layer of difference even beyond, you know, a one, a riot that might happen in the city over a period of a couple days. It is the moment the bottom association looks added, actually on the reverse side of that coin and says that there should be less deference given under these circumstances and that the reasonable relationship test that the trial court applied should be the one that we look to for guidance. Why doesn't that type of analysis work? So I think the fundamental problem with that analysis is it placed the burden on the governor to come up with evidence to show why the Bowling Associates and proposed protocols were not as safe as you know or do not satisfy the government's interests. And that is simply not how rational basis works. In case after case, this court has said, and poor Richard itself is that the state is not required to come forward with evidence, it said. You know, if facts are necessary to render uneconomic regulation valid, the court will presume the existence of those fax if they're reasonable. That is directly from reporter Richards. And so I think it's really a matter of who has to prove, uh, that the measure was valid or invalid. Is it the governor or is it the Bowling Association? And I think that's the critical problem with lower courts analysis, so many of our cases and many of the ones who rely on our regulatory actions or regulatory with regard industries as opposed to a complete shutdown. Should we look at things differently when there is a fundamental right, uh, to the fruits of your own labor? And yet the governor's action is not regulating. It is a complete shutdown of that segments s. So I think I would quibble with the premise of the question, and here I think we'll get the same plane, which is that these are temporary measures and so they're not a complete shutdown. There are cases where, yes, what temporary to find that for me is that a year? Is that two years? Five years is a 10 years. What is temporary there? I mean, the order that we are discussing today, uh, last five weeks until September 11th. And I think if I may have I'd like to be able to address a knish you that has been hovering over these proceedings but never explicitly briefed. Which is that at some point, you know, I hope very soon we all hope very soon that the public health metrics allow the governor and his public health experts to say that the state can absorb the risk of opening bowling alleys and similar facilities. And I think it's likely that that will happen soon that you know, the governor yesterday, I don't know if the court saw announced that even today he's going to be announcing how the next phase of the plan is going to operate. And my understanding is that whenever we do move to the next phase, bowling alleys will be among the next trench of case of a venues that will be allowed to open. So I'm sorry, but the answer is I don't know how long it will last. I think it depends on, uh, the involving situation on. You know, there is a stable set of risk factors that bowling alleys present. But the larger question is how our state is doing generally in response to the pandemic. Sorry, if I may just follow up on what? On the point you just made about the potential for the governor to lift this order and open bowling alleys. At that point, does this appeal of the preliminary injunction become moved? So I think it potentially becomes technically moved. But the thing this court's of course movements under this court's cases eyes not jurisdictional. And the court enjoys the discretion to consider technically legal issues if the public interest so demands on just a couple months ago, as I'm sure the court is aware in the job is case, the court articulated a very helpful rubric for analyzing questions of this kind on. You know, the first is is this something that is subject to great public debate. I think we'd all agree that this might be one of the defining issues of the pandemic and that the pandemic response is the greatest public policy issue that were at least facing anxious moment. So I think it easily, you know, meet that standard. The second is, you know, whether this is capable of repetition or it's, you know, And the answer is, of course it is. Um, you know, I am. I do not have full insight into the phase reopening plan, but at the next phase, some restrictions will certainly continue on businesses if made, perhaps not, bowling alleys. And, uh, we're managing, you know, almost 20 cases from various business entities raising similar claims, and many of those claims will survive. And so I think it's incumbent upon this court just to for the public interest to delineate the proper line between policy making and judicial review. In this situation, it's going to recur again. And and I guess the final point, I would say, is that even as plight bowling alleys, that if conditions require, you know the governor is not like the ordinary situation where ah, government government actor moves a case by drawing a challenge policy. We're not saying that, you know we agree this is a problem? Constitutionally. Or that we're not going to reimpose it Were actually saying the opposite that we pledged to reimpose if it's necessary to reduce the spread of infections. Mr. Park, I'm sorry. I'm sorry to interrupt, but I've got a quick question. You said that the key for the court is to delineate the line between policy making in the exercise of the governor's discretion. How would you articulate where the state thinks that are? The governor believes that line should deepwater. How we describe that is that it does seem to be Kenya. Yes, if I were to describe it in one sentence via follows that during a public health emergency, the the policy making branches of government can enact policies that are reasonable and that the measure of reasonableness is accorded do, uh, due deference. And that would be That would be the standard that we think applies here. I mean, I'd like to reserve the remains. Oh, it started going here. No, that's OK. Go ahead. Okay. You'd be committed to reserve the rest of your time, Mr Part? Yes. Yes, Your Honor. Thank you. Mister Biller. Mr. Miller, you're on me. I believe I've now been a muted Thank you, Your honors. Good morning. My name is Anthony Bill ERM, a member of the Wake County Bar and through my client, the Bowling Proprietors Association of the Carolinas. And George, I represent the interest of 75 North Carolina bowling centers, their employees and the many working families that frequent these establishments, some of which establishments are old and some of which are new. All of lanes are closely held. Some of them are brand new state of the art family friendly entertainment centers involving investors from around the country to include at least one multimillion dollar center that was under construction and has not yet been allowed to open. Some of my clients are multigenerational family affairs or owners operate lanes built by the grand parents many decades ago and where the owners eat or around their dinner table each night in train their Children how to operate cash registers and clean equipment. Rounder. Thousands of North Carolinians are tuned into today's hearings in this court's decision. This decision affects the livelihoods and families of thousands of North Carolinians. Cove in 19 was contracted in the United States of first diagnosed in Washington state in January of this year. Nine months ago, Governor Cooper declared a state of emergency in March 10 2020 175 days ago. He still rules unilaterally under powers, he claims, pursuant to the Emergency Mind Management Act. 162 days ago, Governor Roy Cooper ordered most industries closed in order North Carolinians to stay in their homes. And since then, Governor Cooper's lifted his general ban on North Carolinians, leaving their homes, and he has lifted his ban on most industries. Today, Governor Cooper has drawn lines to allow North Carolinians to get tattoos to send their Children to overnight indoor camps at the Y M C A. To drink beer indoors at breweries, heated indoor restaurants to play intense basketball games and youth soccer matches to gag a gate and indoor food halls to engage in mass protests to enjoy social lower at the Raleigh Country Club. Governor Cooper does not, however, a lot of North Carolinian bowling signers to open the lines. My clients have been deprived of their livelihoods for going on six months regards of how one feels about Cove in 19 there is not a single study associating bowling with Cove in 19 outbreaks, despite bowling taking place continually without interruption this year in at least seven states. And despite dozens of other states resuming bowling since May, there is not even a single reported anecdote of bolding associated with any outbreak cluster. There has not been a single opinion rendered in this case or otherwise. Why my clients Cove in 1962 standards promulgated in May of this year and found in the records that pages 38 through 54 are in any way deficient for protecting public safety. To the contrary, the safety of bolding has been proven in the dozens of states that permit bowling as of two different 48 other states allow bowling. Mr. Baylor, I'm sorry to interrupt you, but, um, as I understand Mr Parks argument, it is that the the relative safety issues involving bowling centers have been taken into account in the governor's exercise of his discretion to enter the order and that their presumed to be effective. Why is it that a question for the health professionals and to be analyzed under the governor's exercise of emergency destruction? I'm sorry, Your Honor, I believe you said that. Mr Park said the Bowling Association safety standards have been taken into account if they have. And I don't doubt that, Mr Parks integrity. There is nothing whatsoever in the record reflecting that in fact, the uh, the governor's attorney was actually asked repeatedly by Judge Gayle what distinguishes these bowling centers operated pursuant to these safety standards from other establishments, such as brewery tap rooms, that the governor allows the operate, and repeatedly the governor had no answer. So, your honor, respectfully, if there has been an assessment of those standards and why those standards justify distinguishing bowling alleys from operations that are out to operate, those have not been shared with my client, nor with the trial cord. Well, my, my understanding and I could be misunderstanding my argument, but my understanding is that Mr Park cited case law or the fact that the protocols air presumed, or that the that would that the mitigation is presumed to be effective. And that decision, um, is to be weighed by the governor and the exercise of his discretion. Not to be second, that it's not to be second guessed by the court unless it is beyond the appropriate exercise of that discretion. Under the appropriate standard of review, however we decide that that is, Yeah, he might. My colleague did say that, Your honor, and that is not what poor Richard says. Poor Richard says if there is no evidence to the contrary, we can treat the representations on the first prawn of the analysis as being rationally related. If in fact they are. That's what that in states, it does not state that the governor's required a come forward with no reason, which is the case we have here, or B if challenged, did you have to substantiate those? And it's important because poor Richard's we've together and culminated Ah, 100 years of this court's precedent amid poor Richard's test should be an answer. I believe it was justice burdens. A question should be the test that's applicable at any time. A fundamental rights such as rights found in this case, are additional with Mr Mr Builder. Let me then we follow small craft you hear a second just so I understand if we were to accept your argument where we lined up Oh, is it mean essentially the trial court appears to have accepted. Wouldn't other with your contention before the trial. For that? Oh, the association was entitled to currency in it for safety standards. Mitigated the risk, said to be concerns and govern insecure. Coin's affidavit upended. Since the governor did not come forward with specific evidence. And and I understand you're not saying that it had to be like your data. Oh, studies looked at the governor's failure to come forward with such evidence meant that, uh, the restriction is applied to your climate was unconstitutional. I mean, is that a fair characterization, but war position in the trial court's holding? I believe it is, Your honor. It put it in a slightly different way of my colleagues said that this court should not hold the governor to a strict evidentiary test. When he draws lines regarding who he allows to conduct business and who he is order shut for six months. It's more than it's gonna let me. Well, let me let me go on a sort of second. I apologize for interrupting you, but I'm not smart enough to retain my training. Salt. Very Mom, Um, it looks to me as if the government the transports water focused solely on bowling centers as bowling is that also fair within that, Your honor, it focused only on bowling centers. Of that who's normal operations were conducted pursuant to the safety standards submitted to the trial court, which would be, in essence, the members of the association. Yes, Your Honor, are there bowling centers that don't belong to the association? There are. There are some yesterday into the trap for disorder they allow in the trial court's border effectively adopts the meat of the association's safety protocols. So any bowling center, regardless of whether they were a member of my client's association, not abided by those safety protocols would quality to operate it. And it's a it is a very detailed order revenue. You've got women in time. I'm sure my probably acceptable questions and read that is every single type of business in the state entitled to Short claimed that you every single business in this yes, you're on Every single business in this state is entitled to assert it's a fundamental right to enjoy the fruits of its labors in every single business, just like every individual in this state as the fundamental right to equal protection under our Constitution, said that, in essence, tell me what I'm concerned about. It's just a practicality trial. Cool that being wired to anyone lies in the street by end its base. It's not even a segment. Some of the some of the five things tend to categorize. Your plan actually, is a horrible, broader category of entertainment centers for you. I don't read the tropical disorder is addressing entertainment centers with broader category rather, boat, with acceptance of the approach adopted in trial. Hold, Supporter effectively require Judge Gail or somebody like that to review safety protocols for every industry? I don't think so. Not not not going on. Well, excellent into parts, your Honor. Judge Gail did not second guess the governor's on critique of those safety standards. He simply asked the governor, What is wrong with these sick to standards? Now, if you look to the parallel place where he tried to just wish, in fact did distinguish why the government will love beer bars to operate but regular bars to not operate, he asked the same question, and in that case, the governor came forward and have antic total evidence of outbreak clusters around bars. In fact, they filed the same evidence. And in our case, as if you look at the evidence that Secretary Cohen appended to her declaration, it's predominantly. There's weighted very heavily towards the evidence of outbreak clusters associates associated with bars and in per opinion Secretary Cohen said. I think the special norms within bars are different than the started. The social norms in beer bars and the social distance see are less likely to be observed in a regular bar, then in a brewery tap room and Judge Gayle said, Trash that makes sense motions pipe Now that the problem, we have your Your honor, nobody has required the governor to slice up. Look, years is in this economy. The problem is, when it ever met comes forward in this case, the governor acting pursuant to an emergency power accident after all the municipalities in all the counties of the state and he decides to slice up the meat from Manti oh to the from Murphy Toe Manti Oh, in ST all businesses this same and then start dissecting them and picking the winners and losers. That was the governor's choice, and when he's once he starts picking winners and losers in a way that fundamentally affects the rights of North Carolinians. That shuts down businesses for months at a time. The office is on the governor for demonstrating his rationale for infringing upon the fundamental rates of some North Carolinians in favor of other North Carolinians. And if he cannot do this, this court's case law is very clear. And so is the case is in the other jurisdictions. Now that the governor let me stop you, let me stop you for just a second. Do you read Boring Tavern Order as requiring the governor to carry the same burden of proof in the court as your pleasure asking? Here it is the same. It is exactly the same. In fact, Judge Gayle said, I'm adopting the same the same standard that I had in the bar versus brewery tap room case. And what authority do you think is the strongest authority? Or in case law that you just mentioned? There's case law to require the governor to satisfy a burden in a court of law in exercising his emergency powers under the moments in management. Yeah, well, I don't I don't think that our constitutional rights. The calculus for this court's assessment of fundamental rights under our Constitution changes or should change. And I don't think there's anything in precedent saying whether somebody raises the prospect of emergency or war for famine or any other exigent or or serious conditions. The calculus is the same. And I think this court did actual job in poor Richard's of laying down the two prongs that this So are you saying it does not make any difference for our purposes today whether there is an emergency horn? Of course it does. The calculus is the same. The captain has it. Have what I'm having trouble. I'm having trouble getting the distinction begin. Perhaps due to my limited mentality, if you will allow me to be happy to explain it, um, the fundamental rights don't change over time that the haze decision Justice Douglas is concurrence in there. So these are inherent, timeless, fundamental rights. The analysis of the government's interest, the hell is this court established for evaluating the deprivation? In this case, the total or long deprivation does not change. Does that mean that well, that's our version standards or emergency circumstances in places of relevant of course not. This court's decision was not, um, was not poorly thought out. If you look at poor Richard's, there are two problems. The first problem in evaluating and they go through the better part of a century worth of precedent. The first is there a proper birds, prior courts and a tree, and it is the government's purpose. Is the equal sought to be directionally Teoh, the group that's being regulated? That's the first problem. Now that pronged, the rational relationship between the group regulated and the harm socks prevented should always be asked. Now, the second problem gets I just insert your concerns Well, what was the second problem? Is this a reasonable implementation? And this is where Judge Gail nailed it. What is reasonable on Day 16 of an emergency is not necessarily the same is what is reasonable. 162 days later, reasonable. This comes up over and over again. In the Dobbins case, referred to by a Justice Morgan, the court goes well into the evidence, and it covers very quickly. Multiple constitutional statutes on statutory challenges with the inquiry is the same, though not it articulated nearly as well as a sport articulated it in poor Richard's. Is this reasonable? Is this right? Find in the cake, Mr Beller, A question for you If the association had not proposed these additional safeguards, which you concede that the governor will have the authority to require the continued closure of these bowling centers, I would concede, your honor, that Secretary Cohen would have satisfied the first wrong of the poor. Richard's analysis in Magda's. Are these regulations reasonably are they rational or proper, given the harm that sought to be prevented and way have taken issue? But I don't think it's a hill worth dying on that this disease is extremely deadly for people over 65 years of age, with the CDC said on Thursday, with a knave rich of 2.6 additional quote morbidity factors, I mean, those simply are not the people that are found in bolding legs you that would be relevant to this first one is Is this regulation what we're trying to prevent here and this is death by Koven, is there reasonably related to activities or rationally related to activities within bowling loans? If you say that the rational government, the reasonable governor, government purpose is preventing the congregation of people to slow down the spread of the disease. Then Secretary Cohen, if there were no socialist social standards in place, no covert standards in place for the association. But I think Secretary Cohen's explication of why the general nature of bowling lanes would satisfy that first one. But this court would still be some facing the second wrong. Unlike the case that my colleague has some cited, you should let me ask you a quick question. Let me ask you just a real quick question. Did poor Richard's involve the exercise of powers and emergency at? No, it did not. But what difference do you think that makes, if any, it It is a factor that needs to be weighed in on the reasonableness once we get too strong, too, in assessing the constitutional deprivation is a reasonable and what we what we find over and over again. That is, the greater the deprivation that is, the more the fundamental right is effective and poor Richard's, it's regulated. In fact, this court said in poor Richard's and setting Dobbins. This is a very modest in position on your fundamental rights in Haiti's. It was a top very inoculation to address the disease. That 30 million people are 300 million people at Talebi rate, according to hate, a 30% of of people that contracted smallpox. Is this position on your fundamental rates reasonable and the greater the imposition that is the greater of the taking away of the fundamental right. And the longer that taking away goes, the less likely we are to find cords off the holding, the the the ordinance or the declaration at play. Develop drinks would agree that the corpus of giving the governor additional powers in an emergency is to enhance his ability to act and act quickly in the event of an emergency affecting the population. It will certainly, and I think the very definition of an emergency is something that happens. Unexpectedly, influence were run free, where the courts in North Carolina have refused to entertain channels that were nine months into this epidemic, and that the act provides that there's emergency powers end when the emergency ends. But no one this court has not yet. They're not. What's before, Your Honor, we're not challenging the governor. Come here for pasties orders. Yes, You're in the right place. I just forget to start the practices. And when I first started it and somebody getting in, the only people who can see in here or those about to our Panelists positive you are right place in the year old fit. Having an audio issue you don't give. I think we're being a fed the practice session for the next the next. Thank you. Let's look back the way it is. You may continue, Mr Beller. Thank you, Your Honor. So justice sites before you two. Okay? We do have a claim. That chapter is the constitutionality of 1 66 a dish 1930. See the power to which reference as applied nine months to the emergency and seven months after going on six months after my clients have been shut down. But that's not what we're asking you today. We're not challenged. It's not a position that the emergency has ended, is it? For purposes of today's? It depends on how you define emergency. The health care Christ, the health care needs has not ended. Has the justification for the governor family gating the healthcare response for going on seven months now, is that still in emergency. The General Assembly of the Council of State have repeatedly asked the governor to allow them to do their job in response to this prices, and the governor has repeatedly vetoed that. Now I think that is a lane argument. I think that is a factor as to reasonable. There's, of course, quite often, look at Teoh Justice News earlier point Who is promulgating these rules? We give the greatest efforts of the General Assembly obligating law, vaccine their lines and in courts tend to give less to executive to the Legislature. Gave that gave the emergency authority to the government delegation. Yes, yes, yes, they have. Given that we're not asking the court for us that today, what we're after is your is your argument. Asking us to the Libyan are calculus of Ford's calculus, how severe we think a otherwise properly player emergency actually is. No, I don't think so. I think this is a much simpler case. All this court has to say is that governor of any governor comes into um the economy and starts closing down businesses under a state of emergency and starts picking winners and losers and shuts them down for months. at a time he has to be able to give a rational explanation, and it needs to be reasonably implemented. So even if you, even if they came forward and rationally tied my clients, um, operations pursuant to their safety standards to being an increased risk compared to other businesses, this court would still have to say under the circumstances on that surround us, Is it reasonable to shut down these businesses and prevent them from earning their livelihood first? Six months. The total debt for Victor if the emergency if emergency is continuing, um, how does that take into account the additional authority and deference that the Legislature gave to the governor of emergency? Um, the the devil And where do you when do you decide how long is too long at the emergency is still ongoing. Well, that that is the role of constitutional review. We see time and time again. We see it in their several cases that have been decided in the last several weeks. It was actually more of the several weeks of the Brain Baptist Church vs Cooper Maryville Baptist Church vs Machida Robinson versus the attorney general of the 11th Circuit. The Bashir out of the sixth Circuit and you see to recurring themes. And we see this continuously in this court's I'm jurors, prudence and otherwise. If you deprive a fundamental right for a prolonged period of time and by anybody's definition, 5.5 months is a prolonged period of time, toe have, ah, fundamental, right deprived. And if it's a total deprivation, this court's precedent says very clearly, you have to have a very good reason for this level of deprivation. If we were standing for you 16 days that are you saying that I'm having an emergency declaration is not a good reason. And if it is a good reason, it sounds like you're saying that at some point the court just has to say, Well, emergency or not, we're just going to say you can't have emergency measures anymore because it's been going on too long. Oh, it The longer the deprivation goes on, the higher this scrutiny. This court scrutiny must be if the deprivation that the answer you with respect to the role was stuck to the role of the courts. Are you asking the court to just decide at some point that the emergency has ended. Or, you know what we're asking you to do is to ask the governor harder questions. The longer the deprivation goes, why are brewery tap rooms with people in close proximity drinking alcohol without face masks allowed to operate but bowling with every other lives? That that wasn't? Why is it that a policy issue address to the discretion of the governor in the situation of emergency? Because fundamental rights such as equal protection and fruit of Labour's article one section one of this Constitution do not exist at the sole discretion of any one man? It is this court's duty, and we would respectfully submit a sacred duty to protect those rights. It's not something that's merely addressed at the ballot box. Mister Mister Biller to to follow a home. There is the I think you agreed earlier. Different order focused own bowling centers and only bowling centers. Is the inquiry that you suggest should be undertaken set of circumstances? Does it involved is it takes into consideration economy wide considerations, or does it happen be going on in the industry? Giants resent special persist, another entitled to take into consideration the effect of allowing relaxing restrictions on wooden business upon other business types. Oh, or to consider in some way to societal wagon. Is her opinion off the disks. It's or does everything have to be done? Individual industry? Well, I think it needs to be done on Internet in an individual basis, and I think the governor has done that with regard to the indoor restaurants, he said. I want to keep restaurants open, and here's my, ah, justification for keeping them open and closing bowling lanes. And then this court can decide under the circumstances, if that's reasonable, the beauty of poor Richard's is. It gives courts flexibilities to address the true fax in front of it. It's it's that's not binary, it's not lockstep. But when the governor makes decisions, those picks, winners and losers there has to be a rational basis for why some are picked as the lure from winners and losers. And then the implementation of that has to be reasonable, and we see in all areas of constitutional jurisprudence, the reasonableness of constitutional deprivations changes by one. The degree of the deprivation into the duration of time is your going back to Chester's near these question with us, Mr park about similarly situated businesses. What business or businesses did you contend or similarly situated to bowling centers? In terms of this risk, it spread well. I think the risk of spread is much higher in brewery tap rooms in tattoo parlors where people are in close proximity, put punching needles into each other and why it will in indoor overnight camps where people are playing activities and close quarters for overnight, which I would assume to be is at least 12 hours. There's three, your Honor, and just you follow up tomorrow. We're a question I think you got. You can ask another question. You will get to answer it. But yesterday go. But for these procedural safeguards the clients offered to impose, would you concede that the governor has the constitutional authority to continue the closure of bowling alleys at this point in the mandible? No. And that is our second claim that as applied one, he's relying on GS, the general statute 1 66 a dish 1930 Sub Perrin, See And as we've argued in these papers and set forth in much greater detail at the trial court as the governor is applying that statute We think it's a gross violation of the North Carolina Constitution. You're on a rusty. I have 30 seconds. I have about 90 seconds for closing remarks. If you will indulge me, you make thank you. While the circumstances in this pandemic are unique, in many ways the issues of this case presents are not. Our system of constitutional liberty did away with the system that the rights of the individual must always yield to the common goods where the assertions of an elected leader. Even so, our nation's record of respect for such freedoms has been far from perfect. Not long ago, our nation faced the threat not of a pandemic but before an invasion. Exigent circumstances. After December 7th, 1941 most of America's Pacific Fleet lay at the bottom of Pearl Harbor. Thousands were dead. There were fears of a Japanese invasion of the West Coast. President Franklin Rose Vote, acting consistent with an act of Congress, issued his executive order aimed at rooting out disloyalty among our fellow Americans of Japanese ancestry. Fred Korematsu was one of them. In a now infamous decision, our Supreme Court rejected his cry for freedom. Justice Hugo Black explain similar to the arguments we here today. We cannot say that the war making branches of the government did not have ground for believing that in the critical hour such persons could not readily be isolated and separately dealt with and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. Hormats, who was a low point in our constitutional history. Mr. Butler, I thought you were sort of wrapping up your well above the, uh, 100. Uh, 90 seconds. Thank you very much. I appreciate it. Mr. Parr. Rebuttal. Thank you, Your Honor, I would like to make two quick points if I may 1st, I think on the issue of the sanitation of the safety protocols, with all due respect, I think it's a huge red herring. The safety protocols that were proposed are the same measures that Secretary Cohen considered the entire public health team considered. They consist of face tests, sanitation measures, social distancing measures, those same car before you know. Where is that? So if you look at the Secretary Collins affidavit, she discussed the sanitation protocols. She discusses why space masks can and cannot be used in certain settings. Uh, you know the entire premise. She does not say I considered the bowling associating safety protocols, but all of the factors that were considered in setting the face to policies and in Secretary Cohen's declaration with the exact same measures that were proposed here but on a broader legal point. It cannot be the case, especially under rational basis review with additional emergency deference that if any regulated entity comes to a court and says, Here is my alternative public health regulation that I like better please enter it into the court, enter it through a court order that that becomes the law. That is not how rational basis review works. It's whether the regulation and question advances the government's interests on the second issue, real quick is on the nature of this emergency. I agree there are very difficult questions about when does an emergency end, Uh, how difference is modulated based on the length of time. But here Since we filed their opening brief in this case barely a month ago, 45,000 Americans have died from this disease. We are currently in an acute emergency. The evaluation is ongoing. I think, Mr Builders, comparisons to War are very apt. That number of people is about the next game. One of people that died in battle in Vietnam over a decade. We if if deference does recede over time as the emergency subsides, this is not the moment for that to occur. And, you know, related to, you know, the aspect of bowling alleys. Uh, I think there are, you know, factual questions about who bowls in. Mr Builders demand letter to the to the to the governor and the sun. Page 75 of the record that he mentioned senior leagues is one reason why Bowling Alley should open. That is a high risk category. But even if everyone who did bowl were in low risk categories, as the seventh Circuit said in the Pritzker case, and that involved fundamental rights First Amendment right to speech and assembly, it's not just about the people who go to a meeting or protest. It's about every single person that they interact with because we are in the context of asymptomatic spread. And that's something that at the very beginning of the pandemic we were still learning that this spreads very easily on people who aren't exhibiting, uh, symptoms at this time. And so, uh, I guess in a fight, if I may I know there might be questions. I have an answer. Questions. I would just say this. It is true that Governor Cooper has embraced a more cautious approach to reopening economic activity, and that he has, as a policy matter, determined that public health is his top priority. And there are natural experiments throughout this country where different governors have taken different, a different approach. Georgia is a great comparison. Around the same time that Mr Baylor filed his complaint and many of these complaints were filed, three governor of Georgia decided to do what they had asked to disregard public health experts and to allow high risk venues like bowling alleys, bars to reopen and what we saw over the next couple of months, where thousands of additional debt, that's beyond what our state was experiencing. And the overarching question here really is who gets to make that decision what is rational in terms of the balance between protecting against additional spread of this violence and economic freedoms and economic activity, and I would submit that is the governor because these are inherently discretionary decisions. And I don't think that courts are institutionally well suited to making decisions with this guy. I think you're honest. Thank you, Mr Proctor. Mister Biller. About him, Corker, to your senses. I think you are muted. Oh, yes. Oh, yes. Oh, he has a spring for Caroline is in recess. Got, say, state and this honorable court.