The Forbidden Fruit: North Carolina Court of Appeals Affirms Right to Earn a Living
In a time that the United States Supreme Court is poised to reduce, rather than maintain or expand, the scope of civil liberties protected by the United States Constitution, the North Carolina Constitution remains a veritable Garden of Eden for new developments in the field of civil rights litigation.
Unlike the United States Constitution, or any other state constitution in the United States, the North Carolina Constitution has a declaration of rights which protects a unique civil liberty: the right of citizens to “enjoy the fruits of their own labor.” Enacted at a time when formerly enslaved people were first able to work for themselves, the “Fruits of Labor Clause,” as it is commonly known, protects the rights of North Carolina citizens to pursue their chosen profession free from unreasonable governmental interference.
At first, the Fruits of Labor clause did not receive much traction. Over the twentieth century, however, North Carolina courts began applying this provision to the State’s professional licensing powers. These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.
Within the past decade, the North Carolina Supreme Court has extended application of the Fruits of Labor clause beyond licensing restrictions to other state actions that interfere with one’s right to earn a livelihood. For instance, in King v. Town of Chapel Hill, the Supreme Court held that Chapel Hill’s ordinance capping towing fees was arbitrary and violated tow truck drivers’ rights to enjoy the fruits of their labor. In Tully v. City of Wilmington, the Supreme Court held that Wilmington’s police department violated a public employee’s constitutional right to enjoy the fruits of his own labor when it failed to follow its own promotion procedures. Last year, in Mole v. City of Durham, the Court of Appeals expanded the Fruits of Labor clause once more and held that the City of Durham violated an employee’s constitutional rights by terminating him without first following the procedures outlined in the City’s policies.
Last month, the Court of Appeals again affirmed that the State is forbidden from encroaching on citizens’ rights to enjoy the fruits of their labor. The case, involving Ace Speedway in Altamahaw, North Carolina, opens new doors for citizens to challenge unreasonable government action.
On May 20, 2020, Governor Cooper issued an executive order prohibiting all outdoor gatherings of more than 25 people. The order had the effect of shutting down Ace Speedway’s operations. The racetrack owners, however, were undeterred. Jason Turner, the racetrack’s owner, told the press:
“[U]nless they can barricade the road, I’m going to [race.] The racing community wants to race. They’re sick and tired of the politics. People are not scared of something that ain’t killing nobody. It may kill .03 percent, but we deal with more than that every day, and I’m not buying it no more.”
Ace Speedway kept its word, and racing resumed on May 23, 2020. The Governor’s office requested that the Alamance County Sheriff, Terry Johnson, put an end to the races, but Sheriff Johnson publicly stated that he would not enforce the Governor’s executive order. The North Carolina Department of Health and Human Services then intervened.
Even though Ace Speedway installed plexiglass and six-feet distance markers, utilized contact tracing and touchless thermometers, and established screening booths – all in consultation with local health officials – DHHS filed a complaint and motion for temporary restraining order seeking to enjoin Ace Speedway from holding any further races on the basis that Ace Speedway was an “imminent hazard” to public health. DHHS’ motion was granted. Ace Speedway then filed a counterclaim against DHHS, including a claim alleging that DHHS violated Ace’s right to enjoy the fruits of its labor by prohibiting it from conducting any business. The trial court denied DHHS’ motion to dismiss.
On appeal, DHHS argued that the factual data surrounding COVID-19 during the first half of 2020 “unequivocally” supported its decisions to shut down Ace Speedway’s operations. The Court of Appeals disagreed. Instead, the Court reasoned that Ace Speedway’s counterclaim successfully pled a “novel” claim for intrusion on its right to earn a living.
The Court explained that, at trial, the facts may show that Ace Speedway’s precautionary measures were sufficient to combat the spread of COVID-19 within an open-air racetrack. The Court held that a jury could find that it was “unreasonable” for DHHS to label Ace an “imminent hazard” to public health and shut down its operations.
Expanding the Fruits of Labor clause outside the employee-employer context, the Court of Appeals stated that the core principle behind the Fruits of Labor Clause is that the government “‘may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.’” It naturally follows, the Court explained, “that actions taken by other non-legislative state actors, whether elected officials or unelected bureaucrats, may run afoul of a citizen’s right to the fruits of his own labor when they arbitrarily interfere with occupations, professions, or the operation of business.” In light of this holding, North Carolinians can assert a Fruits of Labor claim anytime the government “arbitrarily interferes” with their occupation, profession, or ability to operate a business.
Nearly every time the Court of Appeals or Supreme Court have analyzed the Fruits of Labor Clause, its unique protections have been affirmed. Kinsley is no exception. While federal courts are set to narrow the scope of protections afforded by the Bill of Rights, North Carolina’s Constitution is “fertile ground” for independent state constitutional interpretation.
Attorneys in North Carolina should prepare themselves to litigate novel issues arising under the North Carolina Constitution, including the Fruits of Labor clause. As Justice James G. Exum, Jr. argued, “North Carolina lawyers have an obligation to be conversant with the North Carolina Constitution and to urge upon the courts consideration of its provisions in the resolution of issues to which they pertain.” Id. In the years to come, North Carolinians can expect new and important developments in the field of state constitutional law.