The attorney who sued last week in federal court on behalf of six non-resident Dare County property owners who have been prohibited from entering the county since March 19 expects to file a motion for preliminary injunction this week.

Attorney S.C. (Chuck) Kitchen of Kitchen & Turrentine, PLLC in Raleigh told The Beacon this afternoon that he plans to file a motion for what is known as a “PI” this week and that it will be up to the judge to set a hearing date. He would not speculate on when the hearing might be scheduled.

Mr. Kitchen filed the nonresidents’ complaint in Bailey et al v. County of Dare, N.C., in the U.S. District Court for the Eastern District of North Carolina on April 7.

The complaint alleges that Dare County’s March 19 decision to bar entry by non-resident property owners during the COVID-19 emergency violates the plaintiffs’ constitutional rights as guaranteed by the Privileges and Immunities Clause in Art. IV, sec. 2, clause 1, of the U.S. Constitution.

The case has been assigned to U.S. District Court Judge Louise W. Flanagan, Mr. Kitchen said. Judge Flanagan, 57, was appointed to the federal bench in 2003 by President George W. Bush. She is located in New Bern.

Mr. Kitchen said he has not been contacted by a representative of Dare County since he filed the lawsuit last Tuesday.

Dare County will have an opportunity to respond to the PI motion and its accompanying brief before a hearing on the merits.

A preliminary injunction is not a temporary restraining order (TRO), which a court may issue on an expedited basis—and even “ex parte,” meaning one-sided, without hearing from the defendant—in order to prevent immediate irreparable harm from occurring to the moving party before a decision on the case merits is made.

In elaborating upon the constitutional rights violated, the complaint cites the plaintiffs’ right “to travel, to engage in a common calling or occupation, and to obtain medical treatment.” The “common calling” alleged in the complaint is that of renting property.

Plaintiffs John P. Bailey, a resident of South Carolina; E. Thompson Brown, a Virginia resident; and Todd A. and Babette S. Edgar, a married couple from Maryland, will be “unable to prepare their [rental] properties for the spring and summer rental season if they are unable to enter Dare County,” according to the complaint.

The Edgars own an oceanfront home in Southern Shores, as well as two rental homes in Duck.

Plaintiffs Paul and Sheryl Michael of Virginia allegedly use their Dare County property as a second home. Mr. Brown also has a property that he uses as a second home.

You may access the complaint in Bailey v. County of Dare here: file:///C:/Users/Annsj/Pictures/BaileyvDare.pdf.

The plaintiffs seek relief in the form of a declaratory judgment from the court stating that Dare County’s entry prohibition is unconstitutional as applied to them and preliminary and permanent injunctions against Dare County that would prevent it from enforcing the prohibition. They also seek nominal damages and attorneys’ fees.

Another claim raised by the complaint challenges the means and authority by which Dare County enacted the entry restriction. The plaintiffs claim that N.C. law requires the county to adopt an ordinance before it can impose prohibitions and restrictions in an emergency.

According to the American Bar Assn., the test applied by a court in evaluating a motion for a preliminary injunction is generally four-factored: “1) that he or she is likely to succeed on the merits of his claims; 2) that he or she is likely to suffer irreparable harm without preliminary relief; 3) the balance of equities between the parties support an injunction; and 4) the injunction is in the public interest.” (“Irreparable harm” is a big hurdle.)

See ABA: https://www.americanbar.org/groups/litigation/committees/woman-advocate/practice/2018/preliminary-injuction-relief/

During the COVID-19 emergency, individual judges of the U.S. District Court for the Eastern District of North Carolina are permitted to hold in-person hearings and proceedings, but they are encouraged by a standing order issued March 18 by Chief Judge Terrence Boyle to conduct such hearings by telephone or video.

See http://www.nced.uscourts.gov/data/StandingOrders/20-S0-5.pdf


 In today’s Emergency Management bulletin, Dare County announces that nine of the 15 people who have tested positive locally for COVID-19 have recovered or have been asymptomatically cleared—an increase of one person over yesterday’s update.

The County also calls the social-distancing measures of the past three weeks “effective” and thanks all residents for “doing [their] part to help keep our community safe.”

Today’s message is simple: “Please continue to hang in there.”

See Bulletin No. 41 at https://www.darenc.com/Home/Components/News/News/6127/398


The Beacon also would like to note that a violation of the mandatory restrictions that the Governor has imposed on retail establishments, as of 5 p.m. today, and skilled nursing facilities is a Class 2 misdemeanor, punishable by up to 60 days in jail and $1,000. We earlier omitted this detail.

Please let us know about your shopping experiences this week:  You may email ssbeaconeditor@gmail.com.

Ann G. Sjoerdsma, 4/13/20


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