By Rick Henderson
Carolina Journal News Service
RALEIGH — Gov. Roy Cooper contends a lawsuit challenging his COVID-19 executive orders stands “no chance of success.” That statement crops up in the first paragraph of Cooper’s official response to the lawsuit from Lt. Gov. Dan Forest.
A hearing in Forest v. Cooper is scheduled for Tuesday, Aug. 4. The case pits the two major-party candidates in North Carolina’s 2020 governor’s race. Forest seeks a temporary restraining order blocking several executive orders from Cooper.
“In this action, the lieutenant governor, suing in his capacity as a single member of the 10-member North Carolina Council of State, asks the court to bar the governor from taking emergency measures that are necessary to help protect the people of North Carolina from the most serious public-health crisis that this state has faced in over a century,” according to Cooper’s 53-page legal brief. “This request fails at the threshold because the lieutenant governor’s claims stand no chance of success on the merits.”
The governor disputes Forest’s argument that the case challenges the process used in developing COVID-19 executive orders, rather than the orders’ substance. “That characterization contrasts with the relief the lieutenant governor seeks: the invalidation of numerous public health measures that the governor has issued to combat the spread of COVID-19.”
Cooper doesn’t stop there. “The lieutenant governor’s claim that this lawsuit is not a challenge to the governor’s policy choices also rings hollow in light of the lieutenant governor’s repeated criticism of the governor’s public health measures,” according to the brief. “For example, he has criticized the governor’s decision to prohibit people from gathering at bars and nightclubs. And he has repeatedly objected to the governor’s order requiring many people to wear face coverings in public spaces.”
Criticism of a political rival continues. “Like his criticisms of the governor’s public health measures, the lieutenant governor’s request that this court invalidate these measures is divorced from the reality of the COVID-19 emergency that North Carolina faces,” Cooper’s brief contends. “The lieutenant governor suggests in his complaint, for instance, that the emergency caused by this pandemic has not “spread across local jurisdictional boundaries.” … This assertion has no basis in reality. The pandemic has rapidly spread to every corner of the state.”
Forest’s legal team can respond to Cooper’s brief by Friday, July 31. Superior Court Judge James Gale is scheduled to hold a videoconference hearing in the case next week.
Forest’s July 1 complaint contends the governor failed to follow the proper procedure in issuing executive orders shutting down major sectors of the N.C. economy.
“This action is about the rule of law. That the chief executive must follow the law is as old as the idea of the rule of law itself. The legal maxims rex legi subjectus est (the king is subject to the law) and lex non a rege est violanda (the law is not to be violated by the king) makes this principle absolutely clear.”
Forest cites seven coronavirus-related executive orders Cooper issued as “shutdown orders” that didn’t get approval from the Council of State. The council’s concurrence is required under the state Emergency Management Act, according to Forest’s suit.
Forest also says the quarantine and isolation aspects of the orders should have fallen under the powers of state health director Dr. Mandy Cohen rather than the governor. But if the governor used the health director’s powers, he should be constrained by the law — which says any quarantine or isolation order “shall not exceed 30 days.” Extending such an order beyond 30 days requires the approval of a Superior Court judge, and Cooper hasn’t asked for that approval or gotten it, the filing says.
The lawsuit asks a judge to end the emergency orders and refuse to allow any new ones unless they receive the backing of a majority of the Council of State.