With days left in NC reopening phase, judge hears Forest’s lawsuit against Cooper
With Gov. Roy Cooper set to decide this week if North Carolina can move into the next phase of reopening, a lawsuit brought against him by Lt. Gov. Dan Forest over the governor’s COVID-19 executive orders went before a judge Tuesday.
Judge Jim Gale heard from lawyers representing Forest and Cooper, who are also running against each other for governor — Cooper, a Democrat running for a second term and Forest, a Republican, to unseat him in November. The hearing in Superior Court was held online via Webex.
Forest filed the suit in his role as lieutenant governor, claiming that the governor should have gotten agreement from a majority of the Council of State before issuing executive orders about COVID-19 restrictions, including limitations on businesses. The Council of State, in addition to Cooper and Forest, includes the attorney general, secretary of state, treasurer, agriculture commissioner, state auditor, labor commissioner, superintendent of public instruction and insurance commissioner.
Forest vs. Cooper — the lawsuit, not the election battle — hinged on interpretation of the state’s Emergency Management Act and what the state law says about the authority of the governor.
After 90 minutes of arguing each side by lawyers and questioning by Gale, the judge said that instead of giving a “horseback opinion,” he owed it to them to write a thorough opinion because of the significant public importance. He also acknowledged Cooper’s Phase Two of reopening is scheduled to expire on Friday so he said he would rule as quickly as he could.
Forest has said the lawsuit is about the process, not the orders themselves. Forest and other Republicans on the Council of State have said they want more of a say in the governor’s coronavirus response. However, Forest was not joined by other Council of State members in the lawsuit.
Steven Walker, Forest’s chief of staff and general counsel, and Ryan Park, the state solicitor general, shared different interpretations of the North Carolina Emergency Management Act. A section of the law, General Statute 166A-19.30, and subsections of it, explains authority of the governor during emergencies.
Part of the law refers to additional powers “if the Governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property,” and refers to a second part, “Power of municipalities and counties to enact ordinances to deal with states of emergency.” In that section, authorities can regulate businesses and alcohol.
Walker noted that even one of Cooper’s decisions for which he requested Council of State concurrence, his executive order on March 17 closing bars and ending restaurant dine-in service, was announced before the concurrence request.
That order also mentions the authority of the state health director to use quarantine and isolation.
Gale said the current law gives the governor and the General Assembly the authority to declare a statewide emergency.
“Ultimately if the governor was going rogue, just beyond the pale of reason, he would be subject to have his authority stricken by the legislature. Is that correct?” Gale asked Walker. Walker responded it could also be checked by Superior Court.
Questioned about use of quarantine and isolation authority, Park, who is part of the state Department of Justice, said that it was “simply a mistake” to include that in the order and that it was written early in the emergency, in March.
Park also said that Cooper wanted broad-based support early in the emergency, when he sought more support from the Council of State.
Gale did not give a date for his ruling to come.
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This story was originally published August 4, 2020 at 5:08 PM.
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