Forest drops lawsuit over Cooper coronavirus orders after judge rules against him
Editor’s note: This story has been updated to note that Forest has since dropped his lawsuit.
Despite the claims of his Republican rival, Democratic Gov. Roy Cooper likely has the authority to keep issuing coronavirus-related orders even if other political leaders don’t sign off on them, a judge has ruled.
Republican Lt. Gov. Dan Forest, who’s running against Cooper for the governor’s office in this year’s elections, had sued Cooper over some of his executive orders. Forest said Cooper shouldn’t be able to issue the orders on his own.
Instead, he argued, Cooper should be required to get the approval of a majority of the elected officials who make up the Council of State in North Carolina’s executive branch — which has a Republican majority.
Forest asked for a court ruling to temporarily stop Cooper from issuing any more orders until the lawsuit is over. But on Tuesday in Wake County Superior Court, Judge Jim Gale dismissed that argument and said Cooper can keep issuing orders, since it doesn’t appear that Forest has a winning legal argument.
Forest could have kept pursuing his claims but chose not to. Forest dropped his lawsuit Wednesday night, said N.C. Attorney General Josh Stein, whose office represented Cooper in the case.
“Therefore, Gov. Cooper’s executive orders protecting the health and safety of (North Carolinians) stand,” Stein wrote on Twitter Thursday morning.
In a written statement Tuesday after the ruling, Forest said “if Governor Cooper has 100% of the power, then he has 100% of the responsibility.” Forest then specifically mentioned deaths at nursing homes, business closures that have led to high unemployment, and the debate over school reopening plans.
Forest tweeted his statement from his official account, then retweeted it from his campaign account, adding: “I did my part. If y’all want your freedoms back you’ll have to make your voices heard in November.”
A spokeswoman for Cooper’s political campaign, Liz Doherty, said Forest’s lawsuit was “never more than a desperate tactic to garner attention for his political campaign.”
And a spokeswoman for Cooper’s office, Dory MacMillan, said Cooper shouldn’t be criticized for taking “decisive action with health and safety measures” through his executive orders.
“State officials should lead by example and work to protect North Carolinians instead of putting people’s health at risk,” she said.
Forest previously said the lawsuit is about the process, not the orders themselves.
However, Gale wrote, Forest’s lawsuit did express “certain disagreement” with Cooper’s orders in addition to claims that they were inconsistent. Gale said his order shouldn’t be seen as a ruling on the merits or necessity of the details of Cooper’s orders, but that Cooper appeared to be acting consistently and within the bounds of the law.
He wrote that the coronavirus executive orders from Cooper have been “consistent with imposing a necessary ‘floor’ to be applied state-wide, while leaving more restrictive requirements to those areas where the pandemic’s affect and risk of spread is more severe.”
Council of State and coronavirus orders
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. Six of the 10 are Republicans, and all the seats are up for election this year.
Forest and other Republicans on the Council of State have said they want more of a say in the governor’s coronavirus response. However, no other Council of State members joined Forest in the lawsuit.
The lawsuit hinged on interpretation of the state’s Emergency Management Act and what the state law in G.S. 166A-19.30 and 19.31 says about the authority of the governor during emergencies, which includes authority over restaurants and bars.
During last week’s hearing, Steven Walker, Forest’s chief of staff and general counsel, and Ryan Park, the state solicitor general, shared different interpretations of General Statute 166A-19.30. The law 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.
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This story was originally published August 11, 2020 at 2:51 PM.
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