Judge hears case in lawsuit against Gov. Cooper over COVID-19 executive orders

Coronavirus

RALEIGH, N.C. (WNCN) – A judge said Tuesday he planned to rule “as quickly as” he can following a hearing in the case Lt. Gov. Dan Forest (R) brought against Gov. Roy Cooper (D) over several of the governor’s executive orders tied to COVID-19.  

Forest filed a lawsuit last month saying Cooper needed to obtain concurrence from the Council of State to issue his orders that closed various businesses and then structured the reopening process. Forest is also running against Cooper in this year’s gubernatorial race. 

“These protections have been important, and we see the results. We have been able to stop the increase and stabilize our numbers,” Cooper said Tuesday. 

Ryan Park, an attorney representing Cooper, said the governor cited a provision in the Emergency Management Act that allows him to act on his own without seeking concurrence from the council. 

The Council of State is comprised of the 10 statewide elected officials and is made up of six Republicans and four Democrats, including Forest and Cooper. 

“There are redundancies built into the statute,” Park said, adding that in an emergency the General Assembly has determined the governor should be in charge of the response. 

He cited a provision in the law that gives the governor the authority to act “if the governor determines that local control of the emergency is insufficient to assure adequate protection for lives and property.”  

Steven Walker, an attorney representing Forest, said there was an “inconsistency” in how the governor issued his executive orders, saying local control was not sufficient while simultaneously allowing local governments to enact more strict regulations than what the governor put in place. 

Forest’s office did not reply to a request for an interview Tuesday by CBS 17. When Forest filed the lawsuit he said it was about trying “to uphold the rule of law.” 

“When the governor is delegated power, it is not absolute,” Forest said at the time. “There’s nothing politically expedient about suing the governor. It doesn’t politically work in your favor.” 

Forest is trailing Cooper by about 10 points in the RealClealPolitics average of recent polling in the governor’s race.  

UNC-Chapel Hill law professor Rick Su said the lawsuit is “a reflection of the fact that state government is split politically.” 

“It seems that there were substantial powers that were delegated to (Cooper) that would not require, as Forest thinks, the approval or the consensus of the Council of State,” Su said. “I think there is strong argument in this case that Cooper seems to be justified under that specific provision that he is invoking.” 

Su said if Judge James Gale were to rule in Forest’s favor, he could do so in such a way that the executive orders would not be voided right away. Instead, there would be time for the governor to seek concurrence from the Council of State on new orders. 

Gale also indicated it’s likely no matter how he rules, that decision will be appealed. 

The state’s current phase two reopening order is scheduled to run out on Friday. Cooper said he plans to announce the next steps for that at a news conference Wednesday. 

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