By Rick Henderson
Carolina Journal News Service
RALEIGH — A Superior Court judge has rejected Lt. Gov. Dan Forest’s attempt to throw out some of Gov. Roy Cooper’s executive orders linked to COVID-19. But the same judge is allowing the case to move forward.
“[T]he Court concludes that the Lieutenant Governor has failed to demonstrate that he is likely to succeed on any claims for relief stated in his complaint,” Judge James Gale wrote in his 31-page order rejecting Forest’s request for a preliminary injunction against Cooper.
Gale has not ruled on Cooper’s request to dismiss the complaint.
The Forest v. Cooper case challenged eight executive orders linked to COVID-19. The suit labeled them the “shutdown orders.” The lieutenant governor argued that Cooper should have submitted those orders to the 10-member Council of State for consultation and concurrence. Forest also argued that the governor violated state law limiting the government’s powers to enact a quarantine lasting longer than 30 days. A longer quarantine requires court approval, according to Forest’s argument.
Much of the dispute hinges on provisions of the state Emergency Management Act. One section of the act allows Cooper to assume certain emergency powers “with the concurrence of the Council of State.” “The EMA does not define what constitutes ‘concurrence’ or any procedure by which such concurrence must be obtained,” Gale notes.
The next section of the Emergency Management Act gives the governor additional powers to be exercised “in his discretion” if he determines that “local control of the emergency is insufficient to protect lives and property,” according to Gale’s order.
Forest and Cooper disagree about which section of the act empowered the governor to issue his “shutdown orders.” The lieutenant governor argues that statewide orders all should be based on the part of the law that requires Council of State concurrence.
Gale rejected a key piece of Forest’s argument. “The Lieutenant Governor argues that the Executive Orders are internally inconsistent in their findings that local government action is insufficient yet recognizing that some local authorities may be required to impose restrictions greater than those in the Executive Orders,” Gale writes. “The Court does not find these determinations to be inconsistent, but rather consistent with imposing a necessary ‘floor’ to be applied statewide, while leaving more restrictive requirements to those areas where the pandemic’s affect [sic] and risk of spread is more severe.”
The judge also found “no statutory language” supporting another key Forest argument. The lawsuit argues that Cooper’s power to act without the Council of State should be confined “to only a local or regional area.”
“The language requires the opposite conclusion by suggesting that the Governor must act beyond the confines of the local jurisdiction when ‘the scale of the emergency is so great that it exceeds the capability of local authorities to cope with it.’”
In addressing Forest’s concerns about constitutional separation of powers, Gale cites the potential for oversight from the legislative branch. “[A]ny power under the Emergency Management Act, whether exercised by the Governor or the Council of State remains subject to legislative oversight by the General Assembly,” the judge writes.
Gale rejects all arguments linked to alleged violations of state quarantine laws. “The Court accepts the Governor’s narrower construction that the Executive Orders do not impose a ‘quarantine,’ as the Executive Orders do not order the isolation of persons who have been infected and present a risk of spreading the virus.”
The judge puts off a decision on another argument Cooper presented against Forest’s suit. The governor had argued that the lieutenant governor lacks legal standing to file the complaint. Gale indicates a final decision about standing would depend on “further briefing and argument” linked to Cooper’s motion to dismiss the case.