By John Trump
Carolina Journal News Service
RALEIGH — A Greenville bar owner’s lawsuit challenging the state Emergency Management Act is heading to a three-judge panel. The panel will decide whether the act is unconstitutional because of the power it grants to Gov. Roy Cooper.
Superior Court Judge James Gale issued a two-page order Friday, March 26, to transfer the Waldron v. Cooper case from his court to the three-judge panel. Plaintiff Crystal Waldron co-owns Club 519 in Greenville.
“After over a year of unilateral executive micromanagement dictating the closing of businesses and the conditions of reopening, we look forward to judicial review of the governor’s constitutional authority,” said Jessica Thompson, the plaintiffs’ attorney. Thompson works for the Pacific Legal Foundation. “We’re grateful that Crystal Waldron and Club 519 will have the opportunity to present the constitutional deficiencies of the Emergency Management Act to the three-judge panel.”
Gale also added the leaders of the N.C. House and Senate as defendants in the case. That means House Speaker Tim Moore, R-Cleveland, and Senate leader Phil Berger, R-Rockingham, will have a chance to participate in the lawsuit moving forward.
“The sole claim in the Amended Complaint is a facial challenge as to the constitutionality of provisions of the North Carolina Emergency Management Act,” Gale wrote. “The Motion to Dismiss likewise presents that sole issue. There is no other pending issue which can be addressed without resolving the facial constitutional issue.”
A “facial” challenge means the lawsuit targets the constitutionality of a law itself, not just an unconstitutional application of the law to a plaintiff. In this case, that means Waldron challenges the Emergency Management Act, not just the way Cooper used the act to keep Waldron’s bar closed for much of the past year.
State law dictates that all cases involving facial challenges must be heard by three-judge panels. State Supreme Court Chief Justice Paul Newby will oversee appointment of a panel to hear the case.
Waldron had not mentioned either Moore or Berger in her lawsuit. But the state’s Rules of Civil Procedure mandate that both of them, “as agents of the State through the General Assembly, must be joined as defendants in any civil action challenging the validity of a North Carolina statute or provision of the North Carolina Constitution under State or federal law,” Gale wrote.
Since the plaintiff had not sued legislative leaders, and they hadn’t asked to intervene in the case, “the court addresses their absence ex mero motu,” Gale wrote. That means Gale decided on his own to add Moore and Berger “as necessary parties.”
Thompson signaled earlier this month that her client would shift the focus of her lawsuit to challenge the Emergency Management Act on its face.
The lawsuit filed before Christmas originally had focused on Cooper’s executive orders shutting down Club 519’s business operations. At the time of the suit, Cooper’s orders had forced the Greenville bar and private bars across the state to remain closed for roughly nine months.
Court documents filed March 5 explained why Waldron was turning her attention away from Cooper’s specific orders and challenging the Emergency Management Act instead. Cooper had used the EMA as the basis for his shutdown orders.
Waldron’s amended lawsuit contends that the state Emergency Management Act violates the “nondelegation doctrine,” which forbids the General Assembly from delegating its legislative powers to the governor or any agency.
“The biggest issue in this case has always been Gov. Cooper’s illegitimate use of legislative powers during the pandemic,” Thompson said. “Even though Club 519 can reopen, there’s nothing to stop Gov. Cooper from once again shutting the business down. The governor is overstepping his constitutional role by making laws, something the state’s constitution clearly leaves to the legislature. A year into the pandemic, it’s now long past the time to return to a constitutional system of government.”