by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Lt. Gov. Dan Forest’s fight with Gov. Roy Cooper will shift back from the courtroom to the campaign trail. Forest has dropped his lawsuit challenging Cooper’s “shutdown orders” linked to COVID-19.
State Attorney General Josh tweeted the news. “Late last night, LG Forest dropped his lawsuit against Gov. Cooper, deciding against appealing the Court’s decision. Therefore, Gov. Cooper’s executive orders protecting the health and safety of NCians stand.”
Breaking Update: Late last night, LG Forest dropped his lawsuit against Gov. Cooper, deciding against appealing the Court’s decision. Therefore, Gov. Cooper’s executive orders protecting the health and safety of NCians stand.
— Josh Stein (@JoshStein_) August 13, 2020
Forest, a Republican, is challenging the Democrat Cooper in this fall’s governor’s race.
The lieutenant governor’s decision to drop the Forest v. Cooper lawsuit came one day after a trial judge refused to grant a preliminary injunction in the case.
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. …
… 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. …
… 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.’”