Publisher's note: This post appears here courtesy of the Carolina Journal, and written by CJ Staff.
A lawsuit pitting the two major-party contenders in North Carolina's governor's race will head to a court hearing Aug. 4.
Superior Court Judge James Gale set that hearing date
in Forest v. Cooper. In the suit
, Republican Lt. Gov. Dan Forest challenges the process Democratic Gov. Roy Cooper has used in issuing executive orders linked to the COVID-19 pandemic.
Cooper must file his response to Forest's suit by noon Wednesday, July 29. Forest will be able to submit additional material by 5 p.m. Friday, July 31. The 2 p.m. Aug. 4 hearing in the case will take place via videoconference.
Forest's July 1 complaint argues that the governor failed to follow the proper procedure in issuing executive orders shutting down major sectors of the N.C. economy.
"This action is about the rule of law. That the chief executive must follow the law is as old as the idea of the rule of law itself. The legal maxims rex legi subjectus est (the king is subject to the law) and lex non a rege est violanda (the law is not to be violated by the king) makes this principle absolutely clear."
Forest cites seven coronavirus-related executive orders Cooper issued as "shutdown orders" that didn't get approval from the Council of State. The council's concurrence is required under the state Emergency Management Act, according to Forest's suit.
Forest also says the quarantine and isolation aspects of the orders should have fallen under the powers of state health director Dr. Mandy Cohen rather than the governor. But if the governor used the health director's powers, he should be constrained by the law — which says any quarantine or isolation order "shall not exceed 30 days." Extending such an order beyond 30 days requires the approval of a Superior Court judge, and Cooper hasn't asked for that approval or gotten it, the filing says.
The lawsuit wants a judge to end the emergency orders and refuse to allow any new ones unless they receive the backing of a majority of the Council of State.
"[Forest] certainly does have a cause of action here,"
said Jon Guze
, director of legal studies at the John Locke Foundation. "I think it's a good thing he's filed this suit. I've been very unhappy with the way the governor has handled all of these executive orders, going all the way back to March."