Publisher's note: This post appears here courtesy of the Carolina Journal, and written by CJ Staff.
Gov. Roy Cooper is approaching the COVID-19 emergency with a "heavy hand," claiming "unlimited authority" over North Carolinians' freedom of movement. That's according to the latest court filing
in a lawsuit pitting Cooper against the lieutenant governor.
The Forest v. Cooper suit involves the two major-party candidates in the 2020 N.C. governor's election. A Superior Court Judge is scheduled to hear arguments in the case Tuesday, Aug. 4.
Republican Lt. Gov. Dan Forest filed his latest arguments in the case two days after the Democratic governor characterized Forest's lawsuit
as "divorced from the reality of the COVID-19 emergency."
Forest responds to key arguments from Cooper, along with two questions raised in an earlier hearing before Superior Court Judge James Gale.
Cooper "falsely characterizes" Forest's complaint and "incorrectly states" the action Forest seeks from the courts, according to the lieutenant governor's brief. Rather than stopping Cooper from taking action to address COVID-19's impact, Forest instead wants the governor to clear his plans with the 10-member elected Council of State. The state Emergency Management Act requires that coordination, Forest argues.
"The Lieutenant Governor is asking the Court to instruct the Governor to simply follow the law,"
Forest argues. "The Lieutenant Governor does not seek to have the Court do anything but uphold the rule of law in relation to the Emergency Management Act."
Cooper "falsely claims" that Forest does not view COVID-19 as a statewide emergency. "[T]o suggest that the Lieutenant Governor would be ignorant of the fact that COVID-19 has impacted the state as a whole strains credulity,"
Forest responds. "The Governor's assertion here is so blatant, it would be a stretch to call it incorrect rather than simply false."
After responding to Cooper's arguments, Forest tackles the judge's questions. First, the lieutenant governor assigns "little significance" to a phrase in the Emergency Management Act that discusses "the Governor's discretion." That phrase relates to a portion of the act that has no bearing on Cooper's response to COVID-19, Forest contends.
The lieutenant governor's brief devotes much more space to addressing the judge's second question. Gale asked for information about the legislature's intent when it wrote both the Emergency Management Act and laws dealing with quarantines and isolation.
Going back to 1951, Forest finds a history of legislative checks on the governor's power. "A common theme that runs through the ancestors to the current Emergency Management Act is that the Council of State would play a vital and necessary role in emergency management."
In more recent history, a 2004 law designed to respond to a possible SARS pandemic offers more useful clues, according to Forest's brief. Lawmakers assumed a response to SARS would include quarantines.
"[T]he legislature understood that this was a serious deprivation of liberty, and made sure that no one person could make that decision, allowing for judicial review if requested immediately, and judicial pre-approval before lengthy quarantine and isolation orders were entered."
That law was written "to provide the balance between the need to prevent the spread of a contagious disease and the liberty of the people while providing the due process required to make a quarantine and isolation order equitable."
Forest contrasts the 2004 SARS debate to Cooper's unilateral orders today. "Governor Cooper's actions and his arguments disregard even the slightest scintilla of balance,"
according to the lieutenant governor's brief. "Instead he rests on these scales of equity the heavy hand of a Governor who claims to have unlimited authority over the freedom of movement of 10.5 million North Carolinians — totally disregarding even the slightest check on his perceived unlimited power by the Superior Court or the Council of State."