Lt. Gov. Dan Forest filed a lawsuit on Wednesday, July 1 against Gov. Roy Cooper in Wake County Superior Court.
According to the lawsuit, under North Carolina state law Cooper does not have the authority to take the actions he has taken – shutting down bars and restaurants and issuing the stay-at-home executive orders – without either the concurrence of the Council of State or the approval of the courts.
The lawsuit begins by saying what it isn’t. The lawsuit states, “It is important to begin with what this action is not. This action does not concern whether defendant’s [Cooper’s] actions in response to the spread of coronavirus disease 19 (COVID-19) were necessary, reasonable, wise, or driven by science, data or facts. This action concerns the manner in which these actions were taken. The manner in which defendant took these actions is in violation of law as set out in this complaint.”
According to the lawsuit, for Cooper to take statewide action such as shutting down bars and restaurants to dining-in, he needed to first have the consensus of the Council of State, which is made up of the 10 officials elected statewide in the North Carolina government.
Cooper asked for a consensus from the Council of State before he made the official announcement of the executive order closing bars and restaurants, but the vote on the Council of State was 6-4 against Cooper going forward.
The lawsuit notes that for the shutdown orders that followed, Cooper didn’t seek or obtain consensus from the Council of State.
According to the lawsuit, it appeared that Cooper, after not obtaining a consensus from the Council of State, was purportedly using the quarantine and isolation authority granted to the state health director. However, there are requirements for notification of those affected by the action as well as a requirement that to extend the period beyond 30 days the state health director has to obtain an order from the Superior Court in the county where the quarantine action is being taken.
The lawsuit states, “Despite the impact on freedom of movement the Shutdown Orders have in all 100 of North Carolina’s counties, upon information and belief, neither the State Health Director, nor the defendant [Cooper] who is purporting to exercise the State Health Director’s authority, has instituted an action in superior court in any county to obtain an extension order.”
It is clear that the lawsuit questions whether Cooper has the authority to act as the state health director.
But according to the lawsuit, either Cooper had to get consensus from the Council of State or Cooper had to get permission to extend his orders from the courts. Since Cooper did not get consensus from the Council of State or the courts, his actions were illegal.