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Cooper wins key ruling in COVID-19 legal fight with Forest

By Gary D. Robertson, Associated Press

North Carolina Gov. Roy Cooper won another legal victory defending his COVID-19 executive orders on Tuesday, this time when a judge rejected Lt. Gov. Dan Forest’s demand that they be blocked by declaring his lawsuit is unlikely to succeed.

The Republican lieutenant governor sued Cooper last month, alleging the Democrat’s orders limiting business activities and mass gatherings and mandating face coverings were unlawful because he failed to first get support from the Council of State. The 10-member council includes both of them, Attorney General Josh Stein and other statewide elected officials.

Cooper’s state attorneys argued in a vitrual hearing last week that the governor acted properly under portions of the Emergency Management Act that don’t require the concurrence of the council. They said the law lets him act unilaterally when he determines local governments are unable to respond effectively in the emergency. Forest counters that Cooper can only act in a limited area without the council’s concurrence.

In denying Forest’s request for a preliminary injunction, Judge Jim Gale wrote that the lieutenant governor hasn’t demonstrated he’s likely to win arguments that Cooper has exceeded his authority or that the law is unconstitutional.

“The court finds no statutory language upon which it can base the limitation the lieutenant governor invites — to confine the governor’s exercise of power …. to only a local or regional area,” Gale wrote. “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.'”

Cooper and Forest are running for governor this fall.

Forest has criticized portions of Cooper’s response to the coronavirus, such as business closings and setting options for public school reopenings. But the lieutenant governor has said the lawsuit is only about the governor complying with what the law requires before he acts.

Forest said in a news release that since Gale ruled “Cooper has 100% of the power during a declared emergency,” then the governor also “has 100% of the responsibility” for the results. They include permanently closed businesses, poor handling of nursing home outbreaks and deficient outcomes for students, he said.

“Ultimately, the people of North Carolina will make the final decision in November,” Forest said.

Cooper has said his actions have been based on science and health data, and that Forest’s legal actions, if successful, could worsen case and hospitalization numbers that have recently stabilized or improved.

“Gov. Cooper has taken decisive action with health and safety measures to save lives,” spokesperson Dory MacMillan wrote in an email. “State officials should lead by example and work to protect North Carolinians instead of putting people’s health at risk.”

While most people who contract the coronavirus recover after suffering only mild to moderate symptoms, it can be deadly for older patients and those with other health problems.

Cooper and the state Department of Justice has had a high-winning percentage in court defending Cooper’s more expansive COVID-19 executive orders since they were first initiated in mid-March. Several industries and entities have sued. In May, a federal judge did strike down church attendance limits that the governor set. In a separate case, Gale last month allowed several dozen bowling alleys to reopen, but the state Supreme Court blocked its enforcement while the justices review his decision.

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