Lt. Gov. Dan Forest says he will sue Gov. Cooper over executive orders

Gyms get double-punched; House Democrats maintain Cooper veto of reopening bill

Governor Roy Cooper speaks during a press briefing on the COVID-19 virus at the Emergency Operations Center on Monday, June 15, 2020 in Raleigh, N.C. Photo via N.C. Dept of Public Safety

RALEIGH — There were a number of strong reactions to Gov. Roy Cooper’s latest executive order which extends the phase two lockdown another three weeks and also adds a statewide mask mandate. Now, Lt. Gov. Dan Forest has announced he intends to sue Gov. Cooper for failing to uphold the law under the Emergency Management Act.

“Today I notified Gov. Cooper that, as a member of the Council of State, I will be suing his administration for violating the Emergency Management Act. The governor has repeatedly ignored the law, enacting mandates that selectively target the businesses and citizens of North Carolina without concurrence from a majority of the Council of State” Forest said in a statement.

The letter sent by Forest to Cooper can be read here.

Forest’s statement says that he officially files suit that “the Governor is required by law to approve the use of independent legal counsel.”

“State agencies in North Carolina are required to use the Attorney General’s office to file lawsuits or else get an exception from the Governor, Forest said. “As the Attorney General has been responsible for drafting the unlawful Executive Orders I’m challenging, I have decided the only path forward is with independent counsel.”

Senate Leader Phil Berger (R-Eden) sharply criticized Cooper, calling the orders inconsistent and hypocritical.

“In Roy Cooper’s North Carolina, the governor can walk with a group of protesters with no mask on, but you can’t take your son or daughter to a playground,” said Berger in his statement. “Rioters can break windows and set fires with impunity, but you can’t exercise on an elliptical machine.”

Berger’s statement continued, taking aim at the protests and mask mandate.

“We’re assured that masses of mask-less people gathered together in the streets caused no rise in cases, yet we’re now all required to wear masks because the danger is too great,” Berger said. “The inconsistencies and hypocrisy continue to eat away at the trust in and credibility of this administration.”

The N.C. Bar and Tavern Association (NCBATA) held a press conference in front of the General Assembly after the governor announced the lockdown would be extended three more weeks. In his statement, President of NCBATA Zack Medford alluded that litigation was back in play.

“The governor’s decision is effectively signing a death warrant for 1,063 bars across North Carolina while offering zero relief to the small-business owners or their employees,” said Medford.  “Asking private bar owners to lose everything they’ve worked for while their competitors can thrive is unconscionable. Enough is enough. This is an issue of fairness. It is time for the courts to decide.”

On June 4, NCBATA filed a lawsuit on behalf of 185 businesses to have private bars included under the same reopening safety rules as the reopened bars. The case had a hearing June 19 in the state’s business court but a ruling has not been issued yet. The day prior to the filing of the suit, Cooper had vetoed a bill allowing for equal treatment of restaurants and bars to operate at 50% capacity outdoors.

“The Governor’s Office has failed time and again to produce science or data proving that it’s more dangerous to have a drink in one of our bars following NCDHHS guidelines as opposed to any of the 6,000 that are currently allowed to operate,” said Medford.

The statement from NCBATA also stated that “public records requests to the Governor’s Office to obtain any specific scientific evidence used to keep private bars closed have gone unanswered.”

“Why is it safe and legal to drink until 2 a.m. at 85 percent of North Carolina bars, yet dangerous to behave the same way at a private bar?” Medford asked. “There is nothing inherently different about a private bar or its clientele than a hotel bar, brewery bar, or restaurant bar when held to the same safety guidelines.”

The North Carolina Republican Party issued a statement through Press Secretary Tim Wigginton, which criticized Cooper for leaving the decision to keep certain businesses locked down another three weeks “until the very last minute” as irresponsible. Wigginton also hit the governor for forcing businesses to be enforcers of his mask mandate.

The North Carolina Democratic Party did not issue a statement about the mask mandate or the extension of Phase 2, but instead offered a single sentence on Facebook that said, “Thank you for your leadership, Governor Roy Cooper.”

Jeanette Doran of the NC Institute for Constitutional Law echoed similar sentiments on Cooper’s enforcement of the mask mandate, calling it “seriously problematic” and saying that “Cooper is commandeering businesses’ employees to enforce his edicts.”

Adding to the governor’s extension of the phase two lockdown was a failure by the House to override Cooper’s veto of a bill that would have opened gyms and fitness centers in a manner similar to other businesses allowed to open during phase two.

The vote did not meet the two-thirds needed for the override and was directly down party lines, 66-53. All but two House Democrats voted to keep Cooper’s veto in place and gyms closed. Only Rep. Michael Wray (D-Halifax) voted with Republicans to override. Rep. Elmer Floyd (D-Cumberland) did not vote.

The veto of the gym reopening bill is Cooper’s 44th veto since taking office and is more than all vetos by all governors combined since veto power was added to the state’s constitution in 1996.

Wilmington area gym owner Danny Richiani tells North State Journal that he’s “devastated” by the override failure.

“I’m devastated by the news of the override failure. It’s as if our own leaders don’t understand the human tragedy of their decision,” said Richiani. “When they voted “no”, they voted against small business owners AND their employees ability to make a living, pay their bills, even feed their families is some cases. THAT’S what the “no” vote meant.”

Gym owners were quick to notice that the mask mandate includes an exemption for not wearing a mask when “strenuously” exercising. This exemption is part of a pattern in the governor’s executive orders, which on the surface seem straight forward, yet when challenged “interpretations” have arisen.

Such was the case with Cooper’s executive order 141 in a letter sent by Special Deputy Attorney Phil Rubin to the firm representing the health club owners in a suit against Cooper.  In the letter, Rubin said that “The Governor interprets Executive Order No. 141 to allow the use of indoor gyms or fitness facilities when that use is prescribed by or directed by a medical professional.” Various health laws prohibit the owner or law enforcement from inquiring or requiring proof of such direction, thereby essentially allowing gym usage.

North Carolina is currently one of only four states which have not yet reopened fitness facilities.

About A.P. Dillon 753 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_