New lawsuit aims to terminate Roy Cooper’s COVID-19 emergency powers

By Donna King

Raleigh, NC – A new lawsuit filed Friday, May 7, in Carteret County would end Gov. Roy Cooper’s ability to issue executive orders linked to the COVID-19 pandemic. The suit contends that Cooper has lost his authority to issue COVID-related orders because no state of emergency exists today.

silhouette of a man in window
Photo by Donald Tong

Raleigh-based attorney Chuck Kitchen filed the suit on behalf of Freedom Matters NC and Carteret County resident Michele Nix, a former state Republican Party official.

“The primary cause of action in the plaintiffs’ lawsuit is that a state of emergency in relation to the COVID-19 no longer exists,” according to a news release from Kitchen. “If a state of emergency no longer exists, Governor Cooper’s authority to continue to issue Executive Orders is terminated. The suit also challenges the continuing mask requirements under both statutory and constitutional grounds.”

Freedom Matters NC is a Moore County-based activist group. Lydia Boesch is one of the group’s leaders. She got involved in the early days of the COVID-related lockdowns. She said she researched the death rates and infection rates and concluded that it was all not adding up, but saw her neighbors in fear.

“This fear has caused people to relinquish their freedoms and accept anything the government says to them,” said Boesch.”They don’t want to be the only one to stand up and they allow themselves to be intimidated.”

She says it is time for Cooper to remove all restrictions.

“There is no emergency anymore,” she said. “Why should Roy Cooper have the power to continue to dictate to everybody in North Carolina how they can live their lives? We felt like the courts were the only ways to end his emergency powers.”

The lawsuit points to several factors that argue against an ongoing emergency.

“There have been declines in the percent of emergency department visits related to COVID-like illness,” Kitchen’s news release argues. “There have been declines in the daily diagnoses of COVID-19, [t]here have been declines in the positive tests for COVID-19, and [t]here has been a decline in the number of COVID-19 associated hospitalizations.”

Kitchen highlights other data points supporting his argument. “North Carolina’s population according to the U.S. Census Bureau was determined to be 10,488,084. As of April 5, 2021, 907 individuals were hospitalized in North Carolina with COVID-19. That is 0.009% of the total population.”

Kitchen has challenged Cooper’s COVID-19 executive orders before. In December 2020, he filed suit on behalf of bar owners across the state. At that time, he was challenging Cooper’s orders forcing those bars to remain closed during the pandemic.

Cooper has relied on emergency powers granted under the state Emergency Management Act. Kitchen’s December lawsuit called for a three-judge panel to rule that a portion of that act is unconstitutional. That case is pending.

“The way we can be freed from these mandates is by going down two paths,” said Boesch. “One is through the General Assembly, and two is through the courts because it is possible that Roy Cooper could decide to exercise his emergency power indefinitely.”

In the General Assembly, the House passed a bill that would put a seven-day limit on the governor’s orders in an emergency unless the Council of State authorized his actions to continue. It also requires the governor to consult with the Council of State within 48 hours of an emergency declaration.

Cooper has received criticism throughout the COVID pandemic and shutdowns because he acted without consent of members of the N.C. Council of State, consisting of North Carolina’s 10 elected executive branch officials. Rep. Keith Kidwell, R-Beaufort, is a primary sponsor of House Bill 264, the Emergency Powers Accountability Act.

Meanwhile, the Senate approved its own measure to rein in Cooper’s powers. Senate Bill 346 spells out that executive orders lasting longer than 10 days would require approval from the Council of State. After 45 days, those orders would require support from the General Assembly.

Senators voted 28-21 to approve that bill April 27.

Carolina Journal staff contributed to this article.