Whether a judge rules in favor of Gov. Roy Cooper or decides to throw out Cooper’s executive orders, he knows his decision is likely to head straight to the N.C. Supreme Court. 

Judge James Gale is weighing Republican Lt. Gov. Dan Forest’s lawsuit to throw out Cooper’s COVID-19 executive orders. Forest says Cooper violated the rule of law by shutting down North Carolina without permission from the Council of State. 

Forest filed his lawsuit against the governor last month, saying Cooper’s orders on mass gatherings, business closings, and face coverings all required concurrence from the 10 elected members on the Council of State. Cooper’s attorney disagreed. 

“My guess is, whatever I do, I might just be teeing it up for seven other people,” Gale said Tuesday, Aug. 4, suggesting an appeal to the Supreme Court.

Six of the seven justices on the Supreme Court are Democrats. Three of those seats will be contested in the November election

Forest is running against Cooper for governor.

Forest asked the Superior Court to block Cooper’s orders while the lawsuit goes to trial. If Gale rules against Cooper, the judge promised he’d give Cooper time for discussions with the Council of State. 

Gale recently handled a similar dispute.

In early July, he allowed bowling alleys to reopen despite a Cooper order closing them. One week later, the Supreme Court again shuttered bowling alleys while it considered an appeal from Cooper. Gale said he will issue a ruling on Forest’s case as quickly as he can, but he didn’t give a date.

“I’m not going to pull the trigger and just give you a horseback opinion,” Gale said.

Cooper has blasted Forest’s lawsuit as irresponsible and “divorced from the reality of the COVID-19 emergency,” while Forest blames Cooper for violating the rule of law and seizing “unlimited authority.” 

In his first complaint, Forest referred to law rather than policy, science, or data. Forest wrote that “this action is about the rule of law. That the chief executive must follow the law is as old as the idea of the rule of law itself.” The state Emergency Management Act limits the governor’s power by requiring concurrence from the council, Forest argues.

Cooper argued that Forest was targeting his policy response to the pandemic. The General Assembly weakened the authority of the Council of State in past years, said Ryan Park, attorney for the N.C. Department of Justice. 

“The Lieutenant Governor’s claim that this lawsuit is not a challenge to the Governor’s policy choices also rings hollow in light of the Lieutenant Governor’s repeated criticism of the Governor’s public health measures,” Cooper wrote in a brief. 

Forest’s lawyer Steven Walker argued that the governor’s authority is limited by the Council of State. 

“[The law] would be gutted if you take this interpretation,” Walker said. “Part of the delegation wasn’t just to the governor. It was also to the Council of State to serve a check on the governor.”

Gale asked several questions about limits on executive power. Gale also mentioned the legislature’s efforts to constrain or overturn the governor’s executive orders. 

“Ultimately, if the governor was going rogue, beyond the pale of reason, he would be subject to having his authority stricken by the legislature, would he not?” Gale said. “Isn’t there in fact oversight?” 

Cooper’s attorney also questioned Forest’s ability to file a lawsuit. He was the only Council of State member to participate.

If individual Council of State members could sue whenever they disagreed with a governor’s policies, Park said, “It would create a Wild West of separation-of-powers litigation.”

Forest’s lawyers replied that the Council of State was created to place a constitutional check on the governor’s power. 

Forest also mentioned a 2004 law setting policy for quarantines as the SARS pandemic was emerging. That law says quarantines can last no more than 30 days unless a court extends them. 

Forest said the restrictions closing bowling alleys and gyms were like a quarantine. They made the governor’s actions subject to the 30-day requirement for a court extension. 

But Gale didn’t seem sympathetic to that argument.