Legal challenge to governor's emergency powers one step closer to three-judge panel
Photos by Maya Reagan, Carolina Journal
By Mitch Kokai, Carolina Journal
A lawsuit challenging the constitutionality of Gov. Roy Cooper's emergency powers has moved closer to a resolution. The senior resident Superior Court judge for Wake County has agreed the case should head to a three-judge panel.
That panel will address the lawsuit's claim that Cooper's powers under the state Emergency Management Act are unconstitutional. Crystal Waldron, owner of the Greenville bar Club 519, has been challenging Cooper's actions in court since December 2020. The governor's COVID-related shutdown orders had forced Waldron to close her bar's doors.
"We’re thrilled that Crystal Waldron and Club 519 will have their day in court to challenge the constitutionality of the Emergency Management Act," said Jessica Thompson, a Pacific Legal Foundation attorney representing Waldron. "It’s critical that the courts reaffirm the separation of powers, guaranteed in the state constitution, preserves individual liberty by safeguarding against the tyranny that may arise from the accumulation of power in one person."
State law requires three-judge panels to consider any suit challenging a law "on its face," meaning that the plaintiffs contend that the law is unconstitutional under all circumstances.
"I have reviewed the enclosed Amended Complaint, determined that this case is appropriate for the appointment of a three-judge panel, ... and respectfully request that a panel is thus appointed," wrote Judge Paul Ridgeway, senior resident Superior Court judge in Wake County. Ridgeway submitted the Feb. 2 letter to N.C. Supreme Court Chief Justice Paul Newby. Newby would appoint the panel.
Much has changed since Waldron and Club 519 initially went to court. Shortly after an initial hearing on the case in February 2021, Cooper relaxed some shutdown restrictions on N.C. bars. The following month, Waldron amended her suit to focus on challenging the constitutionality of the state Emergency Management Act. Cooper had used the EMA to justify his shutdown of bars.
In November 2021 Cooper signed a state budget law that places new limits on his emergency powers. Those limits take effect in 2023.
"These Emergency Management Act reforms go a long way to ensure North Carolinians will have constitutional government even in times of emergency and should be applauded," Thompson wrote for Carolina Journal a week after Cooper signed the budget. "But there is still work to be done and as they say, 'eternal vigilance is the price of liberty.'”
"The new reforms will not take effect until 2023, and Cooper’s state of emergency remains in effect after 20 months," Thompson wrote at the time. "Crystal Waldron and Club 519’s challenge to the EMA in effect until 2023 is still pending and awaiting a three-judge panel assignment."
There's no deadline for Newby to make that assignment.
