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Commissioner McCall files lawsuit to scrap N.C. emergency orders

Saying "a state of emergency in relation to the Covid-19 no longer exists," Henderson County Commissioner Rebecca McCall is seeking to prevent Gov. Roy Cooper from continuing to enforce emergency orders regarding mask mandates and other restrictions.

Attorneys Chuck Kitchen of Raleigh and Lydia Boesch of Pinehurst filed the lawsuit on behalf of Freedom Matters in Moore County, Commissioner McCall and her daughter-in-law, Cortney Johnson McCall, a schoolteacher and mother of school-age children. McCall has spoken out forcefully against the mask mandate that applies to all public school pupils, saying the requirement was unnecessary and emotionally harmful.

The primary cause of action in the plaintiffs’ lawsuit is that a state of emergency in relation to the Covid-19 no longer exists. If a state of emergency no longer exists, Cooper’s authority to continue to issue executive orders is terminated. The suit also challenges the continuing mask requirements in public schools under both statutory and constitutional grounds. It's at least the third lawsuit Kitchen has filed on behalf of plaintiffs; previous lawsuits were filed since early May in Moore and Carteret counties.

The complaint cites Executive Orders in which Cooper has stated, among other things, that:
• There have been declines in the percent of emergency department visits related to Covid-like illness.
• There have been declines in the daily diagnoses of Covid-19.
• There have been declines in the positive tests for Covid-19.
• There has been a decline in the number of Covid-19 associated hospitalizations.

The plaintiffs also note that Henderson County does not have a county state of emergency declaration in place for Covid-19. According to the NCDHHS County Alert System, as of May 24, Henderson County had a low community spread of Covid-19.
Other facts cited in the lawsuit include:
• North Carolina’s population according to the U.S. Census Bureau was determined to be 10,488,084. As of May 24, 2021, 680 individuals were hospitalized in North Carolina with Covid-19, or .007 percent of the total population.
• Cone Health in Greensboro opened a hospital only for Covid-19 patients on April 13, 2020. More than 4,700 patients were treated in the hospital. However, due to the decline in Covid-19, the hospital was closed on March 5.
• According to the NC Department of Health and Human Services, as of March 4, the case rate of Covid-19 has decreased 15-fold in skilled nursing facilities and adult care homes since January 2021.
• According to the CDC, “[m]ost children with Covid-19 have mild symptoms or have no symptoms at all.”
Plaintiffs say in the complaint that no evidence supports the state of emergency that's remains in place in North Carolina and that Cooper’s own statements in the Executive Orders cited in the Complaint fail to support the state of emergency.
Plaintiffs also take special note of the following statement in Executive Order No. 215, issued on May 14, 2021: "Whereas, if the state's Covid-19 case rate increases, if the state's vaccination rate slows, or if new evidence arises regarding the risks of Covid-19 and its variants, it may be necessary to reevaluate whether additional restrictions are necessary to reduce the risk of death and serious illness from Covid-19. [Emphasis added]

Exercising unilateral executive authority over North Carolina for more than 444 days, Cooper has issued 69 Executive Orders concerning Covid-19, the lawsuit says. "The above statement in Executive Order No. 215 suggests there is no end in sight," the news release said. "If, as plaintiffs claim, no credible evidence supports this ongoing state of emergency, the state of emergency must end."