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Judge deals setback to McCall’s lawsuit against mask mandate

Special Deputy Attorney General Matthew Tulchin argues on behalf of N.C. Gov. Roy Cooper during a hearing Thursday in Henderson County’s Superior Court Special Deputy Attorney General Matthew Tulchin argues on behalf of N.C. Gov. Roy Cooper during a hearing Thursday in Henderson County’s Superior Court

A Superior Court Judge on Thursday dealt a setback to County Commissioner Rebecca McCall’s efforts to end N.C. Gov. Roy Cooper’s Covid-19 emergency orders regarding mask mandates and other restrictions.


Marvin P. Pope, Jr, a retired resident Superior Court Judge for the 28th Judicial District in Buncombe County, denied a motion for a preliminary injunction filed on behalf of McCall and other plaintiffs in the case saying “Covid is continuing, especially with this new Delta variant.”
Pope also said the state’s mask requirement for public schools is reasonable given current CDC and WHO guidelines concerning the pandemic.
McCall said after the hearing held at the Henderson County Courthouse that she was disappointed.
“I’m disappointed but a least we gave it an effort to speak out for the children because they can’t speak out for themselves,” she said.
Also speaking after the hearing, McCall’s lawyer, S. Chuck Kitchen of Kitchen Law, PLLC, said Thursday’s ruling does not change the lawsuit that calls for an end to the governor’s emergency Covid-19 orders. The suit will continue working its way through the court system, he said.
“This is just the beginning,” he said. “This is what one judge thought.”
McCall filed the suit as a private citizen and not as a representative of Henderson County’s Board of Commissioners.
But fellow commissioners Michael Edney and chairman William Lapsley attended the hearing in a show of support for McCall. Henderson County’s school board members Jay Egolf and Amy Lynn Holt also attended the hearing to support McCall.
Holt said she too was disappointed in Thursday’s ruling.
“I will continue to fight for the rights of our parents and children,” she said. Egolf declined to comment.
In arguments during the hearing, Kitchen asked the judge to grant the preliminary injunction, which would have halted Cooper’s emergency orders while the courts considered the lawsuit.
Kitchen argued that the governor’s emergency orders regarding mask mandates and other restrictions should end because the state of emergency that allowed for the orders no longer exists.
“Once the state of emergency is over the governor needs to terminate it. That’s where we are. This state of emergency is over,” he said. “After 15 months, there is no state of emergency.”
Kitchen also argued that Cooper has improperly taken over the role of cities and counties by issuing Covid restrictions.
The governor’s Covid restrictions also violate the state’s constitution by denying citizens their liberty, he said.
Kitchen said people’s dignity is part of their liberty.
“I’m sorry,” he said. “Wearing these masks is not dignified. There is no right for the state to intrude on your dignity.”
No one with immunity to Covid-19 whether from vaccinations or from having contracted the disease should be required to wear a mask, he said.
Thursday’s hearing began after Pope denied a motion by Special Deputy Attorney General Matthew Tulchin to continue the proceeding to a later date.
Tulchin, who represents Cooper and the state, asked for the continuance saying the governor and state health officials are currently reviewing new CDC guidelines and that the governor’s orders might change once that review is complete.
After Pope denied the motion, Tulchin argued that Covid-19 remains a public health emergency and that granting the preliminary injunction would cause the disease to spread more easily in schools.
“We are essentially at war with a disease,” he said. “Wearing a mask in school is a small price to pay.”
The state and country have not reached the herd immunity that would make it less likely for even unvaccinated people to contract Covid-19, he said.
Most children also have not been vaccinated and natural immunity is not likely a protection against the more contagious Delta variant, Tulchin argued.
He also argued that state law gives the governor authority to enact Covid restrictions as part of the state’s emergency response to the pandemic.
“The governor’s decision is not arbitrary or in bad faith,” he said.
Tulchin called the argument that mask mandates violate people’s liberty under the state constitution novel.
Mask mandates and other emergency orders are in the legitimate best interests of the state and not arbitrary, he said.
“Only the most egregious conduct can be considered arbitrary. Asking to wear masks in schools is not arbitrary,” Tulchin said.
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.
In the lawsuit, 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.
Pope addressed order No. 215 in his ruling.
The order does not violate the due process rights of the citizens of North Carolina or the plaintiffs in the lawsuit, he said.
Order 215 is necessary for the citizens of the state, he said.
The governor’s orders regarding Covid-19 also do not violate the state’s constitution, Pope said.
Pope retired as a Buncombe County Superior Court Judge on Feb. 1 after a 48-year legal career. State law allows for retired judges to serve as special or emergency judges.