Raleigh, North Carolina — A North Carolina racetrack that was briefly closed for defying state gathering limits during the pandemic can sue the state’s top health regulator on allegations that Gov. Roy Cooper’s administration violated its operators’ constitutional rights by attempting to make an example of them, the state Supreme Court ruled Friday.
The justices unanimously ruled that the counterclaims filed by Ace Speedway in Alamance County and its owners for financial damages could proceed, agreeing with a Court of Appeals panel in 2022 and a trial judge who refused to dismiss them. That complaint was brought weeks after a court in 2020 helped enforce then-Health and Human Services Secretary Mandy Cohen’s decision to prohibit the track from scheduling events unless it followed Cooper’s statewide executive order, which included crowd-size restrictions.
State lawyers for Kody Kinsley, Cohen’s successor, said that the speedway was designated because it regularly and publicly violated the law, and that sovereign immunity prevents such lawsuits against a state official. They also stated that COVID-19 collection restrictions were temporary and served a legitimate governmental aim of protecting the public during the “early and uncertain stages of an unprecedented global pandemic.”
However, the Supreme Court agreed with the speedway’s attorney’s valid legal assertions that the state violated people’s rights to enjoy “the fruits of their own labor” and performed “unlawful selective enforcement” of its injunction against the speedway. The substance of these claims has yet to be determined in court.
“We emphasize that these allegations remain unproven,” Associate Justice Richard Dietz said in the court’s judgment. However, “these allegations assert colorable claims under the North Carolina Constitution for which there is no alternative remedy,” therefore litigation is permitted.
A court made up of five registered Republicans and two Democrats rules against the Democratic governor, handing him a legal loss. The case has now been returned to the trial court for hearing. A representative for the state Department of Health and Human Services confirmed that the decision is currently being reviewed.
Ace Speedway conducted its first race of the season for around 2,550 spectators, three days after Cooper issued an executive order in May 2020 limiting any outdoor gatherings to 25 people.
Racetrack operator Robert Turner came out against the limits, saying his track would remain open to all attendees. A placard displayed on site during a later race in June branded the 2,000-person gathering as a “peaceful protest of injustice and inequality everywhere,” according to the lawsuit.
When the short-track speedway continued to attract audiences of 1,000 or more, Cooper’s office directed the Alamance County sheriff to interfere. After the sheriff refused, the Cooper administration labeled Ace Speedway a “imminent hazard” for the spread of COVID-19, ordering its closure until the order expired. Turner claimed that Cooper treated his business differently than other outdoor venues due to his outspoken opposition.
Such prohibitions have long since lapsed. State prosecutors argued that allowing counterclaims to continue would “hamstring the government’s ability to effectively address future public health crises and other emergencies,” according to Kinsley’s court brief.
Dietz noted that at this point in the case, the Ace Speedway claims must be accepted as factual. And, if Cooper did single out the firm for enforcement in response to Turner’s outcry, Dietz said the order lacked a sufficient governmental purpose.
Chuck Kitchen, an attorney representing the speedway operators, hailed Friday’s ruling, stating that the speedway had been closed for virtually the entire racing season.
Other legal cases involving the governor’s powers during health emergencies are pending.
The state Supreme Court has agreed to hear two arguments brought by freestanding bar operators who claim Cooper’s executive orders compelling them to remain closed for safety while restaurants serving alcohol were allowed to reopen violated the state constitution. Court of Appeals panels have sided with the bars and taverns. Kitchen, who is also representing plaintiffs in one of the bar cases, believes the bar litigation might address the question of whether the executive orders were illegal even without charges of selective enforcement.