RALEIGH, N.C. (AP) — A North Carolina race track temporarily closed for ignoring state gathering limits during the pandemic can sue top health officials, accusing Gov. Roy Cooper's administration of violating the track operator's constitutional rights in an attempt to make an example, the state Supreme Court ruled Friday.
The justices unanimously agreed that a counterclaim brought by Ace Speedway in Alamance County and its owners seeking monetary damages can proceed, agreeing with the 2022 Circuit Court hearing and the judge who did not dismiss it. The suit was filed weeks after the justices helped enforce then-Health and Human Services Secretary Mandy Cohen's order in 2020 that prohibited race tracks from hosting events unless they complied with Gov. Cooper's statewide executive orders, which included limits on spectator numbers.
State attorneys representing Cohen's replacement, Cody Kinsley, argued that the Speedway was sued because it repeatedly and blatantly violated the law and that sovereign immunity bars such lawsuits against state officials. They also said the COVID-19 gathering restrictions were temporary and served the government's proper purpose of protecting the public during the “early and uncertain stages of an unprecedented global pandemic.”
But the Supreme Court did accept plausible legal arguments from Speedway's lawyers that the state violated people's rights to enjoy “the fruits of their labor” and that the state engaged in “unlawful selective enforcement” of its orders against Speedway. The substance of those arguments has yet to be determined by the court.
“I emphasize that these allegations remain unproven,” Judge Richard Dietz wrote in his ruling, but the lawsuit was allowed because “they are meritorious claims under the North Carolina Constitution and no other remedy is available.”
The ruling marks a final legal defeat for the Democratic governor by a court made up of five registered Republicans and two Democrats. The case now goes back to the court for a hearing. The state Department of Health and Human Services is reviewing the decision, a spokesman said.
Three days after Governor Cooper issued an executive order in May 2020 capping all outdoor gatherings at 25 people, Ace Speedway hosted approximately 2,550 spectators for its first race of the season.
Racetrack operator Robert Turner opposed the restrictions and said the track would remain open to all visitors. At a subsequent race in June, signs were posted describing the rally, which drew 2,000 people, as a “peaceful protest against injustice and inequality everywhere,” according to the lawsuit.
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As the short track speedway continued to draw more than 1,000 spectators, Cooper's office ordered the Alamance County sheriff to step in. After the sheriff refused, Cooper's administration declared Ace Speedway an “immediate risk” for the spread of COVID-19 and asked it to close until the order expired. Turner argued that Cooper treated the venue differently from other outdoor venues because of his vocal opposition.
Those restrictions have long since expired. State prosecutors argued that continuing the counterclaim would “impair the government's ability to effectively respond to future public health crises or other emergencies,” Kinsley's brief states.
Dietz wrote that Ace Speedway's allegations must be accepted as true at this stage of the litigation, and that if Cooper had singled out the company for enforcement because of Turner's protests, the order would not have served a proper governmental purpose.
Chuck Kitchen, an attorney for the speedway operators, said the speedway had been closed for nearly the entire racing season and praised Friday's decision.
Other lawsuits involving the governor's powers during health emergencies are also pending.
The state Supreme Court agreed to hear two lawsuits brought by independent bar owners who argued that Governor Cooper's executive order violated the state constitution by forcing bars to close for safety while allowing restaurants that serve alcohol to reopen. A panel of appeals court judges sided with the bars and taverns. Kitchen, who also represented plaintiffs in one of the bar lawsuits, said the bar lawsuits could address a broader issue about whether the executive order is illegal even without a selective enforcement claim.
