RALEIGH, N.C. (AP) — A North Carolina racetrack that was temporarily closed during the pandemic for ignoring state gathering restrictions can sue the state’s top health agency, alleging that Gov. Roy Cooper’s administration violated its operators’ constitutional rights by trying to make an example of them, the state Supreme Court ruled Friday.
The justices unanimously agreed to allow counterclaims filed by Ace Speedway in Alamance County and its owners seeking monetary damages to proceed, agreeing with an appeals court in 2022 and a trial judge who refused to dismiss the suit. That lawsuit was filed weeks after a judge in 2020 helped enforce then-Health Secretary Mandy Cohen’s order barring the track from holding events unless they followed Cooper’s statewide order, which included spectator limits.
Prosecutors representing Kody Kinsley – Cohen’s successor – argued that the racetrack was sued because it repeatedly and publicly violated the law and that state immunity prohibits such a suit against a state official. They also said the COVID-19 gathering restrictions were momentary and served a legitimate governmental purpose, namely protecting the public during the “early and uncertain stages of an unprecedented global pandemic.”
But the Supreme Court agreed that the racetrack’s attorney made plausible legal claims that the state violated the people’s right to enjoy “the fruits of their own labor” and “unlawfully selectively enforced” its orders against the racetrack. The substance of those claims has yet to be decided in court.
“We emphasize that these allegations remain unproven,” Associate Justice Richard Dietz wrote in the court’s opinion, but “these allegations assert viable claims under the North Carolina Constitution for which there is no alternative remedy,” and therefore a lawsuit is permissible.
The ruling represents a legal defeat for the Democratic governor in a court made up of five registered Republicans and two Democrats. The case will now be brought back before the court of first instance. The state Department of Health is reviewing the decision, a spokesman said.
Three days after Cooper issued an executive order in May 2020 limiting all outdoor gatherings to 25 people, Ace Speedway welcomed approximately 2,550 spectators to its first race of the season.
Racetrack operator Robert Turner opposed the restrictions and said his racetrack would remain open to all visitors. A sign posted at a later race in June described the gathering of 2,000 people as a “peaceful protest against injustice and inequality everywhere,” the lawsuit says.
When the short-track racing track continued to draw over 1,000 spectators, Cooper’s office ordered the Alamance County Sheriff to intervene. After the sheriff refused, the Cooper administration declared Ace Speedway an “imminent danger” of spreading COVID-19 and ordered it closed until the order expired. Turner claimed that Cooper treated his business differently than other outdoor venues because of his vocal opposition.
Such restrictions have long since expired. Attorneys argued that allowing countersuits to continue would “limit the government’s ability to effectively address future health crises and other emergencies,” Kinsley’s legal opinion said.
Dietz wrote that the allegations against Ace Speedway must be presumed true at this stage of the case. And if Cooper did indeed single out the company for enforcement because of Turner’s protest, then the order would not have served a proper governmental purpose, Dietz said.
Chuck Kitchen, an attorney representing the racetrack’s operators, praised Friday’s decision, saying the track had remained closed for nearly an entire racing season.
Additional court cases concerning the governor’s powers in the event of a public health emergency are still pending.
The state Supreme Court has agreed to hear two cases brought by operators of stand-alone bars who said Cooper’s orders forcing them to remain closed for safety reasons while restaurants that serve alcohol were allowed to reopen violated the state constitution. Appeals courts have sided with the bar and taverns. Kitchen, who also represents plaintiffs in one of the bar’s cases, said the bar’s litigation could address more broadly whether the orders were unlawful even without allegations of selective enforcement.
