RALEIGH, N.C. — A North Carolina racetrack shuttered briefly for defying state gathering limits during the pandemic can sue the top health regulator on allegations that Gov. Roy Cooper’s administration violated the constitutional rights of its operators by trying to make an example out of it, the state Supreme Court ruled Friday.
The justices agreed unanimously that counterclaims that Ace Speedway in Alamance County and its owners filed seeking financial damages can continue, agreeing with a Court of Appeals panel in 2022 and a trial judge that refused to throw them out. That lawsuit was filed weeks after a judge in 2020 helped enforce then-Health and Human Services Secretary Mandy Cohen’s order to stop the track from holding events unless they complied with Cooper’s statewide executive order that included crowd-size limits.
State lawyers representing Kody Kinsley — Cohen’s successor — argued the speedway was cited because it repeatedly and publicly violated the law, and that sovereign immunity blocks such litigation against a state official. They also said COVID-19 gathering limits were temporary and served a proper governmental purpose to protect the public during the “early and uncertain stages of an unprecedented global pandemic.”
But the Supreme Court agreed the speedway’s attorney made plausible legal claims that the state infringed on rights for people to enjoy “the fruits of their own labor” and conducted “unlawful selective enforcement” of its order against the speedway. The substance of those claims have yet to be judged in court.
“We emphasize that these allegations remain unproven,” Associate Justice Richard Dietz wrote in the court’s opinion, but “these allegations assert colorable claims under the North Carolina Constitution for which there is no alternative remedy,” and thus litigation is allowed.
The ruling hands a legal defeat to the Democratic governor by a court composed of five registered Republicans and two Democrats. The case now returns to trial court to be heard. The state Department of Health and Human Services is reviewing the decision, a spokesperson said.
Three days after Cooper issued a May 2020 executive order placing a 25-person cap on all outdoor gatherings, Ace Speedway hosted approximately 2,550 spectators for its first race of the season.
Racetrack operator Robert Turner spoke out against the restrictions and said his racetrack would remain open for all attendees. A sign posted on site at a…
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