NC Court of Appeals rules case against NCDHHS can proceed

Three-judge panel ruled unanimously in favor of Ace Speedway

FILE - Hundreds of race fans wait in line to purchase tickets at the Ace Speedway on in the rural Alamance County community of Altamahaw near Elon, N.C., on May 23, 2020. The North Carolina Court of Appeals ruled Tuesday, Aug. 2, 2022, that Gov. Roy Cooper’s secretary of health and human services should not be immune from a lawsuit over the administration’s gathering restrictions in the early months of the coronavirus pandemic. The N.C. Department of Health and Human Services temporarily shut down Ace Speedway in June 2020 after it repeatedly defied Cooper’s executive order limiting outdoor crowds to mitigate the spread of COVID-19. (Robert Willett/The News & Observer via AP, File)

RALEIGH — A North Carolina Court of Appeals three-judge panel has ruled that a case involving the COVID-19 shutdown of Ace Speedway in 2020 due to orders issued by the N.C. Department of Health and Human Services (NCDHHS) can proceed. 

“This case makes us consider the use of overwhelming power by the State against the individual liberties of its citizens and how that use of power may be challenged,” wrote Judge Jefferson Griffin. 

Griffin penned the ruling, with Judges Jeff Carpenter and Fred Gore concurring. 

The panel’s ruling says in the appeal of Kody H. Kinsley v. Ace Speedway Racing Ltd. affirms a trial court’s order.  

“In this appeal, we are asked to decide whether Ace has presented colorable constitutional claims for which our courts could provide a remedy. We hold that Ace pled each of its constitutional claims sufficiently to survive the Secretary’s motion to dismiss,” Griffin wrote. “We affirm the trial court’s order.” 

A colorable claim refers to whether a claim has a reasonable or strong enough chance of being found valid based on the facts presented and the application of current law. 

The three-judge panel ruling also outlines the claim made by Ace Speedway’s owner Jason Turner that his speedway was the target of “selective enforcement” by the Cooper administration following remarks he made to the Burlington-Times News in May of 2020 about the governor’s shutdown orders.  

“Ace effectively pled that it was among a class of ‘many speedways’ that similarly conducted races with fans in attendance during the period where such actions were banned by Order 141,” the ruling reads. “Ace further pled that Governor Cooper and the Secretary ‘singled out’ Ace for enforcement by directing the Sheriff to take action against Ace and, when that failed, by issuing the Abatement Order against Ace alone.” 

The ruling also says that Ace’s pleadings “taken as true, sufficiently allege bad faith enforcement of Order 141 against Ace alone.”  

The panel’s ruling also says that “Ace has sufficiently pled that the Secretary singled its racetrack out for enforcement in bad faith for the invidious purpose of silencing its lawful expression of discontent with the Governor’s actions. Therefore, sovereign immunity cannot bar Ace’s claim.” 

In conclusion, the panel held that “Ace pled colorable claims for infringement of its right to earn a living and for selective enforcement of the Governor’s orders sufficient to survive the Secretary’s motion to dismiss.” 

The case’s origin goes back to spring of 2020 when then-NCDHHS Secretary Mandy Cohen issued an initial abatement order to close down the speedway for operating after Governor Roy Cooper had issued restrictions on mass gatherings.  In a press release issued at the time, NCDHHS said “The Speedway’s recent actions constitute an imminent hazard for the spread of COVID-19, an acute threat to North Carolinians which must not continue.” 

Cohen followed up that abatement with a court order on June 8, 2020, forcing the speedway to shut down operations.  

Around the same time in early June 2020, Alamance County Sheriff Terry Johnson refused to cite Ace Speedway for violating the state’s prohibition against mass gatherings outdoors of more than 25 people after a large crowd gathered there for races.  

Ace responded by filing a lawsuit which has continued even though Cohen dropped her abatement order that September.  

In January 2021, a trial court judge ruled against Cohen’s attempt to dismiss the case based on the speedway’s claim the shutdown had violated certain constitutional rights, in particular, Article I, Section 1 of the N.C. Constitution that describes North Carolina citizens’ right to “the enjoyment of the fruits of their own labor.” 

With Cohen having departed NCDHHS, her successor Kody Kinsley is now named in the suit. He now faces the decision of whether or not to appeal to the N.C. Supreme Court. If Kinsley does not appeal, a trial in Superior Court would be the next stop. If he does appeal, the N.C. Supreme Court does not have to necessarily accept the case due to the fact the Court of Appeals panel ruling was unanimous. 

About A.P. Dillon 1137 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_