The state’s top health official is asking the N.C. Supreme Court to reverse a unanimous Appeals Court ruling against him. Appellate judges determined that owners of an Alamance County racetrack could sue the official over a COVID-related shutdown in 2020.
State Solicitor General Ryan Park filed paperwork Sept. 6 asking the Supreme Court to take up the case Kinsley v. Ace Speedway Racing. The track’s owners filed a response Tuesday asking the court to reject the appeal.
Since the Appeals Court’s three-judge panel issued a unanimous ruling on Aug. 2, the state’s highest court faces no obligation to take the case.
“This appeal concerns whether the State can be subject to claims for financial damages for taking steps to protect public health during the worst pandemic in a century,” wrote Park, representing N.C. Health and Human Services Secretary Kody Kinsley.
Kinsley is the named defendant in the lawsuit, even though the speedway’s shutdown took place under the authority of his predecessor, Dr. Mandy Cohen.
The state’s petition reminds the Supreme Court about the conditions in place during the early days of the pandemic in spring 2020.
“Based on the best information available at the time, Covid-19 was understood to spread when large groups of people assembled for long periods of time in close proximity, especially in environments where crowds would sing or cheer and therefore expel respiratory droplets,” Park wrote. “But the owner of Ace Speedway, an Alamance County racetrack, proclaimed that Ace would defy the law and hold large racing events. Over the course of three weekends, thousands of people attended a series of races at the speedway.”
“To protect the public from further harm, the Secretary of the Department of Health and Human Services issued an imminent-hazard abatement order that required Ace to close until it agreed to abide by the executive order,” Park added. “The Secretary did so under authority granted by the General Assembly, and in line with the best available information about Covid-19. After Ace again refused to comply, the Secretary sought and obtained an injunction in Alamance County Superior Court requiring compliance with the abatement order.”
“Ace claims that this order violated its constitutional rights,” the solicitor general wrote. “And because the order’s restrictions have long expired, Ace now seeks money damages for the alleged violation. The Secretary moved to dismiss Ace’s claims on the basis of sovereign immunity, but the trial court denied the motion as to two of Ace’s claims. The Court of Appeals affirmed.”
Now the state is asking the N.C. Supreme Court to review the matter. “The decision below marks a sharp departure from this Court’s well-established precedent,” Park wrote. “And if allowed to stand, the decision below would hamstring the government’s ability to effectively address future public-health crises.”
Ace Speedway’s response reminded the court that the disputed races took place only after the track’s owners met with the Alamance County health director. The track instituted health-related measures based on the health director’s guidance.
The response also noted the impact of critical comments speedway owner Jason Turner made to media outlets in 2020. Turner criticized Gov. Roy Cooper’s COVID shutdown orders.
“After these comments, the Governor became personally involved with shutting down ACE Speedway,” wrote Chuck Kitchen, the speedway owners’ attorney. A “person from Gov. Cooper’s office” called the local sheriff on May 30, 2020, to ask that the sheriff urge Ace Speedway to call off its races. The governor, “through his counsel,” also sent a letter to the sheriff and local county commissioners chairman reminding them that races would violate Cooper’s executive order.
“These Defendants were singled out for enforcement by the Governor and the Plaintiff due to the comments made by … Jason Turner to the media,” Kitchen argued.
Ace Speedway challenged the DHHS secretary’s decision to shut down the racetrack.
“The issuance of an Order of Abatement shutting down a business in order to enforce an executive order was wrongful,” Kitchen wrote. “N.C. Gen. Stat. § 166A-19.30(d) provides that the violation of an executive order issued by the Governor is a misdemeanor. An executive order cannot be enforced by an order of abatement.”
“This [Supreme] Court has held that there is sufficient evidence to show a constitutional violation when a deprivation of plaintiffs’ freedom of speech was the moving force behind an injunction closing a business,” Kitchen wrote, citing a 1997 precedent called Moore v. City of Creedmoor. “This is what happened in the present case.”
“The Appellees spoke out in the press against the Executive Orders of the Governor,” Kitchen added. “The Governor became personally involved and contacted the Alamance County Sheriff. The Sheriff had never had this happen in his 49 years in law enforcement. Further, the Sheriff had an investigation conducted by his office and determined that there were several other race tracks in the area which were conducting races. Since the State was not taking action against those tracks, the Sheriff refused to charge the Appellees with violating the Executive Order of the Governor.”
There is no timetable for a decision from the Supreme Court about accepting or rejecting the state’s appeal.