By Victor Skinner
North Carolina Solicitor General Ryan Park wants the North Carolina Supreme Court to reverse a unanimous Appeals Court ruling that allows an Alamance County speedway to sue the state government over a 2020 COVID lockdown order.
Park filed a petition for discretionary review on September 6 that asks the high court to consider Kinsley v. Ace Speedway Racing, a lawsuit asserting the authority of the North Carolina Department of Health and Human Services (DHHS) to shut down Ace Speedway during the pandemic.
The original lawsuit involved former DHHS Secretary Mandy Cohen, who was replaced in her position, and in the lawsuit by DHHS Secretary Kody Kinsley.
Three Republican judges on the Appeals Court upheld a lower court decision against a motion by DHHS attorneys to dismiss Ace’s claims, which allege violations of a right to earn a living under the state constitution’s fruits of labor clause, as well as selective enforcement of Gov. Roy Cooper’s COVID executive orders.
“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,” Park wrote in the September 6 filing on behalf of Kinsley.
The filing cites experts’ predictions about COVID-19 in 2020 and the intent of Cooper’s executive orders to prevent the spread as justification for attempting to limit spectators at the racetrack and alleged the Appeals Court ruling sets a dangerous precedent.
“The decision … marks a sharp departure from this Court’s well-established precedent,” Park wrote. “And if allowed to stand, the decision … would hamstring the government’s ability to effectively address future public-health crises.”
DHHS secured abatement and temporary restraining orders to shut down Ace Speedway in June and July 2020 after owner Jason Turner openly defied Cooper’s restrictions on gatherings to hold stock car races on three occasions in May and June 2020, hosting more than 1,000 spectators at each event.
Prior to the races, Turner consulted with county health officials to implement COVID precautions including contract tracing, temperature screenings, social distancing in common areas, and reduced and distanced audience seating arrangements.
Cooper called the events “reckless” and “dangerous,” according to local media outlet Fox 8.
Chuck Kitchen, attorney for the speedway, responded to Park’s petition on September 13, asking the Supreme Court to reject the appeal.
Kitchen noted the races took place only after consulting with Alamance County health officials and instituting recommended precautions, argued Cooper’s executive order on the lockdown could not legally be enforced with abatement, and suggested Ace was singled out by the governor for enforcement.
“The Appellees spoke out in the press against the Executive Orders of the Governor,” Kitchen wrote. “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 racetracks 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.”
“This 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 in Ace’s response to the Supreme Court.
Because the Court of Appeals decision was unanimous, the Supreme Court is under no obligation to take up the case and is not bound by a timeline for a decision if it does, The Carolina Journal reports.
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