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A steady rain this evening. Showers continuing overnight. Low 61F. Winds E at 5 to 10 mph. Chance of rain 100%. Rainfall around a half an inch. Locally heavy rainfall possible..
Tonight
A steady rain this evening. Showers continuing overnight. Low 61F. Winds E at 5 to 10 mph. Chance of rain 100%. Rainfall around a half an inch. Locally heavy rainfall possible.
Ace Speedway's win in the Appeals Court of North Carolina this month could open the door to suing state government over COVID-19 restrictions, but a parallel suit also headed to appeal could make an even bigger splash.
“My position has been all along that what the governor did was unconstitutional,” said Chuck Kitchen, the lawyer representing Ace Speedway as well as a group of bar owners in Carteret County and a number of others fighting state restrictions to slow the spread of COVID-19 over the past two years.
A three-judge panel of the state court of appeals refused to dismiss the Altamahaw racetrack’s lawsuit. The opinion released early this month said Ace Speedway had the right to challenge Gov. Roy Cooper’s executive orders under the state constitution’s guarantee of a right to earn a living, its “fruits of labor clause,” and the Secretary of Health and Human Services’ enforcement order closing the track, which Ace calls selective enforcement.
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The state can ask the Supreme Court of North Carolina to dismiss the case, which the court might or might not take on, Kitchen said, or it could return to the superior court in Graham where the lawsuit could play out. It will take a little less than a month to find out which.
The speedway decision won’t necessarily open the door to all business owners who lost money because of COVID restriction, Kitchen said, because of the specific way the DHHS secretary closed the track down. After the Alamance County Sheriff’s Office refused to issue Ace Speedway a citation for violating the Governor’s executive order 141 limiting outdoor gatherings to 25 people, the DHHS secretary issued an abatement order to close the track entirely.
The state didn’t do that to other businesses, so the decision still opens the door to sue the state, Kitchen said, but only so wide. The Carteret County case, Howell vs. Cooper, challenges the executive order itself. Like the Ace Speedway suit, a superior court judge refused to dismiss that lawsuit, and the state is appealing that decision.
Ace Speedway
The panel of three Republican judges on the appeals court found that Ace made plausible arguments that the state violated its owners’ rights under the state constitution that need to be heard in court.
Robert Turner, speedway co-owner, announced the track was going to open in spite of the governor’s order in May of 2020 after putting off the season opener telling the Times-News “I’m going to race and I’m going to have people in the stands. . . . And unless they can barricade the road, I’m going to do it. The racing community wants to race. They’re sick and tired of the politics. People are not scared of something that ain’t killing nobody. It may kill .03 percent, but we deal with more than that every day, and I’m not buying it no more.”
Kitchen said that put Ace on the Governor’s radar and singled the Turners out. State Solicitor Zachary Ezore said courts upheld the state’s right to go after vocal scofflaws as a deterrent to others.
“If you talk to press the state can come after you,” Kitchen said. “That was essentially their argument at the court of appeals.”
Ace also argued it complied with recommendations made by the Alamance County Health Department about taking temperatures and trying to get information for contact tracing but could not financially comply with a limit of 25 spectators. The Turners said it takes about 1,000 spectators to break even.
Kitchen said there was no reason to think that was a reasonable restriction on an outdoor venue. Ezore said it was a rational decision for the state to make in the early days of the pandemic when the spread of COVID-19 was accelerating and there was a lot left to learn about its spread.
State COVID-19 restrictions officially ended Monday, Aug. 15.
Isaac Groves is the Alamance County government watchdog reporter for the Times-News and the USA Today Network. Call or text 919-998-8039 with tips and comments or follow him on Twitter @TNIGroves.
