ACLU, Institute for Justice join debate over NC Supreme Court’s Ace Speedway case

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  • Attorneys with both the ACLU and Institute for Justice have filed briefs supporting Ace Speedway in its legal fight with North Carolina's top health official.
  • The N.C. Supreme Court issued orders Monday allowing both groups to contribute to the case.
  • State Health and Human Services Secretary Kody Kinsley is asking the state Supreme Court to reverse a decision from the N.C. Court of Appeals. That court ruled unanimously in 2022 that speedway owners could pursue their suit against Kinsley.

The N.C. Supreme Court issued orders Monday allowing attorneys from both the ACLU and Institute for Justice to file briefs supporting Ace Speedway in its legal fight against the state’s top health official.

State Health and Human Services Secretary Kody Kinsley is urging the high court to reverse the state Court of Appeals. A unanimous appellate panel ruled in August 2022 that speedway owners could pursue a lawsuit against Kinsley over a forced shutdown in 2020 during the COVID-19 pandemic.

The lawsuit accused Kinsley’s predecessor, Mandy Cohen, of shuttering Ace for three months because of critical comments one speedway owner made about Gov. Roy Cooper’s COVID response.

“The freedom to speak without risking retaliatory enforcement is ‘one of the principal characteristics by which we distinguish a free nation,’” wrote attorneys with the ACLU of North Carolina’s Legal Foundation. “This appeal calls on this Court to secure North Carolinians’ rights to meaningfully criticize and demand accountability from their government.”

“The question here is not whether the defendants-appellees (collectively, “Ace”) will ultimately prevail on the merits of their selective enforcement counterclaims, but whether they have sufficiently pled allegations, in accordance with North Carolina’s liberal notice pleading standard, to survive a motion to dismiss,” the brief continued.

“In answering this question, this Court should articulate a standard for selective enforcement claims under Article I, Sections 14 and 19 of our constitution that ensures meaningful accountability when state officials abuse their power,” ACLU lawyers argued. “Where a claimant has pled facts indicating that a state official’s enforcement decision was substantially motivated by protected speech (or by other impermissible considerations like the claimant’s faith or race), a selective enforcement claim should survive a motion to dismiss.”

The ACLU brief urges the state’s high court to build on existing precedent. “North Carolina courts already apply this ‘substantially motivated’ standard in other factual contexts where individuals allege that a state official has retaliated against them based on protected speech,” the lawyers wrote. “But current selective enforcement doctrine uniquely mandates that claimants show they were ‘singled out’ for enforcement for ‘bad faith or invidious’ reasons.”

“There is no basis for treating selective enforcement claims differently than any other retaliation claims,” the ACLU brief argued. “The ‘singled out’ standard imposes a standard that is more rigid than the federal First Amendment standard, undermines government accountability, and illogically forecloses consideration of other, highly relevant evidence of retaliatory intent.”

“Here, Ace has pled facts sufficient to meet the ‘substantially motivated’ standard, and their selective enforcement claims should survive a motion to dismiss,” according to the brief.

IJ’s brief focuses on similarities between the Ace Speedway case and a lawsuit challenging North Carolina’s certificate-of-need law. A New Bern eye surgeon, Dr. Jay Singleton, objects to the CON law preventing him from performing most eye surgeries at his Singleton Vision Center.

“Singleton, like this case, is on appeal from a motion to dismiss for failure to state viable constitutional claims,” wrote IJ attorneys representing the surgeon. “Singleton, like this case, challenges a public‐health law under Art. I, § 19 of the North Carolina Constitution. And Singleton, like this case, asks the Court to clarify the test that applies under Art. I, § 19 when the government restricts the right to earn a living.”

“The Secretary here, just like the State in Singleton, argues that a fact‐free rational‐basis test should apply,” the IJ brief continued. A rational-basis test would require a court to uphold the CON law if the government had a “rational basis” for putting the law in place.

“But as Dr. Singleton argues in his case, and as this Court has long held, Art. I, § 19 affords more protection,” IJ attorneys argued. “Because this Court has not decided whether to grant review in Singleton, and the Court’s treatment of Art. I, § 19 would have direct implications for one of the core issues in his case, Dr. Singleton files this amicus brief to encourage the Court to reaffirm its long line of cases applying more meaningful review to laws that restrict the right to earn a living.”

Speedway owners filed their own brief in the case Friday.

Cohen was secretary of the N.C. Department of Health and Human Services in June 2020, when she ordered Ace Speedway closed indefinitely. Cohen went to court to secure a preliminary injunction enforcing her “order of abatement.” Cohen later dropped her legal complaint in September 2020. Racetrack owners continued to pursue their own counterclaims challenging Cohen’s shutdown.

The N.C. Court of Appeals ruled unanimously in August 2022 that racetrack owners could pursue their lawsuit. By that time, Cohen had left DHHS. The suit continued against her successor, Kinsley. The state Supreme Court agreed in March to hear Kinsley’s appeal of appellate judges’ ruling.

Though legal documents refer to the secretary as “him,” racetrack owners’ allegations actually target Cohen’s actions in 2020. Kinsley is the “plaintiff-appellant” at the state Supreme Court. The track owners are “defendants-appellees.”

The brief filed Friday recounts key details of the Ace Speedway shutdown. The track has a seating capacity of 5,000 spectators. Owners said they needed 1,000 paying customers at each race to break even. On May 23, 2020, the speedway conducted a race with 2,550 spectators. Two other races took place over the next two weeks — with attendance of 1,600 and 1,200 — before Cohen blocked further track operations.

Ace had consulted with the Alamance County health director, the local sheriff, and others before developing a plan to operate races while addressing concerns about COVID-19.

Yet an executive order from Gov. Roy Cooper had banned gatherings of more than 25 people in outdoor arenas. Cohen cited Cooper’s order in calling for Ace Speedway to close.

“After the issuance of this Executive Order, Defendant–Appellee, Jason Turner, made several critical comments to the press regarding the Governor’s Executive Order,” according to the new court filing. “These comments were made a part of the basis for the lawsuit by the Plaintiff–Appellant.”

“After these comments, the Governor became personally involved with shutting down ACE Speedway,” the latest court filing argued. “On May 30 while on the way to meet with these
Defendants–Appellees, a person from Gov. Cooper’s Office called Sheriff [Terry] Johnson. … Sheriff Johnson then met with these Defendants–Appellees at the request of Gov. Cooper and requested that they call off the race which was scheduled.”

“Sheriff Terry Johnson has been in law enforcement for 49 years, and has been sheriff of Alamance County for 19 years. In his 49 years of law enforcement, this is the first time he received a letter from the Governor requesting an investigation of a particular business,” wrote attorney Chuck Kitchen, representing track owners.

The brief named several other N.C. racetracks that conducted races during the same time period. None faced orders to close. “These Defendants were singled out for enforcement by the Governor and the Plaintiff due to the comments made by Defendant–Appellee, Jason Turner, to the media,” Kitchen argued.

Track owners challenge Cohen’s authority to shutter Ace Speedway. “The operation of ACE Speedway is neither a profession or skilled trade, nor does it constitute a business which constitutes social or economic evils,” Kitchen wrote. “The operation of ACE Speedway is an ordinary business which was operated on ACE’s own property and with ACE’s own means. Further, the business did not constitute a social or economic evil, nor was it the cause of any spread of Covid-19. The Secretary did not have the police power to order ACE Speedway closed.”

Even if Cohen had the power to close the speedway, that action was “arbitrary and unreasonable,” Kitchen argued.

Cohen did not have legal authority to enforce the governor’s executive order through a shutdown, he wrote. “The enforcement of this Order can only be properly accomplished by charging the violator with a misdemeanor; it cannot be enforced by issuing an order of abatement,” Kitchen explained. “Even though the Sheriff of Alamance County refused to bring criminal charges against ACE, there are numerous State law enforcement agencies which could have brought criminal charges.”

“This is not a case where the Secretary was prioritizing actions to be filed against several racetracks,” Kitchen argued. “ACE Speedway was the only racetrack to be sued for violating Executive Order 141. The reason for the Order of Abatement being issued was not due to an imminent health hazard, but was due to ACE criticizing the Governor’s action in the press. There was no imminent health hazard caused by ACE Speedway operating. No new cases of COVID-19 in Alamance County were linked to any races held at ACE Speedway..”

The state Supreme Court has not yet scheduled Kinsley v. Ace Speedway Racing for oral arguments.