Local NC health directors back Kinsley in Ace Speedway legal battle

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  • A group representing North Carolina's local health directors backs N.C. Health and Human Services Secretary Kody Kinsley in his legal battle with owners of Ace Speedway.
  • The N.C. Supreme Court agreed in March to hear Kinsley's appeal of a unanimous ruling from the state Court of Appeals.
  • Appellate judges agreed Ace Speedway could proceed with a lawsuit against Kinsley related to a forced shutdown of speedway operations during the COVID-19 pandemic.

A group representing North Carolina’s county health directors is supporting the state’s top health official in a legal battle at the N.C. Supreme Court. The case pits Health and Human Services Secretary Kody Kinsley against owners of Alamance County-based Ace Speedway.

Kinsley is urging the state’s highest court to reverse an August 2022 decision from the N.C. Court of Appeals. A unanimous Appeals Court panel ruled that speedway owners could pursue legal action against Kinsley for a forced shutdown during the COVID-19 pandemic in 2020.

“The impact of the COVID-19 pandemic and its impact on local public health and our membership was and is very much a part of our stated mission and objectives,” wrote attorneys representing the N.C. Association of Local Health Directors. The 86 directors represent every county health department in the state.

“The decision of the North Carolina Court of Appeals in Kinsley v. Ace Speedway, if allowed to stand, has potentially undesirable ramifications and implications not only for the entire NCALHD membership but for the public health and safety of every person within the boundaries of this State,” according to the court filing.

“The events in this case occurred near the outset of the COVID-19 pandemic at a time when few definitive medical answers were known, vaccines were unavailable, and immediate preventative measures were called for to curtail the rampant spread of this highly transmissible disease,” the local health directors argued. “One thing that was known at that time with reasonable medical certainty was that limiting the indoor and outdoor congregation of persons to relatively small groups as elaborated in Executive Order 141 was a highly effective means to slow the spread of this disease and thereby protect the health and safety of the State’s population.”

Gov. Roy Cooper issued EO 141 on May 20, 2020, roughly two months into state government’s response to the pandemic.

“Allowing persons who were inconvenienced by the enforcement of this Executive Order to pursue litigation against the State’s top healthcare administrator for protecting the public health under such extreme circumstances is a grave disservice to the NCALHD and its members who are rightly concerned about their potential liability and associated litigation costs for performing their sworn public duty by enforcing public health statutes, regulations, and ordinances,” according to the court filing. “Had the DHHS Secretary failed to act to curtail Ace’s continued and ongoing violations of EO141, the Secretary would have violated a clear duty owed to every member of the public who may have been injured by Ace’s willful violations of the law.”

State Solicitor General Ryan Park filed a brief in the case Wednesday. Park represents Kinsley.

“Our State’s founding charter places meaningful limits on government power, and courts play a critical role in enforcing those limits, in good times and bad,” Park wrote. “But here, the executive branch took lawful action under authority granted by the General Assembly to protect North Carolinians during the early and uncertain stages of an unprecedented
global pandemic. The temporary limits that the government imposed in the face of this sudden emergency — limits that were lifted only a few months later, in response to improving public-health conditions and our growing understanding of the virus — were entirely consistent with the ‘great, general, and essential principles of liberty and free government’ that the State’s constitution protects.”

The state Supreme Court agreed in March to hear Kinsley’s appeal.

Park had filed paperwork on Sept. 6 asking the high court 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 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 reminded 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.”

Park urged the high court to reverse appellate judges’ ruling. “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.”

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

Editor’s note: This article has been updated to include information about Kinsley’s latest legal brief.