- The North Carolina Supreme Court will allow Ace Speedway to move forward with its lawsuit challenging Gov. Roy Cooper's COVID-related shutdown of the racetrack in 2020.
- The unanimous court upheld lower court rulings favoring Ace. Justices agreed that Ace had met its burden to proceed with claims about violations of the state constitution's "fruits of their own labor" and equal protection clauses.
- The case will return to a trial court for further proceedings.
A unanimous North Carolina Supreme Court has agreed that Ace Speedway’s COVID shutdown lawsuit against Gov. Roy Cooper can move forward. The decision Friday upholds earlier rulings from a trial judge and the Court of Appeals.
Owners of the Alamance County-based race track argue that Cooper singled them out for a shutdown during the COVID-19 pandemic in 2020. They claim the shutdown was tied to track operator Robert Turner’s criticism of the governor’s COVID policies.
“These events concern matters that are controversial in contemporary politics,” Justice Richard Dietz wrote for the unanimous court. “The legal issues in this appeal, by contrast, are so time-tested that they border on mundane. In our legal system, we treat the initial allegations in a lawsuit as true when assessing whether the case can move forward at the outset.”
“It is only after the parties have had the opportunity to gather evidence — from each other, and from other parties with knowledge about the case — that courts examine whether those allegations are true,” Dietz added.
“Here, the claims at issue allege that Governor Cooper took a series of ‘unusual steps’ to single out and shut down Ace Speedway — first by pressuring the local sheriff to arrest Turner and, when the sheriff refused, ordering public health officials to shut down Ace Speedway as a health hazard,” the Supreme Court opinion continued. “The claims also allege that Governor Cooper took these actions not because there was an actual health hazard at the racetrack, but to punish Turner for speaking out, and that health officials did not take similar actions against other large outdoor venues whose owners did not openly criticize the Governor.”
“We emphasize that these allegations remain unproven,” Dietz explained. “After all, the case has barely begun. Still, … these allegations assert colorable claims under the North Carolina Constitution for which there is no alternative remedy. As a result, at this stage of the case, the trial court properly denied the State’s motion to dismiss. We affirm the decision of the Court of Appeals, which in turn affirmed the trial court’s ruling.”
Dietz focused on Ace Speedway’s pursuit of a Corum claim. That’s the legal term for a North Carolina case with a plaintiff suing the government for a violation of state constitutional rights. Plaintiffs cannot pursue a Corum claim if they have another way of addressing the alleged government violation.
“Much of our recent Corum jurisprudence has focused extensively on whether there was an adequate alternative remedy,” Dietz wrote. “Here, though, the State does not dispute that Ace Speedway has no adequate alternative remedy because there is no other forum in which it could seek relief for these constitutional violations. We agree. Likewise, the State does not dispute that the complaint alleges state actors violated the state constitution. Again, we agree.”
The high court addressed the governor’s legal argument that the COVID pandemic justified the shutdown, which took the form of a government abatement order.
“The State contends that there ‘can be little question that the order seeks to achieve “a proper governmental purpose”’ because ‘protecting North Carolinians from a novel virus — a virus that would eventually kill over one million Americans’ is a proper governmental purpose,” Dietz wrote. “But this ignores the central allegation in Ace Speedway’s claim — that the purpose of the abatement order was not to protect public health, but to retaliate against Ace Speedway for criticizing the Governor.”
“Ace Speedway alleges that it was ‘singled out by the Governor for enforcement’ because it spoke out against the Governor’s emergency order, and that other businesses violating the emergency order were not subjected to similar enforcement action by the State,” the opinion continued. “This allegation, if true, would establish that the State did not pursue a proper governmental purpose because its purpose was not to protect the public interest, but to punish a private business for standing up to the government.”
The decision noted Ace Speedway’s claim that other racetracks and “similar businesses” continued to operate as the government shut Ace down.
“Even if we accept the State’s asserted purpose for the abatement order — protecting the public by stopping the spread of COVID-19 — this would mean that the State sought to achieve this governmental purpose by issuing an abatement order shutting down a single business while choosing to ignore many others presenting identical risks to the public,” Dietz wrote. “This is a particularly ineffective means of achieving the asserted governmental interest, while simultaneously imposing a tremendous burden on Ace Speedway.”
Ace Speedway can move forward with claims that Cooper’s shutdown violated track owners’ rights to the “fruits of their own labor” and the equal protection clause of the state constitution.
The state Supreme Court responded to government arguments about Ace Speedway’s pursuit of money damages. “[W]e reject the State’s argument that Ace Speedway’s claims fail because the claims do not seek the least-intrusive remedy. That argument is not ripe for review,” Dietz wrote.
The case will head back to a trial judge for further proceedings.