Kinsley v. Ace Speedway Racing

904 S.E.2d 720

Kody KINSLEY, in his official capacity as Secretary of the North Carolina Department of Health and Human Services

v.ACE SPEEDWAY RACING, LTD., After 5 Events, LLC, 1804-1814 Green Street Associates Limited Partnership, Jason Turner, and Robert Turner

No. 280PA22

Supreme Court of North Carolina.

Filed August 23, 2024

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 284 N.C. App. 665, 877 S.E.2d 54 (2022), affirming an order entered on 12 January 2021 by Judge John M. Dunlow in Superior Court, Alamance County. Heard in the Supreme Court on 7 November 2023.

Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, Nicholas S. Brod, Deputy Solicitor General, James W. Whalen, Solicitor General Fellow, John P. Barkley, Special Deputy Attorney General, and Hyrum J. Hemingway, Assistant Attorney General, for plaintiff-appellant.

Kitchen Law, PLLC, by S.C. Kitchen, for defendants-appellees, After 5 Events, LLC, Jason Turner, and Robert Turner.

Ivy A. Johnson and Kristi L. Graunke, for ACLU of North Carolina Legal Foundation, amicus curiae.

Maynard Nexsen PC, by David S. Pokela, Greensboro, and John Mabe, Raleigh, for Association of State and Territorial Health Officials, amicus curiae.

Teague Campbell Dennis & Gorham, by James M. Stanley, Jr. and Matthew W. Skidmore, Raleigh, for North Carolina Association of Local Health Directors, amicus curiae.

Institute for Justice, by Joshua Windham; and Stam Law Firm, by Daniel Gibson, Apex, for Jay Singleton, D.O. and Singleton Vision Center, P.A., amici curiae.

DIETZ, Justice.

In the early days of the COVID-19 pandemic, Governor Roy Cooper declared a state of emergency and issued an executive order affecting outdoor venues such as stadiums, concert arenas, and racetracks. The executive order permitted these venues to stay open but limited attendance to only twenty-five people, regardless of the venue’s size.

Robert Turner, who operated a racetrack in Alamance County known as Ace Speedway, spoke out against these restrictions and told the public that his racetrack would remain open for all attendees. This led to the series of events at issue in this lawsuit.

These events concern matters that are controversial in contemporary politics. 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.

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 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. After all, the case has barely begun. Still, as explained below, 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.

Facts and Procedural History

The following statement of facts is taken from the counterclaims asserting constitutional violations. Under the applicable standard of review, we take these unproven allegations as true for purposes of our review. Deminski v. State Bd. of Educ., 377 N.C. 406, 412, 858 S.E.2d 788 (2021).

In early March 2020, Governor Roy Cooper declared a state of emergency in response to the COVID pandemic. On 20 May 2020, the Governor invoked his emergency authority to issue Executive Order 141. That order temporarily prohibited all "mass gatherings." The order defined a mass gathering as "an event or convening that brings together more than ten (10) people indoors or more than twenty-five (25) people outdoors at the same time in a single confined indoor or outdoor space, such as an auditorium, stadium, arena, or meeting hall." Exec. Order No. 141, 34 N.C. Reg. 2360 (May 20, 2020).

The executive order applied to Ace Speedway, a large outdoor racetrack in Alamance County. Shortly after the Governor announced the executive order, one of Ace Speedway’s owners, Robert Turner, publicly announced that that racetrack would remain open and "have people in the stands."

Turner explained that "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."

As Turner indicated, Ace Speedway hosted its first race of the season on 23 May 2020, shortly after the executive order took effect. That event exceeded the 25-person attendance limit at the racetrack.

Ace Speedway had a second race scheduled for the following week. After learning that the speedway did not comply with the executive order, the Governor reached out to Alamance County Sheriff Terry Johnson. The Governor asked the Sheriff to meet with Ace Speedway and convince the speedway to postpone the upcoming race. As requested, Sheriff Johnson met with Ace Speedway. Nevertheless, the speedway hosted its second race as planned. Following that race, Sheriff Johnson announced that he would not take any further steps to enforce the executive order, citing concerns with the order’s constitutionality.

On 5 June 2020, the Governor sent a letter to the Alamance County Commissioners and to Sheriff Johnson explaining that the races at Ace Speedway violated the executive order and were criminal acts subject to enforcement by local law enforcement officers. The letter warned that if Sheriff Johnson refused to "do his duty" and enforce the executive order, the Governor would take further action.

The letter did not stop Ace Speedway from hosting its third race of the season in early June. Following that third race, the Secretary of the North Carolina Department of Health and Human Services issued an abatement order that required Ace Speedway to close its operations as an "imminent hazard" to public health. The abatement order required Ace Speedway to notify the public that the upcoming races and events at the facility were canceled and confirm in writing to DHHS that the public had been notified of the racetrack’s closure.

Other large venues across the State also permitted more than 25 people to attend their events in violation of the emergency order, but DHHS only issued an abatement order against Ace Speedway. DHHS did not take similar enforcement action against other venues that had not spoken out against Governor Cooper’s policies.

Ace Speedway refused to comply with the abatement order. Just days later, DHHS filed a lawsuit. The complaint named Ace Speedway and its owners and operators as defendants.¹ It sought a declaratory judgment that Ace Speedway violated the abatement order and that the State was entitled to an injunction forcing it to comply.

After a hearing, the trial court issued a preliminary injunction prohibiting Ace Speedway from conducting races and other events at its facilities until it complied with the terms of the abatement order.

As the lawsuit progressed, Ace Speedway and its operators answered the complaint and asserted counterclaims against the State for violation of their constitutional right to earn a living and to be free from selective enforcement of the law.

Later in the year, as the lawsuit continued, the Governor replaced Executive Order 141 with a new executive order that loosened restrictions on mass gatherings. DHHS concluded that this extinguished the existing abatement order. DHHS therefore voluntarily dismissed its claims against Ace Speedway. The State also moved to dismiss the counterclaims on the ground that those claims were barred by sovereign immunity.

The trial court denied the motion to dismiss and the State appealed. The Court of Appeals affirmed the trial court’s order denying the motion. This Court allowed the State’s petition for discretionary review of that decision.

Analysis

I. Standard of Review

[1] We begin our analysis with the appropriate standard of review. The State appealed the trial court’s denial of a motion to dismiss based on sovereign immunity. Ordinarily, a court’s analysis of sovereign immunity focuses not on the merits of the plaintiff’s claim, but on whether the State has "consented or waived its immunity" to being sued. Est. of Graham v. Lambert, 385 N.C. 644, 651, 898 S.E.2d 888 (2024).

[2] But here, the analysis is different because of the nature of the claims. Ace Speedway brought two claims for violations of rights in the North Carolina Constitution. These constitutional claims are known as "Corum claims." See Corum v. Univ. of N.C., 330 N.C. 761, 413 S.E.2d 276 (1992). This Court created Corum claims because of the time-honored principle that where there is a right, there is a remedy. Washington v. Cline, 385 N.C. 824, 825, 898 S.E.2d 667 (2024). "To ensure that every right does indeed have a remedy in our court system, Corum offers a common law cause of action when existing relief does not sufficiently redress a violation of a particular constitutional right." Askew v. City of Kinston, 902 S.E.2d 722, 728 (2024) (cleaned up).

[3, 4] I...