This post appears here courtesy of the Carolina Journal
. The author of this post is CJ Staff
State Health and Human Services Secretary Kody Kinsley is responding to legal arguments at the N.C. Supreme Court from owners of Ace Speedway. In a brief filed Monday, Kinsley urges the state's highest court again to end a lawsuit challenging the speedway's forced shutdown in 2020.
"In his opening brief, the Secretary showed that sovereign immunity bars Ace's counterclaims seeking money damages based on the actions that the Secretary took to protect public health during the COVID-19 pandemic,"
wrote N.C. Justice Department lawyers representing Kinsley. "Specifically, the Secretary showed that Ace has failed to allege colorable 'right to earn a living' and selective-enforcement claims."
"He further showed that Ace's claims fail for an independent reason: Money damages from the State Treasury are not 'the least intrusive remedy' that 'minimize[s] ... encroachment upon other branches of government,'"
according to Kinsley's brief.
"Ace's attempts to salvage its claims fall short,"
state lawyers argued.
"First, on the 'right to earn a living' claim, Ace does not dispute that the Secretary's actions here pass the rational-basis test. Nor does Ace ask this Court to overrule its longstanding precedent applying rational-basis review to economic regulations,"
according to Kinsley's brief. "Ace instead invents a new test for reviewing claims of this kind - one that the Court of Appeals below did not apply and that contradicts decades of this Court's precedent."
"Under any standard of review, however, the Secretary's actions were clearly constitutional,"
state lawyers argued. "The Secretary took reasonable, good-faith measures to protect public health during the early and uncertain months of an global pandemic. The Secretary's action followed advice issued by President Trump's public-health officials and aligned with measures taken by neighboring states. And the Secretary's action still allowed Ace to conduct its races while imposing temporary capacity limits that expired only weeks later, as conditions and knowledge of the virus improved."
"With the benefit of hindsight, Ace questions the decision to impose and enforce limits on the number of spectators who could attend its races,"
Kinsley's lawyers wrote. "But in making these arguments, Ace relies on facts that it did not plead in its counterclaims and that are irrelevant under rational-basis review in any event. Courts examine rationality from the perspective of officials when they took the challenged action. And the best evidence available at the time supported the Secretary's expert judgment that mass gatherings like those at Ace Speedway posed a serious threat to public health."
Kinsley challenges Ace's claim that it was targeted for a shutdown. "Ace did not plausibly allege that it was singled out for prosecution,"
the health secretary's lawyers argued. "To the contrary, the Secretary issued an abatement order only after becoming aware that Ace had repeatedly flouted the State's capacity limits in extreme fashion, and only after local officials stated that they would not enforce those limits. No other speedway at the time of the abatement order shared those characteristics."
"It does not violate the Constitution for the State to enforce the law against those who openly violate the law,"
state lawyers argued. "Nor has Ace plausibly alleged that the Secretary acted in bad faith. Ace claims that it was merely 'protesting government policy.' But by its own admission, Ace was going much further than protest - it concedes that it repeatedly broke the law. Ace cannot seek money damages from the State merely by calling its lawbreaking a protest."
"It was entirely consistent with our Constitution for the Secretary to take steps to protect the public from a disease that was threatening to overwhelm our State's health-care system and has now killed over a million Americans,"
according to the state's brief. "Because Ace has failed to show otherwise, its claims should be dismissed."
While Kinsley is named in the Kinsley v. Ace Speedway case, the disputed 2020 shutdown actually took place under orders of Mandy Cohen, Kinsley's predecessor as state health secretary. President Biden confirmed Friday that he is nominating Cohen to serve as director of the federal Centers for Disease Control and Prevention.
Cohen was Gov. Roy Cooper's 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 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."
Ace's latest brief recounts key details of the 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 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 Ace's 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 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,"
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,"
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.