Ace Speedway Closure Lawsuit May Proceed Against DHHS

The court unanimously upheld Friday a unanimous North Carolina Court of Appeals decision from August 2022 that allows Ace Speedway Racing Ltd. and other plaintiffs to move forward with their claims that the state violated their constitutional rights with a pandemic-related shutdown in June 2020.

Racing was allowed to resume in October 2020 after Governor Roy Cooper eased restrictions on public gatherings in September 2020.

The Turners claim that then-Health Secretary Mandy Cohen and Cooper closed Ace not out of concern for public health via an emergency order during the early months of the deadly pandemic.

Instead, they say the shutdown was prompted because father-son duo Robert and Jason Turner were singled out for choosing to defy state COVID-19 restrictions by allowing more than 25 people to gather in a public place.

The Turners fully opened the track to participants for three regular events before the shutdown, attracting more than 2,000 fans on at least one occasion.

The Turners are seeking more than $20,000 in damages. Their attorney, Chuck Kitchen of Kitchen Law PLLC in Swansboro, said Monday that the shutdown cost Ace most of its 2020 weekly season because “they were still paying bills.”

Kitchen declined to say how much money the Turners lost during that time.

The racecourse has a capacity of about 5,000 and needs about 1,000 fans to attend each race to pay its staff of more than 40, the court heard.

The decision, written by Judge Richard Dietz, came about 8 1/2 months after the court heard the case in November. The lawsuit, which was filed Jan. 12, 2021, in Alamance Superior Court, can proceed to trial.

However, Dietz made clear that the Supreme Court was not ruling on the merits of the Turners' claims.

Dietz wrote that the Ace Speedway court case “concerns controversial issues in contemporary politics. We emphasize that these allegations remain unproven. After all, the case is just beginning.”

“Yet…these allegations assert unpleasant claims under the North Carolina Constitution for which there is no other remedy.”

“We conclude that, even assuming the state had an appropriate governmental objective” of protecting public health during a pandemic, “Ace Speedway has adequately alleged that the means chosen by the state to achieve that objective were unreasonable in the circumstances.”

The North Carolina Department of Health and Human Services said Monday that its staff is reviewing the decision.

Cooper spokesman Sam Chan said following the appeals court's August 2022 decision that “the state's duty during a global pandemic was to protect the health and safety of North Carolinians, which it did.”

“The measures taken by the state to address this unprecedented pandemic were appropriate and lawful, and have been consistently upheld by the courts,” Chan said.

Kitchen said Monday that the Supreme Court “said we have a valid cause of action and we have to prove what we have alleged.”

Kitchen said the next steps are discovery and meditation with state health officials that could begin as early as mid-September.

“We're still early in the trial,” Kitchen said.

“Nothing has happened outside of the injunction hearings that involved in-person testimony, so we have a larger case than you typically have at this point. We probably won't have to take as many depositions or do as much discovery.”

The Turner lawsuit represents a countersuit to DHHS, which obtained a preliminary injunction that successfully halted racing after three events were held in defiance of Cooper's executive order.

In June 2020, an Alamance judge ordered owners to stop racing at their track after state health officials said large weekend crowds at races violated Cooper's executive order aimed at curbing the spread of COVID-19.

DHHS filed the lawsuit after Alamance Sheriff Terry Johnson refused to cooperate with Cooper's efforts to stop the races. Johnson had expressed concerns about the constitutionality of the executive order at the time.

When Cooper eased restrictions on public gatherings later in 2020, DHHS voluntarily dropped its lawsuit against the track and its owners in September 2020 and Ace resumed racing in October 2020.

The owners nevertheless continued their lawsuit, claiming that DHHS violated their constitutional right to earn a living and be free from selective enforcement of the law. DHHS invoked sovereign immunity in moving to dismiss the complaint.

The appeals court noted Jason Turner's statement provided to the Burlington Times-News on May 11, 2020.

“I'm going to race and there's going to be people in the stands,” Turner said. “…And unless they can barricade the road, I'm going to do it.

“The racing community wants to race,” Turner said. “They’re tired of politics. People aren’t afraid of something that doesn’t kill people.”

“It may kill 0.03%, but we're dealing with more than that every day, I don't believe it anymore,” Turner said.

When DHHS suspended its weekly COVID-19 dashboard tracking in May 2023, there had been 29,059 COVID-19-related deaths in North Carolina since March 2020, as well as just over 3.5 million confirmed cases.

The total number of cases is likely considerably higher given the number of people who took COVID-19 tests at home and were not required to report them to county or state health officials.

There have been at least 997 COVID-19 deaths in Forsyth County and at least 126,327 confirmed cases, and at least 1,500 COVID-19 deaths in Guilford County and at least 162,234 confirmed cases.