By Mitch Kokai, Carolina Journal

Two years after Gov. Roy Cooper's administration shut down an Alamance County racetrack during the height of the COVID-19 scare, the track's owners continue a legal fight against the state.

A three-judge panel of the N.C. Court of Appeals heard arguments Tuesday in the case. It pits the head of the N.C. Department of Health and Human Services against the owners of Ace Speedway.

The track's owners want the Appeals Court to uphold a trial judge's ruling. The original judge allowed Ace Speedway's lawsuit to proceed. The trial court rejected state lawyers' argument that the case should be dismissed because of sovereign immunity.

Ace Speedway's owners claim they were targeted for a government shutdown in June 2020 because of owner Robert Turner's public comments. Turner had criticized Gov. Roy Cooper's approach to COVID-19 regulations. Cooper's rules included state orders limiting the 5,000-person open-air racetrack to events with no more than 25 spectators. The speedway operated multiple races in defiance of the order.

After starting in June 2020, the shutdown ended by the following September. But legal action continued. Track owners argue that the shutdown violated their right to earn a living. That includes the state constitutional right North Carolinians have to "the enjoyment of the fruits of their own labor."

The lawsuit also argues that Ace Speedway was subjected to selective enforcement. Evidence in the court record suggests other racetracks operated as state officials focused on shutting Ace Speedway down.

"The state does not have the right to go after people because of the exercise of their First Amendment rights," said attorney Chuck Kitchen, representing Ace Speedway. "We have the governor getting mad and saying, 'I'm going after that person.' That's our case. That's what we're alleging."

"That is the definition of selective enforcement — when you have someone with the power of the governor going after individuals that are trying to make a living by operating a speedway, just ordinary people," Kitchen added. "That cannot be the rule of law."

The state argues that legal action against the racetrack in 2020 fell within state government's legitimate approach toward COVID-19's health threat.

"Article I, Section 1 and 19 of our state constitution protects the right to earn a living," said Zachary Ezor, state solicitor general fellow. "But the court has also said time and again that the state may act to regulate or even prohibit economic activity, so long as it does so to advance a proper government purpose and via means which are rationally related to achieving that purpose."

At the time of the shutdown, public health experts and government officials generally agreed that large gatherings of people created heightened risks for spreading COVID-19, Ezor said.

"At the time, the secretary [Mandy Cohen of DHHS] was doing what she thought needed to be done in order to protect against a grave and imminent risk," he said.

Each member of the appellate panel probed the lawyers' arguments.

"What does 'imminent' mean?" Judge Jeff Carpenter asked Ezor. "You used that term twice to define the term."

"I'll just offer you my ordinary, common understanding of 'imminent,' which means immediate, present, ... in your face," Ezor responded.

Judge Jefferson Griffin cited the governor's direct involvement in the Ace Speedway shutdown.

"So when the governor calls a sheriff and ... the sheriff says he's never seen a governor call about a particular enforcement issue in his career, that's not enough to include selective prosecution?" Griffin asked Ezor.

"This was an extraordinary moment in the state's history," Ezor responded. "It's not surprising that in 49 years of law enforcement he had not received a similar call because the situation was dire."

Judge Fred Gore emphasized the difference between the state's focus on statewide COVID numbers and Ace Speedway's emphasis on Alamance County's local conditions. "How can the state argue the rational basis [of its actions] without looking at the perspective of the individual claim from an individual claimant in an individual area of the state, separate and apart from all the other 99 counties?"

If appellate judges rule in Ace Speedway's favor, the case would return to a trial court for further proceedings. There's no timeline for a ruling.