Kinsley v. Ace Speedway Racing, Ltd.

THE DURHAM JURIS

IN THE SUPREME COURT OF NORTH CAROLINA,

By May of 2020, the COVID-19 pandemic had killed hundreds in North Carolina.^[1] Facing a national state of emergency, Governor Roy Cooper issued Executive Order 141, prohibiting any mass gathering that consisted of “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.”^[2]

An owner of the Ace Speedway racetrack in Alamance County, Robert Turner, refused to abide by the order, saying “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”.^[3] Ace Speedway proceeded to hold its first race of the season in violation of Cooper’s policy.

In response, the governor asked the Alamance County Sheriff to meet with Ace Speedway in an effort to postpone further races. An undeterred Ace Speedway held a second race. Governor Cooper then sent a letter to the sheriff, calling the races criminal acts and implying that the state would have to intervene if he could not “do his duty” and enforce the directive.^[4] In a twist of irony, the Sheriff himself had doubts as to the constitutionality of the Executive Order and thus refused to act upon the governor’s request. Ace Speedway held its third race of the year.

The North Carolina Department of Health and Human Services (DHHS) issued an abatement order – a legal document requiring the company to cease business – on the grounds that their operation contributed to a public health crisis.^[5] Establishments throughout the state had held mass gatherings, but Ace Speedway was the only one to receive an abatement order, allegedly for its public opposition to the governor’s pandemic policies.^[6] The racetrack decided to ignore the abatement order as well.

DHHS sued to force Ace Speedway’s compliance with the abatement. Ace Speedway countersued, alleging that the state had acted in violation of the rights to earn a living and to equal protection under the law, rooted in the state constitution’s Declaration of Rights.^[7]

As the pandemic waned, Executive Order 141 was replaced in favor of looser restrictions on public gatherings.^[8] As such, DHHS considered the abatement order null and void, dismissing their lawsuit against Ace Speedway. However, they also moved to throw out Ace Speedway’s counterclaims on the grounds of Sovereign Immunity, a common law principle which holds that a governing body can not be sued without its consent. The trial court denied this motion to dismiss. The Court of Appeals agreed. The state appealed again, and Kinsley v. Ace Speedway Racing Ltd. was heard in the Supreme Court of North Carolina.

Oftentimes the machinery of the law does not operate quite as one might expect. Trial courts are courts that generally hear cases for the first time and try to determine the truth to a disputed matter, including guilt or innocence. In North Carolina, District Courts and Superior Courts fall under this category^[9]. Appellate courts, meanwhile, usually only review cases that have already been tried in a lower court with the purpose of answering an open question of law or determining if there was a miscarriage of justice in the original decision.^[10] The appellate division of North Carolina is composed of a Court of Appeals and a Supreme Court. When suing a department of government, the head of that department is often represented as the defendant. Kody Kinsley was head of the North Carolina Department of Health and Human services at the time the suit was filed, so he lends his name to the title of the case.

The Supreme Court of North Carolina, much like its federal counterpart, is not a fact-finding institution. In a given case, the court is not necessarily interested in determining the truth of a matter, but rather in establishing whether a given interpretation of the law is sound^[11]. The court opened their decision with the acknowledgement that while the political debate within the arguments is certainly controversial, “the legal issues in this appeal…are so time-tested that they border on mundane.”^[12]

The story at the opening of this issue is not a statement of facts. Rather, it is the version of events told by Ace Speedway. However, in the eyes of the court, it is not only beyond their duty to decide whether the aforementioned plot is true or false, but its veracity is irrelevant to their constitutional analysis. Considering the fact that “the case has barely begun”, with allegations completely unproven, the legal issue at hand is as follows: if Ace Speedway’s version of events are completely true, could the state claim the privilege of Sovereign Immunity and refuse consent to the suit?

Sovereign Immunity as a doctrine has a storied history in the United States, predating even the nation itself. Article 3, section 2, of the constitution allows federal courts to settle cases “between a State and Citizens of another State”.^[13] With the landmark Judiciary Act of 1789,^[14] Congress established that such suits would be the original jurisdiction of the Supreme Court (meaning that those issues would be immediately heard by the Supreme Court rather than first being tried in trial court).

In 1793 Alexander Chisholm, a South Carolinian, sued the State of Georgia for payment on goods supplied during the Revolutionary War.^[15] Georgia refused to show up, citing its lack of consent to the lawsuit. The question before the court, therefore, was whether or not Chisholm had the right to sue a state that wasn’t his own. The court ruled that a state could, indeed, be sued by a citizen of another state, and moreover that the court also had original jurisdiction to hear the matter under the Judiciary Act of 1789.^[16] Only Justice Iredell dissented, claiming an affront to the doctrine of Sovereign Immunity.^[17]

Outrage over the decision, and the longstanding common law principle it contradicted, led Congress to rapidly propose and ratify the Eleventh Amendment. The amendment explicitly resolved the cross-state suit controversy as seen in Chisholm.^[18] However, it was only in the 1890 decision of Hans v. Louisiana that Justice Iredell’s opinion was vindicated, with the court ruling that a state can not be sued without its consent in federal court.^[19] In 1999’s Alden v. Maine, this privilege was extended to include suits against States in State courts.^[20]

Given this legal precedent, why is there even a question as to whether Turner can sue North Carolina for alleged infringement upon his constitutional liberties? The answer lies in another case with an equally intriguing story.

In 1984, Dr. Alvis Lee Corum was starting his 14th year as the Dean of Learning Resources at Appalachian State University. In his youth, Dr. Corum played professional baseball in the minor leagues, stopping only to volunteer for service in the Korean War.^[21] After serving for 4 years and attaining the rank of Petty Officer Second Class in the Navy, Corum earned a degree from Appalachian State while serving as class president twice.^[22]

As Dean of Learning Resources, Dr. Corum was responsible for the management of the Appalachian Collection – an assortment of books and physical artifacts representing the culture of the region – housed in a campus library.^[23] ASU administration decided to move the collection, with the Vice Chancellor for Academic Affairs, Dr. Harvey Durham, heading the decision.

Durham decided to separate the artifacts from the rest of the collection to form a new museum. Corum, who wanted to keep the entire collection intact during the relocation, vehemently protested. He created his own plan for the relocation and submitted it to Durham in an attempt to sway his decision.^[24] According to Durham, Corum refused to adhere to the move until Durham folded to his plan. Corum claimed full cooperation, going so far as to say he helped move the collection.^[25]

The next morning Durham approached Corum in his office and removed his Deanship. While Durham considered this punishment for obstructing ASU policy, Corum saw it as retribution for his speech against the initiative. Dr. Corum, citing his constitutional freedom of speech, sued for a return to his position, naming the UNC system and Dr. Durham himself as the defendants.^[26] The case went to the North Carolina Supreme Court, with the monumental Corum v. University of North Carolina decision changing the legal landscape for hundreds of future cases, including Ace Speedway’s.

The court established that the rights protected by the constitution are inherently protections against government intrusion rather than against an individual’s malfeasance. They therefore rejected Corum’s personal claims against Durham.^[27] However, the court’s reasoning also gave rise to a new legal precedent: The Corum claim. The court reasoned that because the constitution enumerates certain protections against government action, so too must there be redress available if those protections are violated. That is, “when there is a clash between these constitutional rights and sovereign immunity, the constitutional rights must prevail”.^[28]

So, what constitutes a Corum claim? To pierce the standard of Sovereign Immunity, a claim must allege a state actor violated the individual’s constitutional rights, the claim must be colorable (provide evidence of the specific constitutional right violated), and there must be no other state remedy for the damages.^[29] Clearly, Ace Speedway claims both state violation of constitutional rights and that there is no other opportunity to get redress from the state. Therefore, the court must only determine whether the claims are colorable. Again, the court must determine, given that Ace Speedway’s unproven allegations are true, whether the state violated their right to make a living and possess equal protection under the law.

Article 1 of the North Carolina Constitution, known as the Declaration of Rights, explicitly restrains government action upon several rights retained by the people. The first section of this article has borrowed language from the Declaration of Independence, with an original clause stating that all persons are entitled to “the enjoyment of the fruits of their own labor”.^[30] A state official may restrict this right, but there must be a governmental purpose for the policy implementation (such as promoting a public good or preventing a public harm). Additionally, the implementation of the policy must be reasonably measured.

As per the state’s intention in the regulation of private business, the court draws a clear distinction between the state’s declared purpose as opposed to an unstated, true purpose. This true purpose is what the court must deem as a proper or improper government aim. In this case the stated purpose of the Abatement Order was to protect North Carolinians from a globally escalating pandemic.

While this is without a doubt in the interest of the general public and thus a proper government action, Ace Speedway posits that the state’s true motivation was to punish a private business for speaking against the Governor’s policies.^[31] Thus, keeping in mind that at this stage of judicial analysis the plaintiff’s claims are considered as truth, the State’s actions do not constitute a proper governmental purpose. As for the second test, the fact that other establishments holding mass gatherings did not receive an abatement order renders the means through which the government enforced their purpose unreasonable. Thus, the court found the claim that the state violated the Fruits of Their Labor Clause to be a valid Corum claim, meaning that Sovereign Immunity does not apply.^[32]

Ace Speedway’s second claim was that Governor Cooper specifically targeted them in violation of the Equal Protection Clause of the North Carolina Constitution^[33]. This clause, akin to its federal counterpart^[34], guarantees equal protection under the laws of North Carolina. The court similarly found this claim to be colorable as the government took discriminatory action in its correspondence with the sheriff and issuance of the abatement despite other mass gatherings throughout the state. Again, the state has no claim to Sovereign Immunity.

Given that Ace Speedway successfully mounted two Corum claims against the state government, the Supreme Court of North Carolina, in agreement with the Trial Court and Court of Appeals, held that Sovereign Immunity does not apply and that the racetrack has the right to litigate for a redress of grievances.^[35]

This decision encapsulates the dynamic role between the Judiciary and the other structures of government. The court system’s role as independent arbitrator is sustained by the fact that each case approximates justice to the best of its ability, with each precedent bringing closer the ideals set out in our founding.^[36] The Court does not intend to find if Governor Cooper bullied private business, if Ace Speedway acted against Executive Order 141, or if Ace Speedway was the only private business to receive an abatement order. The bench’s duty throughout the proceeding is to determine not the truth of the matter, but rather whether or not the plaintiff has the right to pursue said truth in the court of law. Given that “where there is a right, there is a remedy”,^[37] the court determined that it is the justice system’s intrinsic obligation to see this matter arbitrated, regardless of whether that is in the state’s interest as a party.

Our society established this government to ensure continuity of law, not of individuals. An official of the state, acting in their official capacity, exercises the power of the state. It is an absurd notion to suggest that the state is shielded from accountability because the power vested in its institutions was misused by those within. It is true that the functions of government are constituted and executed by individuals, as with all institutions. However, those individuals essentially act as parties of the state when executing, constructing, or interpreting the law, and the state as a system itself is responsible for the collective decisions of the individuals that comprise it. In essence: one cloaked with the power of the state acts as the state.

Yet, there is certainly a balancing act to be considered here. Obviously, few would object to having an interpretation in place that safeguards against selective discriminatory application of the law on behalf of the executive. However, the matter of who determines the application of a statute – and to what extent this power can be exercised – is being rapidly re-examined by the court system. With the recent overruling of Chevron deference^[38], it is a pertinent time to analyze a local shift of administrative agency away from the executive, and perhaps one could even argue that the Court is increasingly becoming a pseudo-legislator. Regardless, the question of governing despite legislative ambiguity is being brought up again across the country, and Kinsley is another facet of this debate.

Sovereign Immunity represents an important protection that allows the United States to preserve continuity in policy without fear of legal ramifications for minute administrative decisions. However, as made clear in Corum, it would be ridiculous to claim “on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.”^[39]

The doctrine itself seems to violate the unspoken contract within our constitutions. If the constitution is a document formed by We The People for the purpose of defining, and often limiting, the scope of government purview, then it follows that when government acts contrary to this agreement, there must be a means to prove that they acted as such and determine appropriate consequences for doing so. Providing for such a means was why we established an independent court system in the first place. The Judicial branch preserves a system of law that is both robust and beyond the tinkering of individual despots.

As per James Madison, “if angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”^[40] The court acts as a check against the ability of those in power to duck repercussions. The court also, crucially, sustains the right of the plaintiff to have their claims tried. Without this restraint upon the interests of the state as a party, the doctrine of Sovereign Immunity would appear less like a tool for the bureaucracy to manage without hindrance, and more like its original foundation in common law: that the king can do no wrong.

The notion of presumption of innocence in the United States provides a crucial backbone for the rights of the accused in criminal trials, a pillar in providing free and fair trials, but the same presumption is not cemented in U.S civil law. Through Kinsley, the Supreme Court of North Carolina reinforces that while the burden of proof lies upon the plaintiff, so too is there equal responsibility to treat the plaintiff’s allegations as true until a court finds otherwise. The dual interests between a defendant’s right to be treated as innocent and a plaintiff’s right to prove otherwise make abundantly clear the value of this decision and the wider principles it represents.

Through designing a system where the interpretation of the law is mostly separate from the creation and implementation of the law, the security of the people is buffered by the Judiciary from intervention of the State.^[41] Nobody, individual nor institution, is above the law of the United States of America and its federal subunits, including those who design and enforce said law.

This case illustrates what is great about our legal institutions: benefit of the doubt, willingness to circumvent state interest if it harms the people, an independent system of arbitration, restraint of government via government’s own institutions, and that disputes on the basis of fact deserve to be heard, argued, and decided within a free and fair system. It also demonstrates something truly remarkable about the great State of North Carolina, something every other state in the Union (and even the Federal Government itself) has yet to fully adopt: when it comes to safeguarding the supreme law of the land, you are prioritized over those in positions of great power. For, ultimately, where there is a right, there must be a remedy.

AFFIRMED

1. ^{CDC COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#trends_totaldeaths_select_37} ↑

2. ^{Executive Order No. 141 NCR 32:24 at 2370} ↑

3. ^{Kinsley v. Ace Speedway Racing Ltd., 386 N.C 418 (2024)} ↑

4. ^Id. ↑

5. ^Id. ↑

6. ^Id. ↑

7. ^{In fact, the Federal Bill of Rights contains language that mirrors much of the Declaration of Rights from North Carolina’s Constitution of 1776, particularly in relation to judicial processes. Early versions of the First, Second, Fifth, Sixth, Seventh, and Eighth amendments can all be found within the document.} ↑

8. ^Id. ↑

9. ^{About North Carolina Courts, https://www.nccourts.gov/about} ↑

10. ^{The appellate court system in general represents another common misconception regarding the American legal system. An Appeal is not an attempt by parties in a suit to claim that a court arrived at the wrong outcome, but rather a motion that the process of law that produced said outcome was flawed.} ↑

11. ^{Types of Courts, https://www.nccourts.gov/learn/types-of-courts} ↑

12. ^{Kinsley, 386 N.C 418 (2024)} ↑

13. ^{U.S Const. art. Ⅲ, §2, cl. 1} ↑

14. ^{Parts of this landmark statute would later be ruled unconstitutional in the famous Marbury v. Madison, the first instance of judicial review. The court’s specific grievance was a clause extending the original jurisdiction of the Supreme Court beyond the scope enumerated in the Constitution.} ↑

15. ^{Chisholm v. Georgia, 2 U.S 419 (1793)} ↑

16. ^Id. ↑

17. ^{Id. at 429} ↑

18. ^{U.S Const. amend. ⅩⅠ} ↑

19. ^{Hans v. Louisiana, 134 U.S 1 (1890)} ↑

20. ^{Alden v. Maine, 527 U.S 706 (1999)} ↑

21. ^{Al Corum Obituary, https://www.legacy.com/us/obituaries/charlotte/name/al-corum-obituary?id=10777603} ↑

22. ^{Alvis Lee Corum, E.d.D, https://omeka.library.appstate.edu/items/show/47976} ↑

23. ^{W.L Eury Appalachian Collection, https://collections.library.appstate.edu/collections/appalachian} ↑

24. ^{Corum v. University of North Carolina, 330 N.C 761 (1992)} ↑

25. ^{Id. at 769} ↑

26. ^{Id. at 770} ↑

27. ^{Much like the oft cited (and interrelated) Gitlow and Schenck cases, Corum personally faced defeat in litigation, but in the act of going to court created a longstanding precedent that would shape the law beyond his individual controversy} ↑

28. ^Id. ↑

29. ^{Kinsley, No. 280PA22, slip op. at 8 (N.C Aug. 23, 2024)} ↑

30. ^{N.C Const. art. Ⅰ, §1, cl. 1} ↑

31. ^{Kinsley, 386 N.C 418 (2024)} ↑

32. ^Id. ↑

33. ^{N.C Const. art. Ⅰ, §19, cl. 1} ↑

34. ^{U.S Const. amend. ⅩⅣ, §1} ↑

35. ^{Kinsley, 386 N.C 418 (2024)} ↑

36. ^{This is moreover sustained by the fact that legal precedence is dynamic, regardless of the philosophies surrounding the static nature of constitutional interpretation. By reversing poor decisions, and perhaps even by instituting mistaken ones, the court both influences the legislature to create laws more in line with the supreme law of the land while inching its own interpretation further from a government composed of individuals and closer to an unattainable government by impartial justice.} ↑

37. ^{Kinsley, 386 N.C 418 (2024)} ↑

38. ^{Loper Bright Enterprises v. Raimondo, 604 U.S __ (2024)} ↑

39. ^{Corum, 330 N.C 786 (1992)} ↑

40. ^{THE FEDERALIST No. 51 (James Madison)} ↑

41. ^{THE FEDERALIST No. 78 (Alexander Hamilton)} ↑