During the early days of the COVID-19 pandemic, Governor Roy Cooper issued an executive order affecting outdoor venues such as stadiums, concert arenas, and racetracks. This order limited attendance to only twenty-five people, regardless of the venue’s size. Robert Turner, the operator of Ace Speedway in Alamance County, openly defied these restrictions by keeping the racetrack open to all attendees, leading to a series of events that are the subject of a lawsuit.
The lawsuit alleges that Governor Cooper took unusual steps to target and shut down Ace Speedway, including pressuring the local sheriff to arrest Turner and ordering public health officials to close the racetrack as a health hazard. It is claimed that these actions were not taken due to an actual health hazard at the racetrack, but rather to punish Turner for speaking out against the Governor. The lawsuit also argues that similar actions were not taken against other large outdoor venues whose owners did not criticize the Governor.
While these allegations are unproven and the case is in its early stages, they raise colorable claims under the North Carolina Constitution’s “Fruits of Their Labor Clause” which guarantees individuals the right to earn a living. The clause protects people engaging in legitimate business activities and prohibits state actions that burden these activities unless reasonably necessary for public health, morals, order, safety, or general welfare.
To determine the constitutionality of the state action, courts must first identify the actual purpose behind the government’s constraints on private business activity. If the purpose is deemed proper, the court must then assess whether the means chosen to achieve that purpose are reasonable. This analysis involves weighing the public good likely to result from the state action against the burdens imposed on the businesses being regulated.
In summary, the lawsuit against Governor Cooper raises important constitutional issues regarding the right to earn a living and the government’s authority to regulate business activities in the interest of public welfare. The evaluation then becomes a matter of degree – considering all the options available to the state to further the governmental purpose, was it justified for the state to choose this approach, with its associated advantages and disadvantages?
The State argues that there is “little doubt that the order aims to achieve ‘a proper governmental purpose'” as “protecting North Carolinians from a new virus – a virus that would eventually claim the lives of over one million Americans” is indeed a proper governmental purpose.
However, this overlooks the main claim in Ace Speedway’s argument – that the intention of the abatement order was not to safeguard public health, but to retaliate against Ace Speedway for criticizing the Governor. Ace Speedway asserts that it was targeted by the Governor for enforcement because it spoke out against the Governor’s emergency order, and that other businesses breaching the emergency order did not face similar enforcement measures by the State. If true, this claim would demonstrate that the State did not pursue a proper governmental purpose as its intention was not to protect public interest, but to penalize a private business for opposing the government.
During the motion to dismiss stage, we must accept Ace Speedway’s claim as true. Consequently, Ace Speedway has adequately alleged that the State’s actions did not serve a proper governmental purpose.
Moving on to the second part of the test, even if the State had a proper governmental purpose, we need to evaluate whether the means chosen to achieve that purpose were rational. The State argues that the abatement order was reasonably necessary to safeguard public health because “large mass gatherings at places like racetracks posed an elevated risk for spreading COVID-19.” The State further argues that the necessity to use the abatement order to close Ace Speedway was based on “the best scientific and medical knowledge available at the time” to prevent the spread of COVID-19.
However, once again, the State disregards the claims in this constitutional argument. Ace Speedway alleges that other racetracks and similar businesses breached the same emergency order, yet none of those speedways faced similar enforcement measures. Even if we acknowledge the State’s stated purpose for the abatement order – protecting the public by halting the spread of COVID-19 – this would imply that the State aimed to achieve this governmental purpose by issuing an abatement order to shut down a single business while overlooking many others presenting similar risks to the public. This is an especially ineffective method of achieving the asserted governmental interest, while simultaneously imposing a significant burden on Ace Speedway. In essence, weighing the benefits and the burdens of the State’s approach, the State’s decision to target Ace Speedway but disregard other businesses posing identical risks is not reasonable.
Once more, these are mere allegations. However, at this stage, [for the purposes of determining whether the complaint can withstand a motion to dismiss,] we must accept those allegations as true.
The court also determined that the complaint adequately alleged a violation of the North Carolina Constitution’s Equal Protection Clause, as it sufficiently claimed that the government selectively targeted Turner for enforcement because he “exercised his First Amendment rights by openly criticizing Governor Cooper’s emergency order” and “[o]ther, similarly situated racetracks did not face enforcement action even though the State knew that they, too, were violating the emergency order.”
S.C. Kitch (Kitchen Law, PLLC) is representing the challengers.
Source link
