Kinsley v. Ace Speedway Racing ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-524
No. COA21-428
Filed 2 August 2022
Alamance County, No. 20 CVS 1001
KODY H. KINSLEY, in his official Capacity as SECRETARY OF THE NORTH
CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff,
v.
ACE SPEEDWAY RACING, LTD., AFTER 5 EVENTS, LLC, 1804-1814 GREEN
STREET ASSOCIATES LIMITED PARTNERSHIP, JASON TURNER, and ROBERT
TURNER, Defendants.
Appeal by Plaintiff from order entered 12 January 2021 by Judge John M.
Dunlow in Alamance County Superior Court. Heard in the Court of Appeals 8 March
2022.
Solicitor General Ryan Y. Park, by Assistant Solicitor General Nicholas S. Brod
and Solicitor General Fellow Zachary W. Ezor, and Attorney General Joshua
H. Stein, by Assistant Attorney General John P. Barkley, for Plaintiff-
Appellant.
Kitchen Law, PLLC, by S.C. Kitchen, for Defendants-Appellees.
Jeanette K. Doran for amicus curiae North Carolina Institute for Constitutional
Law.
GRIFFIN, Judge.
¶1 This case makes us consider the use of overwhelming power by the State
against the individual liberties of its citizens and how that use of power may be
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challenged. The people of North Carolina recognized the importance of this balance
in ratification of our Constitution in 1868. The challenged act here involves the
closing of a business by a cabinet secretary. Plaintiff Kody H. Kinsley,1 in his official
capacity as Secretary of the North Carolina Department of Health and Human
Services, issued an order of abatement to close a racetrack. The Secretary issued the
abatement order only after the Governor’s use of an executive order and his direct
request to local law enforcement to close the track failed.
¶2 Amidst the onset of the COVID-19 pandemic, the Governor issued executive
orders placing restrictions on the rights of the people of North Carolina to gather.
The Secretary appeals from the trial court’s order denying his motion to dismiss two
counterclaims brought by Defendants Ace Speedway Racing, Ltd, its affiliates, and
its owners. Ace’s counterclaims propose that the Governor’s orders were enforced
upon them without justification and without equal protection of law. Ace’s
counterclaims are constitutional claims alleging (1) executive orders issued by the
Governor in response to the COVID-19 pandemic were an unlawful infringement on
Ace’s right to earn a living as guaranteed by our Constitution’s fruits of labor clause,
and (2) the Secretary’s enforcement actions against Ace under the executive order
1 Secretary Mandy K. Cohen originally filed this appeal in her capacity as Secretary
of the North Carolina Department of Health and Human Services. She has since been
succeeded by Secretary Kinsley. We substitute Secretary Kinsley as party to this appeal in
accordance with N.C. R. App. P. 38(c).
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constituted unlawful selective enforcement. The Secretary argues Ace failed to
present colorable constitutional claims, and therefore failed to overcome the
Secretary’s sovereign immunity from suit.
¶3 In this appeal, we are asked to decide whether Ace has presented colorable
constitutional claims for which our courts could provide a remedy. We hold that Ace
pled each of its constitutional claims sufficiently to survive the Secretary’s motion to
dismiss. We affirm the trial court’s order.
I. Factual and Procedural Background
¶4 Ace operates ACE Speedway in Alamance County as a racetrack, hosting car
races with a maximum audience seating capacity of around 5,000 people. To feasibly
host a race and pay its staff of roughly forty-five employees, Ace needs “around a
thousand fans” to attend each race.
¶5 In March 2020, the COVID-19 virus began spreading across the United States.
State governments across the country began to impose restrictions on their citizens’
right to gather, conduct public activities, and engage in in-person means of commerce.
On 20 May 2020, pursuant to emergency directive authority granted by N.C. Gen.
Stat. § 166A-19.30, Governor Roy Cooper issued Executive Order 141 decreeing, in
relevant part, that “mass gatherings” were temporarily prohibited in North Carolina.
Exec. Order No. 141, 34 N.C. Reg. 2360 (May 20, 2020). Order 141 defined “mass
gatherings” as “an event or convening that brings together more than ten (10) people
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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.” Id.¶6 The mass gathering prohibition in Order 141 nullified Ace’s ability to hold
economically feasible racing events at ACE Speedway. On 22 May 2020, the
Burlington Times-News published an article featuring statements from Defendant
Jason Turner, an owner of ACE Speedway, regarding the restrictions in Order 141
and his plans to nonetheless hold races at ACE Speedway. The article quoted Turner
as follows:
I’m going to race and I’m going to have people in the stands.
. . . And unless they can barricade the road, I’m going to do
it. The racing community wants to race. They’re sick and
tired of the politics. 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.
Ace followed through on Turner’s statement and began to hold races during the
summer of 2020.
¶7 Ace held its first race of the season at ACE Speedway on 23 May 2020. The
event drew an audience of approximately 2,550 spectators. On 15 May 2020, a week
before the first race, Ace met with local health and safety officials. Ace and the local
officials agreed upon health precautions for its events, including contact tracing,
temperature screenings, social distancing in common areas, and reduced and
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distanced audience seating arrangements. With each of its health precautions in
place, Ace held races on May 23, May 30, and June 6, hosting over 1,000 spectators
at each event.
¶8 On 30 May 2020, before that afternoon’s race, the Governor’s office requested
that Alamance County Sheriff Terry Johnson personally ask Ace to stop holding
racing events in violation of Order 141. The Sheriff relayed the Governor’s message
and informed Ace that they could face sanctions if they did not comply. After Ace
held the race on May 30, the Sheriff publicly stated that he would not take any further
actions to enforce Order 141. On 5 June 2020, the Governor’s office sent a letter to
the Sheriff and Ace, once again advising that Ace was conducting racing events in
violation of Order 141 and potentially subject to sanctions. Ace held its third race on
June 6, the following day.
¶9 On 8 June 2020, the Secretary issued an order demanding that Ace abate
further mass gatherings at ACE Speedway. This Abatement Order explained that
Ace had “operated openly in contradiction of the restrictions and recommendations in
[Order 141,]” and, therefore, “immediate action” was necessary to prevent “increased
exposure to thousands of people attending races at ACE Speedway, and thousands
more who may be exposed to COVID-19 by family members, friends, and neighbors
who have attended or will attend races at ACE Speedway.” The Abatement Order
instructed Ace to close its facilities until the expiration of Order 141, or until such
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time as Ace developed a plan to host events in full compliance with Order 141’s mass
gathering restrictions. The Abatement Order also required Ace to “notify the public
by 5:00 p.m. on [9 June 2020] that its upcoming races and other events . . . [were]
cancelled[,]” and to notify DHHS by 5:00 p.m. on June 9 that it had complied. Ace
declined to close its facilities or provide timely notice to the public and DHHS as
required by the Abatement Order.
¶ 10 On 10 June 2020, the Secretary filed a complaint, motion for temporary
restraining order, and motion for preliminary injunction seeking to enforce the terms
of the Abatement Order. On 11 June 2020, Judge D. Thomas Lambeth, Jr., entered
an order granting the Secretary’s temporary restraining order and “enjoined [Ace]
from taking any action to conduct or facilitate a stock car race or other mass gathering
at ACE Speedway[.]” On 10 July 2020, following a hearing on the matter, Judge
Lambeth entered an order granting the Secretary’s motion for preliminary injunction
and enjoining Ace “from taking any action prohibited by the Abatement Order[.]”
¶ 11 On 25 August 2020, Ace filed its answer to the Secretary’s complaint and its
own counterclaims, including the two constitutional claims at issue in this appeal: (1)
infringement upon Ace’s right to earn a living and (2) selective enforcement of Order
141 against Ace.
¶ 12 On 4 September 2020, the Governor issued Executive Order 163, which
replaced Order 141 and loosened Order 141’s mass gathering restrictions to allow a
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total of fifty people in outdoor gatherings. The Secretary voluntarily dismissed his
complaint in this matter against Ace because the terms of the Abatement Order were
moot and no longer enforceable as written. Ace did not dismiss its counterclaims.
¶ 13 On 2 December 2020, the Secretary moved to dismiss Ace’s counterclaims,
arguing that each counterclaim was barred by sovereign immunity from suit. The
trial court heard arguments on the justiciability of each claim. In January 2021,
Judge John M. Dunlow entered an order (the “Denial Order”) denying the Secretary’s
motion to dismiss each of Ace’s constitutional claims.2 The Secretary filed notice of
appeal from the Denial Order on 17 February 2021.
II. Analysis
¶ 14 The matter before us on appeal is whether the trial court erred by denying the
Secretary’s motion to dismiss Ace’s two constitutional counterclaims on grounds of
sovereign immunity from suit.
A. Timeliness of Appeal
¶ 15 We first address the timeliness of the Secretary’s appeal from the denial of his
motion to dismiss Ace’s counterclaims. Ace moves to dismiss the Secretary’s appeal
2On 12 November 2020, Ace amended its counterclaims to assert three additional
counterclaims. Following the hearing on justiciability, the trial court dismissed each
additional counterclaim. Ace does not appeal the dismissal of these three counterclaims.
On 11 February 2021, Ace filed a motion for entry of default judgment against the
Secretary. The trial court entered default judgment against the Secretary, but, following a
hearing on the matter, allowed the Secretary’s motion to set aside default.
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on grounds that the Secretary’s notice of appeal was untimely because he failed to
comply with the terms of Rule 3(c) of the North Carolina Rules of Appellate
Procedure.
¶ 16 “The provisions of Rule 3 are jurisdictional, and failure to follow the rule’s
prerequisites mandates dismissal of an appeal.” Bailey v. State, 353 N.C. 142, 156,
540 S.E.2d 313, 322 (2000) (citation omitted). Rule 3(c) dictates that a party to a civil
action “must file and serve a notice of appeal . . . within thirty days after entry of
judgment [or order] if the party has been served with a copy of the judgment [or order]
within the three-day period [after the order is entered].” N.C. R. App. P. 3(c)(1).
Alternatively, if service was not made within three days, the party must file and serve
a notice of appeal “within thirty days after service upon the party of a copy of the
judgment.” N.C. R. App. P. 3(c)(2). Effective service of a court document must include
a certificate of service showing “the date and method of service or the date of
acceptance of service and shall show the name and service address of each person
upon whom the paper has been served.” N.C. R. Civ. P. 5(b1). In the absence of
properly effected service, the thirty-day period within which the party must file its
appeal begins to run from the date the party obtained actual notice of the order.
Brown v. Swarn, 257 N.C. App. 417, 421, 810 S.E.2d 237, 239 (2018) (“[W]here
evidence in the record shows that the appellant received actual notice of the [order]
more than thirty days before noticing the appeal, the appeal is not timely.”).
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¶ 17 Here, the record shows that the trial court entered the Denial Order on either
15 or 19 January 2021. The file stamp on the Denial Order is unclear and difficult to
read. The record includes a certificate of service for the Denial Order filed on 15
January 2021. However, the trial court determined during the hearing to set aside
entry of default against the Secretary that the package mailed to the Secretary
containing the Denial Order did not include a copy of the certificate of service. The
record does not indicate that the Secretary ever received the certificate of service for
the Denial Order. Without a certificate of service, the Secretary never received
effective service initiating the thirty-day period to file notice of appeal. Instead, the
Secretary received actual notice of the Denial Order when he received the mailed
package. Therefore, the thirty-day period to file notice of appeal from the Denial
Order was tolled until February 4, only thirteen days before the Secretary filed a
timely notice of appeal. This Court has jurisdiction over the Secretary’s appeal.
¶ 18 The Secretary moved to dismiss Ace’s claims under Rules 12(b)(1), 12(b)(2),
and 12(b)(6) of the North Carolina Rules of Civil Procedure, arguing the basis of
sovereign immunity for each. The trial court denied the Secretary’s motion in full.
Nonetheless, the Secretary’s arguments on appeal contend only that Ace failed to
adequately plead its constitutional claims. We will therefore consider only whether
Ace has properly pled claims for relief under Rule 12(b)(6). N.C. R. Civ. P. 12(b)(6)
(allowing a party to defend a claim by contending the claimant “[f]ail[ed] to state a
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claim upon which relief can be granted”).
¶ 19 An appeal from the denial of a motion to dismiss is interlocutory, and
ordinarily not ripe for immediate appellate review unless the appeal affects a
substantial right. Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d
770, 773 (2009). “This Court has consistently held that the denial of a [Rule 12(b)(6)]
motion to dismiss based upon the defense of sovereign immunity affects a substantial
right and is thus immediately appealable.” Richmond Cnty. Bd. of Educ. v. Cowell,
225 N.C. App. 583, 586, 739 S.E.2d 566, 568 (2013) (citation, brackets, and quotation
marks omitted). The Secretary’s appeal is properly before this Court, and Ace’s
motion to dismiss the Secretary’s appeal is denied.3
B. Review of Constitutional Claims and Sovereign Immunity
¶ 20 “This Court reviews a trial court’s decision to grant or deny a motion to dismiss
based upon the doctrine of sovereign immunity using a de novo standard of review.”
State ex rel. Stein v. Kinston Charter Acad., 379 N.C. 560, 2021-NCSC-163, ¶ 23.
“When reviewing a [Rule 12(b)(6)] motion to dismiss, an appellate court considers
whether the allegations of the complaint, if treated as true, are sufficient to state a
claim upon which relief can be granted under some legal theory.” Deminski on behalf
of C.E.D. v. State Bd. of Educ., 377 N.C. 406, 2021-NCSC-58, ¶ 12. (citations and
The Secretary also filed a petition for writ of certiorari in the event that his appeal
3
was deemed untimely. We dismiss the Secretary’s petition as moot.
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quotation marks omitted). North Carolina’s rules of pleading require that a
complaint “state enough to give the substantive elements of a legally recognized
claim.” New Hanover Cnty. Bd. of Educ. v. Stein, 380 N.C. 94, 2022-NCSC-9, ¶ 32.
¶ 21 “As a general rule, the doctrine of governmental, or sovereign[,] immunity bars
actions against . . . the state, its counties, and its public officials sued in their official
capacity.” Bunch v. Britton, 253 N.C. App. 659, 666, 802 S.E.2d 462, 469 (2017)
(citation omitted). However, our Courts have “held that the doctrine of sovereign
immunity cannot stand as a barrier to North Carolina citizens who seek to remedy
violations of their rights guaranteed by the Declaration of Rights of our Constitution.”
Id. (summarizing the North Carolina Supreme Court’s holding in Corum v. Univ. of
N.C. Through Bd. of Governors, 330 N.C. 761, 786, 413 S.E.2d 276, 292 (1992).
“[W]hen there is a clash between . . . constitutional rights and sovereign immunity,
the constitutional rights must prevail.” Corum v. Univ. of N.C. Through Bd. of
Governors, 330 N.C. 761, 786, 413 S.E.2d 276, 292 (1992).
[T]his Court has long held that when public officials invade
or threaten to invade the personal or property rights of a
citizen in disregard of law, they are not relieved from
responsibility by the doctrine of sovereign immunity even
though they act or assume to act under the authority and
pursuant to the directions of the State.
Id.C. Fruits of Their Labor Clause
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¶ 22 Ace’s first constitutional claim alleges infringement of its “inalienable right to
earn a living” under Article I, sections 1 and 19 of the North Carolina Constitution.
Article I states:
Section 1. The equality and rights of persons.
We hold it to be self-evident that all persons are created
equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, the
enjoyment of the fruits of their own labor, and the pursuit
of happiness.
...
Sec. 19. Law of the land; equal protection of the laws.
No person shall be taken, imprisoned, or disseized of his
freehold, liberties, or privileges, or outlawed, or exiled, or
in any manner deprived of his life, liberty, or property, but
by the law of the land. No person shall be denied the equal
protection of the laws; nor shall any person be subjected to
discrimination by the State because of race, color, religion,
or national origin.
N.C. Const. art. 1, §§ 1, 19 (emphasis added). The right to “enjoyment of the fruits of
their own labor” joined the enumeration of each North Carolina citizen’s inalienable
rights as part of revisions to the Constitution in 1868. See N.C. Const. of 1868. The
drafters believed that, in the wake of slavery, no man could truly be free in this state
without the right to both liberty and to reap the benefits of what he sowed. See Albion
W. Tourgée, An Appeal to Caesar 244 (1884). North Carolinians have long valued
and recognized the dignity of work.
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¶ 23 With this in mind, the addition of a right to the fruits of one’s labor to the North
Carolina Constitution sought to increase the floor of protections granted by similar
provisions in the United States federal constitution. U.S. Const. amend. XIV, § 1
(protecting citizens’ rights to “life, liberty, or property” with due process of law). Since
then, our courts have construed North Carolina citizens’ right to the “fruits of their
labor” to be synonymous with their “right to earn a living” in whatever occupation
they desired. See State v. Harris, 216 N.C. 746, 759, 6 S.E.2d 854, 863 (1940) (“[T]he
power to regulate a business or occupation does not necessarily include the power to
exclude persons from engaging in it”). “The right to work and to earn a livelihood is
a property right that cannot be taken away except under the police power of the State
in the paramount public interest for reasons of health, safety, morals, or public
welfare.” Roller v. Allen, 245 N.C. 516, 518, 96 S.E.2d 851, 854 (1957). “‘The right to
conduct a lawful business or to earn a livelihood is regarded as fundamental.’” Id.,245 N.C. at 518–19, 96 S.E.2d at 584 (citation omitted). “Arbitrary interference with
private business and unnecessary restrictions upon lawful occupations are not within
the police powers of the State.” State v. Warren, 252 N.C. 690, 693, 114 S.E.2d 660,
663–64 (1960).
¶ 24 To effectively plead government intrusion on a constitutional right, the
claimant’s pleadings must show: (1) a state actor violated the claimant individual’s
constitutional rights; (2) the claim alleged substantively presents a “colorable”
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constitutional claim; and (3) no adequate state remedy exists apart from a direct
claim under the Constitution. Deminski, 2021-NCSC-58, ¶¶ 15–18.
¶ 25 Here, Ace’s first claim alleged:
124. This counterclaim is brought against the [Secretary]
in [his] official capacity as [he] was acting at all time
relevant hereto as the Secretary of the North Carolina
Department of Health and Human Services.
125. The [Abatement Order] is based on a violation of the
Mass Gathering limits imposed by [Order 141] which
required [Ace] to cease operating.
126. [Order 141 and the Abatement Order] deprive [Ace]
of [its] inalienable right to earn a living as guaranteed by
Art. I, sec. 1 and 19, of the North Carolina Constitution.
...
129. [Order 141] and the [Secretary’s Abatement Order]
based on [Order 141] are unconstitutional as applied to
[Ace] as neither the [Secretary] nor the Governor of the
State possess the authority to deprive [Ace] of [its] right to
pursue an ordinary vocation and earn a living.
130. The [Secretary] does not have sovereign immunity as
this counterclaim is brought directly under the Declaration
of Rights of the North Carolina Constitution.
131. [Ace does] not have an adequate state remedy, and
therefore, there is a direct cause of action against the
[Secretary] for the violation of [Ace’s] rights as guaranteed
by Art. I, sec. 1 and 19, of the North Carolina Constitution.
¶ 26 Ace pled that its rights were violated by the Secretary in his official capacity
as a state actor. Ace also pled its lack of an alternative, adequate state remedy
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through which it could seek relief. We agree that Ace has no other avenue to seek
relief for the Secretary’s allegedly improper enforcement apart from a direct action
under the Constitution.
¶ 27 Ace has also pled a colorable, though admittedly novel, claim for government
intrusion on its right to earn a living. It is well-established that the fruits of their
labor clause applies when our government, most often the legislature, enacts a
scheme of legislation or regulation that purports to protect the public from
undesirable actors within occupations. See Poor Richard’s, Inc. v. Stone, 322 N.C. 61,
65, 366 S.E.2d 697, 699 (1988) (concerning legislation regarding manufacture of goods
for military use); Warren, 252 N.C. at 695, 114 S.E.2d at 665 (1960) (concerning
licensure legislation for real estate brokers); State v. Ballance, 229 N.C. 764, 51
S.E.2d 731 (1949) (concerning legislation creating licensure requirements for
photographers). Likewise, our courts have more recently held that the clause also
applies when a government employer denies a state employee due process with
respect to the terms and procedures of his or her employment. See Mole’ v. City of
Durham, 279 N.C. App. 583, 2021-NCCOA-527, ¶ 29, disc. rev. granted, Mole v. City
of Durham, 868 S.E.2d 851 (N.C. 2022); Tully v. City of Wilmington, 370 N.C. 527,
535–36, 810 S.E.2d 208, 215 (2018) (“Article I, Section 1 also applies when a
governmental entity acts in an arbitrary and capricious manner toward one of its
employees by failing to abide by promotional procedures that the employer itself put
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in place.”). It naturally follows that actions taken by other non-legislative state
actors, whether elected officials or unelected bureaucrats, may run afoul of a citizen’s
right to the fruits of his own labor when they arbitrarily interfere with occupations,
professions, or the operation of business.
¶ 28 The core principle behind the fruits of their labor clause is that government
“‘may not, under the guise of protecting the public interests, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon lawful
occupations.’” Cheek v. City of Charlotte, 273 N.C. 293, 296, 160 S.E.2d 18, 21 (1968)
(quoting Lawton v. Stell, 152 U.S. 133, 137 (1894)). The present case involves
enforcement action taken under the authority of an executive order issued by the
Governor, rather than laws promulgated by the legislature. The intended purpose of
the Governor’s order was not to regulate a particular occupation or business
enterprise, but the direct and intended purpose of the Abatement Order was to cease
the operation of a business. It cannot be denied that the scope and breadth of the
Abatement Order restricted or otherwise interfered with the lawful operation of a
business serving the public.
¶ 29 The Secretary argues that Ace’s first claim should be decided at the 12(b)(6)
stage as a matter of law. To this end, the Secretary contends that this Court may
take judicial notice of factual data surrounding the COVID-19 pandemic at the time
the Abatement Order was issued, which will unequivocally support the Secretary’s
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decisions. See Rhyne v. K-Mart Corp., 358 N.C. 160, 182, 594 S.E.2d 1, 16 (2004)
(stating this Court may consider all matters before the state actor as well as matters
of which it may take judicial notice when reviewing constitutionality). We disagree.
Ace pled that the Abatement Order was the foundational authorization to force Ace
to cease operating its racetrack and that the was Order unconstitutional as applied
to Ace. An examination of the facts surrounding the COVID-19 pandemic at a later
stage of trial may show that Ace’s precautionary measures to manage contact tracing
of its attendees; install plexiglass, touchless thermometers, six-feet distance markers,
and screening booths; and to initiate vigilant cleaning procedures—all in consult with
local health officials—were sufficient to combat the spread of COVID-19 within an
open-air racetrack in Alamance County. Presuming these facts in favor of Ace as the
non-movant, the reasonableness of an “imminent hazard” as justification for the
Secretary’s actions can be questioned. We hold that Ace adequately pled that the
Secretary, through his Abatement Order, deprived Ace of its constitutional right to
the fruits of one’s own labor and, therefore, sovereign immunity cannot bar Ace’s
claim. Deminski, 2021-NCSC-58, ¶ 21.
D. Selective Enforcement
¶ 30 Ace’s second constitutional claim alleges that the Secretary’s Abatement
Order, levied against Ace and no other speedways, ran afoul of Article 1, section 19’s
decree that “[n]o person shall be denied the equal protection of the laws[.]” N.C.
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Const. art. 1, § 19. Through its second claim, Ace once again sufficiently pleads a
constitutional challenge to the Secretary’s method of enforcing Order 141.
¶ 31 Selective enforcement of the law by the State is barred by an individual’s right
to equal protection when enforcement is based upon an arbitrary classification. State
v. Garner, 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995) (citations omitted). “Such
arbitrary classifications include prosecution due to a defendant’s decision to exercise
his statutory or constitutional rights.” Id. (citing United States v. Goodwin, 457 U.S.
368, ___ (1982)); Roller, 245 N.C. at 518, 96 S.E.2d at 854 (stating right to earn a
living is a constitutional right). Our Supreme Court has set out the two-part test for
selective enforcement as (1) a singling out of the defendant for (2) discriminatory,
invidious reasons:
The generally recognized two-part test to show
discriminatory selective prosecution is (1) the defendant
must make a prima facie showing that he has been singled
out for prosecution while others similarly situated and
committing the same acts have not; (2) upon satisfying (1)
above, he must demonstrate that the discriminatory
selection for prosecution was invidious and done in bad
faith in that it rests upon such impermissible
considerations as race, religion, or the desire to prevent his
exercise of constitutional rights.
State v. Howard, 78 N.C. App. 262, 266–67, 337 S.E.2d 598, 601–02 (1985) (citations
omitted). “Mere laxity in enforcement does not satisfy the elements of a claim of
selective or discriminatory enforcement in violation of the equal protection clause.”
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Grace Baptist Church of Oxford v. City of Oxford, 320 N.C. 439, 445, 358 S.E.2d 372,
376 (1987). Rather, the claimant must show that a state actor applied the law with
“a pattern of conscious discrimination” evidencing administration “with an evil eye
and an unequal hand.” Id. (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886))
(some citations omitted).
¶ 32 Ace’s claim alleged:
136. Many speedways in addition to ACE Speedway have
been conducting races with fans in attendance without any
enforcement action by the [Secretary].
137. [Ace was] singled out by the Governor for enforcement
after comments . . . made by Defendant Robert Turner[]
were made public.
138. The Governor took the unusual step of having a letter
sent to the Sheriff of Alamance County directing him to
take action against [Ace].
139. [Ace is] informed and believe that no other [s]peedway
has been the subject of an Order of Abatement of Imminent
Hazard by the [Secretary].
140. [Ace is] informed and believe[s] that the [Abatement
Order] was issued by the [Secretary] . . . due to the
statements of Defendant Robert Turner and not because a
true Imminent Hazard exists.
141. The issuance of the [Abatement Order] violates the
equal protection rights of [Ace] as guaranteed by Article I,
Section 19 of the North Carolina Constitution.
142. The [Secretary] does not have sovereign immunity as
this counterclaim is brought directly under the Declaration
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of Rights of the North Carolina Constitution.
143. [Ace does] not have an adequate state remedy, and
therefore, there is a direct cause of action against the
[Secretary] for the violation of [Ace’s] rights as guaranteed
by Art. I, sec. 19, of the North Carolina Constitution.
¶ 33 Ace once again pleads that its rights were violated by the Secretary in his
official capacity as a state actor, and that it has no avenue for redress other than an
action under the Constitution.
¶ 34 With respect to whether Ace’s substantive claim is colorable, the Secretary
argues that Ace failed to plead both (1) that it was “singled out” for prosecution while
“similarly situated” to other raceways, and (2) that the Secretary acted invidiously in
“bad faith.” The Secretary’s argument places special emphasis on Ace’s failure to
track specific language in pleading its claim. We have held that a party need not use
magic words to plead the substantive elements of its claim. See Feltman v. City of
Wilson, 238 N.C. App. 246, 253–54, 767 S.E.2d 615, 621 (2014); see also State v. Dale,
245 N.C. App. 497, 504, 783 S.E.2d 222, 227 (2016) (“This notice pleading has replaced
the use of ‘magic words’ and allows for a less exacting standard, so long as the
defendant is properly advised of the charge against him or her.”). A pleading is
sufficient “if it gives sufficient notice of the events or transactions which produced the
claim to enable the adverse party to understand the nature of it and the basis for it,
to file a responsive pleading, and—by using the rules provided for obtaining pretrial
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discovery—to get any additional information he may need to prepare for trial.”
Sutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970) (“Under the ‘notice
theory’ of pleading contemplated by [N.C. R. Civ P.] 8(a)(1), detailed fact-pleading is
no longer required.”).
¶ 35 The Secretary’s argument fails. Ace pled “enough to give the substantive
elements of a legally recognized claim” for selective enforcement. See Stein, 2022-
NCSC-9, ¶ 32. Ace effectively pled that it was among a class of “many speedways”
that similarly conducted races with fans in attendance during the period where such
actions were banned by Order 141. Ace further pled that Governor Cooper and the
Secretary “singled out” Ace for enforcement by directing the Sheriff to take action
against Ace and, when that failed, by issuing the Abatement Order against Ace alone.
Finally, Ace’s complaint pled its belief that it was singled out for enforcement in
response to Defendant Turner’s statements to the press “and not because a true
Imminent Hazard exist[ed,]” as the Secretary asserted in the Abatement Order.
These pleadings, taken as true, sufficiently allege bad faith enforcement of Order 141
against Ace alone.
¶ 36 The Secretary contends that Ace’s pled discriminatory reason for his
enforcement of Order 141—retaliation for statements made to the press critiquing
Order 141—is insufficient to plead selective enforcement. The Secretary cites State
v. Davis, 96 N.C. App. 545, 550, 386 S.E.2d 743, 745 (1989), for support. In Davis,
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following his conviction for tax-related offenses, the defendant argued on appeal that
he was selectively prosecuted based upon “invidious discrimination” because he
belonged to a political group that routinely and openly protested personal income tax
laws. Id. at 548–49, 386 S.E.2d at 744. This Court ruled that the defendant’s
evidence at trial failed to show more than a tenuous relationship between his
association with the anti-tax political group and the State’s decision to prosecute him
instead of any number of other citizens who failed to file their tax returns. Therefore,
the defendant could not show he was “singled out” for prosecution. Id. at 549, 386
S.E.2d at 744–45.
¶ 37 Further, and most relevant to the present case, the Court held that the
defendant presented “a feckless argument that the statutes he was charged under
[were] unconstitutional as applied to him because selection for his prosecution was
impermissibly based on an attempt to suppress his first amendment right of free
speech.” Id. at 549, 386 S.E.2d at 745. Even assuming that the defendant was singled
out for his vocal protest of income taxes, the Court found no invidiousness or bad faith
because “such prosecutions, predicated in part upon a potential deterrent effect, serve
a legitimate interest in promoting more general tax compliance.” Id. at 550, 386
S.E.2d at 745.
¶ 38 The facts of Davis are similar to the facts of the present case. Ace pleads that
it was selected for enforcement by the Secretary because its owner was outspokenly
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critical of Order 141. The Secretary asserts that Ace must fail for the same reason
the defendant’s argument failed in Davis: regardless of possible alternative reasons
for enforcement, singling out outspoken individuals has a strong deterrent effect upon
those who are similarly situated and choose similar courses of action.
¶ 39 The present case must be distinguished from Davis based upon the relevant
stage of the proceedings. The Court in Davis reached its holding following appellate
review of evidence admitted during a full trial, and after determining that any effort
to reduce the defendant’s speech was, at most, an equal and alternative purpose to
deterrence of criminal conduct. Here, we are tasked only with determining whether
Ace has sufficiently pled the substantive elements of its claim. Ace has pled that the
Secretary acted based solely upon an effort to silence its opposition to Order 141, and
not based upon any alternative, legitimate state interest. The resolution of this
question is not before us at this time. Ace has sufficiently pled that the Secretary
singled its racetrack out for enforcement in bad faith for the invidious purpose of
silencing its lawful expression of discontent with the Governor’s actions. Therefore,
sovereign immunity cannot bar Ace’s claim.
III. Conclusion
¶ 40 We hold that Ace pled colorable claims for infringement of its right to earn a
living and for selective enforcement of the Governor’s orders sufficient to survive the
Secretary’s motion to dismiss.
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AFFIRMED.
Judges CARPENTER and GORE concur.