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Judge rules parts of ACE Speedway countersuit against state to proceed

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A visiting superior court judge has agreed to let the owners of ACE Speedway take legal action against the state for the venue’s forcible closure last year due to fears that it could be a breeding ground for coronavirus infections.

Superior Court Judge John Dunlow issued an order on January 12 that allows the speedway’s owners to proceed with two of the five counterclaims that they originally filed last spring when the N.C. Department of Health and Human Services took them to court following a series of well-attended events at the Altamahaw race track.

ACE had staged these races just as the state had begun to emerge from a three-month shutdown of “non-essential” businesses that the governor had initiated last spring to contain the coronavirus pandemic. Although the speedway held these events in line with the guidance of state and local public health officials, the large crowds it drew ultimately raised the eyebrows of higher-ranking authorities, including North Carolina’s governor Roy Cooper, who decried the gatherings as both “dangerous and reckless.”

As ACE continued to hold competitions in spite of the heat it incurred from the state, Mandy Cohen, the state’s secretary of health and human services, formally declared the facility to be a public health nuisance and ordered its immediate closure. This order was later confirmed by Tom Lambeth, Alamance County’s chief resident superior court judge, when he issued a preliminary injunction that shuttered the speedway in June.

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Chuck Kitchen, an attorney for the speedway’s proprietors, told The Alamance News that the state has allowed ACE to open back up since Lambeth issued his ruling on June 24.

“After they filed their complaint and got a preliminary injunction,” he recalled in an interview this week, “they filed a voluntary dismissal of their complaint and let ACE speedway open back up.”

Kitchen added, however, that the lawsuit’s voluntarily dismissal didn’t scotch any of the five counterclaims that he had presented to Lambeth on behalf of his clients. These claims include the argument that the speedway’s owners have the right to earn a living as well as an objection to the state’s apparently selective enforcement of the rules that ACE had allegedly breached.

In his order on January 12, Judge Dunlow agreed to let these two challenges proceed to the pretrial phase of discovery, which allows each side in a case to see the materials that their adversaries plan to show to the court.

Dunlow has allowed these claims to move forward in spite of a motion from the state for the dismissal of all five of the counterclaims. The judge has nevertheless agreed to drop the remaining three counterclaims, which alleged violations of due process as well as procedural lapses related to the state’s notification of the defendants.

Kitchen conceded that the state could ultimately challenge the judge’s decision to allow the first two claims to enter the discovery phase.

“They have a right to appeal on the basis of sovereign immunity,” he added. “I don’t know if they intend to file an appeal. But either they’ll file or we’ll proceed with discovery.”

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