North Carolina court says speedway can sue top health official over COVID-19 closure

RALEIGH, N.C. (AP) — A North Carolina racetrack shuttered briefly for defying state gathering limits during the pandemic can sue the top health regulator on allegations that Gov. Roy Cooper's administration violated the constitutional rights of its operators by trying to make an example out of it, the state Supreme Court ruled Friday.

The justices agreed unanimously that counterclaims that Ace Speedway in Alamance County and its owners filed seeking financial damages can continue, agreeing with a Court of Appeals panel in 2022 and a trial judge that refused to throw them out. That lawsuit was filed weeks after a judge in 2020 helped enforce then-Health and Human Services Secretary Mandy Cohen's order to stop the track from holding events unless they complied with Cooper's statewide executive order that included crowd-size limits.

State lawyers representing Kody Kinsley — Cohen’s successor — argued the speedway was cited because it repeatedly and publicly violated the law, and that sovereign immunity blocks such litigation against a state official. They also said COVID-19 gathering limits were temporary and served a proper governmental purpose to protect the public during the “early and uncertain stages of an unprecedented global pandemic.”

But the Supreme Court agreed the speedway’s attorney made plausible legal claims that the state infringed on rights for people to enjoy “the fruits of their own labor” and conducted ”unlawful selective enforcement” of its order against the speedway. The substance of those claims have yet to be judged in court.

“We emphasize that these allegations remain unproven,” Associate Justice Richard Dietz wrote in the court's opinion, but “these allegations assert colorable claims under the North Carolina Constitution for which there is no alternative remedy,” and thus litigation is allowed.

The ruling hands a legal defeat to the Democratic governor by a court composed of five registered Republicans and two Democrats. The case now returns to trial court to be heard. The state Department of Health and Human Services is reviewing the decision, a spokesperson said.

Three days after Cooper issued a May 2020 executive order placing a 25-person cap on all outdoor gatherings, Ace Speedway hosted approximately 2,550 spectators for its first race of the season.

Racetrack operator Robert Turner spoke out against the restrictions and said his racetrack would remain open for all attendees. A sign posted on site at a subsequent race that June labeled the 2,000-person gathering a “peaceful protest of injustice and inequality everywhere,” the lawsuit states.

When the short-track speedway continued to draw crowds of 1,000 or more, Cooper's office ordered the Alamance County sheriff to intervene. After the sheriff refused, the Cooper administration declared Ace Speedway an “imminent hazard” for the spread of COVID-19 and called for its closure until the order expired. Turner alleged that Cooper treated his business differently than other outdoor venues because of his vocal opposition.

Such restrictions have long expired. State attorneys argued if counterclaims were allowed to continue, they would “hamstring the government’s ability to effectively address future public health crises and other emergencies,” Kinsley’s legal brief read.

Dietz wrote that at this stage of the case the Ace Speedway allegations must be taken as true. And if Cooper did indeed single out the business for enforcement because of Turner's outcry, then the order would have not held a proper governmental purpose, Dietz said.

Chuck Kitchen, an attorney representing the speedway operators, praised Friday's decision, saying the speedway was shut down for nearly an entire racing season.

Other court cases involving the governor's powers in health emergencies are pending.

The state Supreme Court has agreed to hear a pair of cases filed by operators of standalone bars who said Cooper's executive orders forcing them to remain shuttered for safety while restaurants that serve alcohol got to reopen violated the state constitution. Court of Appeals panels have sided with the bar and taverns. Kitchen, who is also representing plaintiffs in one of the bar cases, said the bar litigation could address more broadly whether the executive orders were unlawful even without selective enforcement allegations.

FILE - Hundreds of race fans wait in line to purchase tickets at the Ace Speedway in the rural Alamance County community of Altamahaw near Elon, N.C., on May 23, 2020. (Robert Willett/The News & Observer via AP, File)

BOSTON (AP) — A study that explores the feasibility of using pigeons to guide missiles and one that looks at the swimming abilities of dead fish were among the winners Thursday of this year’s Ig Nobels, the prize for comical scientific achievement.

Held less than a month before the actual Nobel Prizes are announced, the 34th annual Ig Nobel prize ceremony at the Massachusetts Institute of Technology was organized by the Annals of Improbable Research magazine’s website to make people laugh and think. Winners received a transparent box containing historic items related to Murphy’s Law — the theme of the night — and a nearly worthless Zimbabwean $10 trillion bill. Actual Nobel laureates handed the winners their prizes.

“While some politicians were trying to make sensible things sound crazy, scientists discovered some crazy-sounding things that make a lot of sense,” Marc Abrahams, master of ceremonies and editor of the magazine, said in an e-mail interview.

The ceremony started with Kees Moliker, winner of 2003 Ig Noble for biology, giving out safety instructions. His prize was for a study that documented the existence of homosexual necrophilia in mallard ducks.

“This is the duck,” he said, holding up a duck. “This is the dead one.”

After that, someone came on stage wearing a yellow target on their chest and a plastic face mask. Soon, they were inundated with people in the audience throwing paper airplanes at them.

Then, the awards began — several dry presentations which were interrupted by a girl coming on stage and repeatedly yelling “Please stop. I'm bored.” The awards ceremony was also was broken up by an international song competition inspired by Murphy's Law, including one about coleslaw and another about the legal system.

The winners were honored in 10 categories, including for peace and anatomy. Among them were scientists who showed a vine from Chile imitates the shapes of artificial plants nearby and another study that examined whether the hair on people's heads in the Northern Hemisphere swirled in the same direction as someone's hair in the Southern Hemisphere.

Other winners include a group of scientists who showed that fake medicine that causes side effects can be more effective than fake medicine that doesn't cause side effects and one showing that some mammals are cable of breathing through their anus — winners who came on stage wearing a fish-inspired hats.

Julie Skinner Vargas accepted the peace prize on behalf of her late father B.F. Skinner, who wrote the pigeon-missile study. Skinner Vargas is also the head of the B.F. Skinner Foundation.

“I want to thank you for finally acknowledging his most important contribution,” she said. “Thank you for putting the record straight.”

James Liao, a biology professor at the University of Florida, accepted the physics prize for his study demonstrating and explaining the swimming abilities of a dead trout.

“I discovered that a live fish moved more than a dead fish but not by much,” Liao said, holding up a fake fish. “A dead trout towed behind a stick also flaps its tail to the beat of the current like a live fish surfing on swirling eddies, recapturing the energy in its environment. A dead fish does live fish things.”

Professor James Liao displays a stuffed fish while accepting a prize for physics for demonstrating and explaining the swimming abilities of a dead trout during a performance at the Ig Nobel Prize ceremony at Massachusetts Institute of Technology in Cambridge, Mass., Thursday, Sept. 12, 2024. (AP Photo/Steven Senne)

A team of researchers perform a demonstration during a performance showing that many mammals are capable of breathing through their anus while accepting the 2024 Ig Nobel prize in physiology at the Ig Nobel Prize ceremony at Massachusetts Institute of Technology, in Cambridge, Mass., Thursday, Sept. 12, 2024. (AP Photo/Steven Senne)

People in the audience throw paper airplanes toward the stage during a performance at the Ig Nobel Prize ceremony at Massachusetts Institute of Technology in Cambridge, Mass., Thursday, Sept. 12, 2024. (AP Photo/Steven Senne)

FILE - Students walk past the "Great Dome" atop Building 10 on the Massachusetts Institute of Technology campus in Cambridge, Mass, April 3, 2017. (AP Photo/Charles Krupa, File)