IN THE SUPREME COURT OF NORTH CAROLINA
No. 280PA22
Filed 23 August 2024
KODY KINSLEY, in his official capacity as SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES
v. ACE SPEEDWAY RACING, LTD., AFTER 5 EVENTS, LLC, 1804-1814 GREEN STREET ASSOCIATES LIMITED PARTNERSHIP, JASON TURNER, and ROBERT TURNER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 284 N.C. App. 665 (2022), affirming an order entered on 12
January 2021 by Judge John M. Dunlow in Superior Court, Alamance County. Heard
in the Supreme Court on 7 November 2023.
Joshua H. Stein, Attorney General, by Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, Nicholas S. Brod, Deputy Solicitor General, James W. Whalen, Solicitor General Fellow, John P. Barkley, Special Deputy Attorney General, and Hyrum J. Hemingway, Assistant Attorney General, for plaintiff-appellant.
Kitchen Law, PLLC, by S.C. Kitchen, for defendants-appellees, After 5 Events, LLC, Jason Turner, and Robert Turner.
Ivy A. Johnson and Kristi L. Graunke for ACLU of North Carolina Legal Foundation, amicus curiae.
Maynard Nexsen PC, by David S. Pokela and John Mabe, for Association of State and Territorial Health Officials, amicus curiae.
Teague Campbell Dennis & Gorham, by James M. Stanley, Jr. and Matthew W. Skidmore, for North Carolina Association of Local Health Directors, amicus curiae. KINSLEY v. ACE SPEEDWAY RACING, LTD.
Opinion of the Court
Institute for Justice, by Joshua Windham; and Stam Law Firm, by Daniel Gibson, for Jay Singleton, D.O. and Singleton Vision Center, P.A., amici curiae.
DIETZ, Justice.
In the early days of the COVID-19 pandemic, Governor Roy Cooper declared a
state of emergency and issued an executive order affecting outdoor venues such as
stadiums, concert arenas, and racetracks. The executive order permitted these
venues to stay open but limited attendance to only twenty-five people, regardless of
the venue’s size.
Robert Turner, who operated a racetrack in Alamance County known as Ace
Speedway, spoke out against these restrictions and told the public that his racetrack
would remain open for all attendees. This led to the series of events at issue in this
lawsuit.
These events concern matters that are controversial in contemporary politics.
The legal issues in this appeal, by contrast, are so time-tested that they border on
mundane. In our legal system, we treat the initial allegations in a lawsuit as true
when assessing whether the case can move forward at the outset. It is only after the
parties have had the opportunity to gather evidence—from each other, and from other
parties with knowledge about the case—that courts examine whether those
allegations are true.
Here, the claims at issue allege that Governor Cooper took a series of “unusual
-2- KINSLEY v. ACE SPEEDWAY RACING, LTD.
steps” to single out and shut down Ace Speedway—first by pressuring the local sheriff
to arrest Turner and, when the sheriff refused, ordering public health officials to shut
down Ace Speedway as a health hazard. The claims also allege that Governor Cooper
took these actions not because there was an actual health hazard at the racetrack,
but to punish Turner for speaking out, and that health officials did not take similar
actions against other large outdoor venues whose owners did not openly criticize the
Governor.
We emphasize that these allegations remain unproven. After all, the case has
barely begun. Still, as explained below, these allegations assert colorable claims
under the North Carolina Constitution for which there is no alternative remedy. As
a result, at this stage of the case, the trial court properly denied the State’s motion to
dismiss. We affirm the decision of the Court of Appeals, which in turn affirmed the
trial court’s ruling.
Facts and Procedural History
The following statement of facts is taken from the counterclaims asserting
constitutional violations. Under the applicable standard of review, we take these
unproven allegations as true for purposes of our review. Deminski v. State Bd. of
Educ., 377 N.C. 406, 412 (2021).
In early March 2020, Governor Roy Cooper declared a state of emergency in
response to the COVID pandemic. On 20 May 2020, the Governor invoked his
emergency authority to issue Executive Order 141. That order temporarily prohibited
-3- KINSLEY v. ACE SPEEDWAY RACING, LTD.
all “mass gatherings.” The order defined a mass gathering as “an event or convening
that brings together 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.” Exec. Order No. 141, 34 N.C. Reg.
2360 (May 20, 2020).
The executive order applied to Ace Speedway, a large outdoor racetrack in
Alamance County. Shortly after the Governor announced the executive order, one of
Ace Speedway’s owners, Robert Turner, publicly announced that that racetrack
would remain open and “have people in the stands.”
Turner explained that “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.”
As Turner indicated, Ace Speedway hosted its first race of the season on 23
May 2020, shortly after the executive order took effect. That event exceeded the 25-
person attendance limit at the racetrack.
Ace Speedway had a second race scheduled for the following week. After
learning that the speedway did not comply with the executive order, the Governor
reached out to Alamance County Sheriff Terry Johnson. The Governor asked the
Sheriff to meet with Ace Speedway and convince the speedway to postpone the
upcoming race. As requested, Sheriff Johnson met with Ace Speedway. Nevertheless,
-4- KINSLEY v. ACE SPEEDWAY RACING, LTD.
the speedway hosted its second race as planned. Following that race, Sheriff Johnson
announced that he would not take any further steps to enforce the executive order,
citing concerns with the order’s constitutionality.
On 5 June 2020, the Governor sent a letter to the Alamance County
Commissioners and to Sheriff Johnson explaining that the races at Ace Speedway
violated the executive order and were criminal acts subject to enforcement by local
law enforcement officers. The letter warned that if Sheriff Johnson refused to “do his
duty” and enforce the executive order, the Governor would take further action.
The letter did not stop Ace Speedway from hosting its third race of the season
in early June. Following that third race, the Secretary of the North Carolina
Department of Health and Human Services issued an abatement order that required
Ace Speedway to close its operations as an “imminent hazard” to public health. The
abatement order required Ace Speedway to notify the public that the upcoming races
and events at the facility were canceled and confirm in writing to DHHS that the
public had been notified of the racetrack’s closure.
Other large venues across the State also permitted more than 25 people to
attend their events in violation of the emergency order, but DHHS only issued an
abatement order against Ace Speedway. DHHS did not take similar enforcement
action against other venues that had not spoken out against Governor Cooper’s
policies.
Ace Speedway refused to comply with the abatement order. Just days later,
-5- KINSLEY v. ACE SPEEDWAY RACING, LTD.
DHHS filed a lawsuit. The complaint named Ace Speedway and its owners and
operators as defendants.1 It sought a declaratory judgment that Ace Speedway
violated the abatement order and that the State was entitled to an injunction forcing
it to comply.
After a hearing, the trial court issued a preliminary injunction prohibiting Ace
Speedway from conducting races and other events at its facilities until it complied
with the terms of the abatement order.
As the lawsuit progressed, Ace Speedway and its operators answered the
complaint and asserted counterclaims against the State for violation of their
constitutional right to earn a living and to be free from selective enforcement of the
law.
Later in the year, as the lawsuit continued, the Governor replaced Executive
Order 141 with a new executive order that loosened restrictions on mass gatherings.
DHHS concluded that this extinguished the existing abatement order. DHHS
therefore voluntarily dismissed its claims against Ace Speedway. The State also
moved to dismiss the counterclaims on the ground that those claims were barred by
sovereign immunity.
The trial court denied the motion to dismiss and the State appealed. The Court
of Appeals affirmed the trial court’s order denying the motion. This Court allowed the
State’s petition for discretionary review of that decision.
1 For ease of reading, we will refer to the defendants collectively as “Ace Speedway.”
-6- KINSLEY v. ACE SPEEDWAY RACING, LTD.
Analysis
I. Standard of Review
We begin our analysis with the appropriate standard of review. The State
appealed the trial court’s denial of a motion to dismiss based on sovereign immunity.
Ordinarily, a court’s analysis of sovereign immunity focuses not on the merits of the
plaintiff’s claim, but on whether the State has “consented or waived its immunity” to
being sued. Est. of Graham v. Lambert, 385 N.C. 644, 651 (2024).
But here, the analysis is different because of the nature of the claims. Ace
Speedway brought two claims for violations of rights in the North Carolina
Constitution. These constitutional claims are known as “Corum claims.” See Corum
v. Univ. of N.C., 330 N.C. 761 (1992). This Court created Corum claims because of the
time-honored principle that where there is a right, there is a remedy. Washington v.
Cline, 385 N.C. 824, 825 (2024). “To ensure that every right does indeed have a
remedy in our court system, Corum offers a common law cause of action when existing
relief does not sufficiently redress a violation of a particular constitutional right.”
Askew v. City of Kinston, 902 S.E.2d 722, 728 (2024) (cleaned up).
Importantly, the State cannot assert sovereign immunity as a defense to a
valid Corum claim. As we explained in Corum, when there is “a clash between these
constitutional rights and sovereign immunity, the constitutional rights must prevail.”
Corum, 330 N.C. at 786. Thus, sovereign immunity “cannot stand as a barrier” to a
Corum claim. Id. at 785.
-7- KINSLEY v. ACE SPEEDWAY RACING, LTD.
But it is not enough for a claimant to simply assert that a claim is valid under
Corum. We have acknowledged that, to pierce the State’s sovereign immunity at the
outset, the complaint must “sufficiently allege” a Corum claim. Deminski, 377 N.C.
at 407.
In Deminski, we outlined three criteria necessary to sufficiently allege a Corum
claim. First, the complaint must allege that a state actor violated the claimant’s state
constitutional rights. Id. at 413. Second, “the claim must be colorable,” meaning that
the claim “must present facts sufficient to support an alleged violation of a right
protected by the State Constitution.” Id. Third, there must be no other “adequate
state remedy” for this alleged constitutional violation. Id. If a claimant satisfies these
three criteria, sovereign immunity “does not bar the claim” and the trial court must
deny a motion to dismiss based on sovereign immunity. Id. at 407.
Much of our recent Corum jurisprudence has focused extensively on whether
there was an adequate alternative remedy. See, e.g., Askew, 902 S.E.2d at 733;
Washington, 385 N.C. at 825. Here, though, the State does not dispute that Ace
Speedway has no adequate alternative remedy because there is no other forum in
which it could seek relief for these constitutional violations. We agree. Likewise, the
State does not dispute that the complaint alleges state actors violated the state
constitution. Again, we agree.
Thus, the first and third criteria of the test we set out in Deminski are satisfied.
The State’s arguments (and, as a result, this entire appeal) focuses solely on the
-8- KINSLEY v. ACE SPEEDWAY RACING, LTD.
second criteria—whether Ace Speedway asserted a “colorable claim” under the state
constitution.
As we made clear in Deminski, at the motion to dismiss stage, whether a claim
is “colorable” focuses entirely on the allegations in the complaint. Deminski, 377 N.C.
at 412. Those allegations are “treated as true” and the Court examines whether the
allegations, if proven, constitute a violation of a right protected by the North Carolina
Constitution. Id. We therefore examine each of Ace Speedway’s constitutional claims
and assess whether the allegations assert colorable constitutional claims.
II. Fruits of Their Labor Clause
We begin with Ace Speedway’s claim that the State deprived the speedway and
its owners of their inalienable right to earn a living guaranteed by the provision of
Article I, Section 1 of the North Carolina Constitution known as the “Fruits of Their
Labor Clause.”
Article I, Section 1 provides as follows: “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.” N.C. Const. art. I, § 1.
This language, added in our state’s 1868 constitution, “borrowed certain
phraseology from the Declaration of Independence.” State v. Ballance, 229 N.C. 764,
768 (1949). But the framers also added something new, described in Ballance as an
“interpolation”—the people’s inalienable right to “the enjoyment of the fruits of their
-9- KINSLEY v. ACE SPEEDWAY RACING, LTD.
own labor.” Id.
We explained in Ballance that this added constitutional right protects people
“engaging in any legitimate business, occupation, or trade.” Id. at 770. It bars state
action burdening these activities unless “the promotion or protection of the public
health, morals, order, or safety, or the general welfare makes it reasonably
necessary.” Id.
Thus, to survive constitutional scrutiny under this provision, the challenged
state action “must be reasonably necessary to promote the accomplishment of a public
good, or to prevent the infliction of a public harm.” Id. This test involves a “twofold”
inquiry: “(1) is there a proper governmental purpose for the statute, and (2) are the
means chosen to effect that purpose reasonable?” Poor Richard’s, Inc. v. Stone, 322
N.C. 61, 64 (1988).
The first step in this inquiry requires the reviewing court to identify the State’s
actual purpose for the constraint on private business activity. Initially, the State may
simply assert that purpose, without the need to “come forward with evidence” proving
that it is, indeed, the true purpose. Id. at 66. But the plaintiff may rebut that
assertion with evidence demonstrating that the State’s asserted purpose is not the
true one, and instead the State is pursuing a different, unstated purpose. Id.
For example, in Roller v. Allen, the State defended licensing requirements for
ceramic tile installers by asserting that they were necessary to combat consumer
fraud by unqualified workers. 245 N.C. 516, 521–23 (1957). After reviewing the
-10- KINSLEY v. ACE SPEEDWAY RACING, LTD.
evidence, this Court rejected that assertion, holding that the statute’s “main and
controlling purpose” was “not health, not safety, not morals, not welfare, but a tight
control of tile contracting in perpetuity by those already in the business.” Id. at 525.
Simply put, courts assess Fruits of Their Labor Clause claims based on the actual
purpose of the state action, and that may not always be the purpose initially put
forward by the State.
Once the actual purpose of the challenged state action is identified, the
reviewing court must then assess whether that purpose is a “proper governmental
purpose.” Poor Richard’s, 322 N.C. at 64. Proper purposes are those that “promote
the accomplishment of a public good, or to prevent the infliction of a public harm.”
Ballance, 229 N.C. at 770. It is, of course, impossible to enumerate every public good
or public harm. But our case law offers guidance on how to determine if a purpose is
broad enough that it addresses public welfare generally, rather than private
interests. Id. at 770–71.
In Ballance, for example, this Court rejected the notion that it was a public
good to reduce “fire risk incident to the practice of photography on account of
combustible materials employed.” Id. at 771. That purpose was too narrow to serve
the public welfare generally. It addressed only “the interests of a particular class
rather than the good of society as a whole.” Id. at 772.
Put another way, reducing fire risks for all members of the public is a proper
governmental purpose. And, if a particular business activity poses a heightened risk
-11- KINSLEY v. ACE SPEEDWAY RACING, LTD.
of fire hazards, regulating that specific activity may be a reasonable means of
advancing the broader purpose, even if it only impacts a subset of the public. See id.
But a proper governmental purpose must address the “public interest.” Protecting the
public from fire hazards is in the public interest. Protecting only photography
businesses from fire hazards, with no concern for anyone else, is merely a regulation
of “a private business unaffected in a legal sense with any public interest.” Id. at 770.
If the reviewing court determines that the challenged state action serves a
proper governmental purpose, the inquiry then reaches the second stage: “are the
means chosen to effect that purpose reasonable?” Poor Richard’s, 322 N.C. at 64. This
is a fact-intensive analysis. “The means used must be measured by balancing the
public good likely to result from their utilization against the burdens resulting to the
businesses being regulated.” Id. at 66.
This requires assessing two fact-specific questions—first, how effective is the
state action at achieving the desired public purpose and, second, how burdensome is
that state action to the targeted businesses. The analysis then becomes “a question
of degree”—given all the options available to the state to advance the governmental
purpose, was it reasonable for the state to choose this approach, with its
corresponding benefits and burdens? Id.
Having laid out the appropriate test for a Fruits of Their Labor Clause claim,
we now turn to whether the Court of Appeals erred when it held that Ace Speedway
sufficiently alleged a colorable claim under that provision. At this point, we circle
-12- KINSLEY v. ACE SPEEDWAY RACING, LTD.
back to the standard of review described above. We treat the allegations in the
complaint as true and examine whether, if those allegations are proven, Ace
Speedway would prevail under the two-step inquiry for a Fruits of Their Labor Clause
claim. See Deminski, 377 N.C. at 412.
We begin with the first step of the test. The State contends that there “can be
little question that the order seeks to achieve ‘a proper governmental purpose’”
because “protecting North Carolinians from a novel virus—a virus that would
eventually kill over one million Americans” is a proper governmental purpose.
But this ignores the central allegation in Ace Speedway’s claim—that the
purpose of the abatement order was not to protect public health, but to retaliate
against Ace Speedway for criticizing the Governor. Ace Speedway alleges that it was
“singled out by the Governor for enforcement” because it spoke out against the
Governor’s emergency order, and that other businesses violating the emergency order
were not subjected to similar enforcement action by the State. This allegation, if true,
would establish that the State did not pursue a proper governmental purpose because
its purpose was not to protect the public interest, but to punish a private business for
standing up to the government.
At the motion to dismiss stage, we must accept Ace Speedway’s allegation as
true. Deminski, 377 N.C. at 412. Accordingly, Ace Speedway sufficiently alleged that
the State’s actions did not serve a proper governmental purpose.
We next turn to the second step of the test. Even if the State had a proper
-13- KINSLEY v. ACE SPEEDWAY RACING, LTD.
governmental purpose, we must assess whether the means chosen to achieve that
purpose were reasonable. The State argues that the abatement order was reasonably
necessary to protect the public health because “large mass gatherings at places like
racetracks presented an elevated risk for spreading COVID-19.” The State further
argues that the need to use the abatement order to shut down Ace Speedway stemmed
from “the best scientific and medical knowledge available at the time” to prevent the
spread of COVID-19.
But again, the State ignores the allegations in this constitutional claim. Ace
Speedway alleges that other racetracks and similar businesses violated the same
emergency order, yet none of those speedways faced similar enforcement action. See
Poor Richard’s, 322 N.C. at 66. Even if we accept the State’s asserted purpose for the
abatement order—protecting the public by stopping the spread of COVID-19—this
would mean that the State sought to achieve this governmental purpose by issuing
an abatement order shutting down a single business while choosing to ignore many
others presenting identical risks to the public. This is a particularly ineffective means
of achieving the asserted governmental interest, while simultaneously imposing a
tremendous burden on Ace Speedway. In other words, balancing the benefits and the
burdens of the State’s approach, the State’s decision to target Ace Speedway but
ignore other businesses posing identical risks is not reasonable.
Again, these are merely allegations. But, at this stage, we must accept those
allegations as true. Deminski, 377 N.C. at 412. Doing so, we conclude that, even
-14- KINSLEY v. ACE SPEEDWAY RACING, LTD.
assuming the State had a proper governmental purpose, Ace Speedway sufficiently
alleged that the means chosen by the State to achieve that purpose were
unreasonable under the circumstances.
In sum, Ace Speedway has sufficiently alleged that the challenged state action
fails both steps in the two-step analysis for a Fruit of Their Labor Clause claim.
Accordingly, Ace Speedway asserted a colorable constitutional claim that pierces the
State’s sovereign immunity. The Court of Appeals properly affirmed the trial court’s
denial of the State’s motion to dismiss this claim based on sovereign immunity.
III. Equal Protection Clause
We next turn to Ace Speedway’s claim that the abatement order was a form of
unconstitutional selective enforcement in violation of the Equal Protection Clause in
Article I, Section 19 of the North Carolina Constitution.
Ordinarily, the use of “some selectivity” when the government enforces the law
is appropriate and not a violation of equal protection. State v. Lawson, 310 N.C. 632,
643 (1984). To establish that the State’s selective enforcement violated the Equal
Protection Clause, the claimant must show that the enforcement “was motivated by
a discriminatory purpose and had a discriminatory effect.” State v. Garner, 340 N.C.
573, 588 (1995). The “discriminatory purpose” prong requires a showing that the
government consciously and deliberately based the enforcement on an “unjustifiable
standard” or “arbitrary classification” such as race, religion, or the exercise of the
claimant’s constitutional rights. State v. Ward, 354 N.C. 231, 244 (2001). The
-15- KINSLEY v. ACE SPEEDWAY RACING, LTD.
“discriminatory effect” prong requires a showing that the claimant has been singled
out and treated differently “when compared to persons similarly situated.” Maines v.
City of Greensboro, 300 N.C. 126, 132 (1980). Satisfying this two-part test is necessary
to overcome the presumption that public officials act in good faith when choosing how
to enforce the law. Id.
As we repeatedly explained above, we assess whether Ace Speedway
sufficiently alleged a colorable selective enforcement claim at this early stage of the
proceeding by accepting the allegations as true and examining whether those
allegations, if proven, satisfy the two-part test articulated in our case law. See
Deminski, 377 N.C. at 412.
Ace Speedway satisfies this standard. The central allegations of this selective
enforcement claim are that Robert Turner exercised his First Amendment rights by
openly criticizing Governor Cooper’s emergency order. In response to that protected
First Amendment activity, according to the allegations, Ace Speedway was “singled
out by the Governor for enforcement.”
Ace Speedway alleges that the Governor “took the unusual step of having a
letter sent to the Sheriff of Alamance County directing him to take action” against
the speedway and its operators. When the Sheriff refused, the State targeted the
speedway with the abatement order. This was done, according to Ace Speedway’s
allegations, because of Robert Turner’s public statements criticizing the Governor.
Other, similarly situated racetracks did not face enforcement action even though the
-16- KINSLEY v. ACE SPEEDWAY RACING, LTD.
State knew that they, too, were violating the emergency order.
These allegations, if proven, would establish that the State acted with the
discriminatory purpose of retaliating against Robert Turner’s valid exercise of his
First Amendment rights, and that the enforcement had the discriminatory effect of
harming Ace Speedway while other, similarly situated businesses faced no
consequences for the same violations of the emergency order. See Garner, 340 N.C. at
588. Thus, Ace Speedway asserted a colorable selective enforcement claim that
pierces the State’s sovereign immunity. The Court of Appeals properly affirmed the
trial court’s denial of the State’s motion to dismiss this claim as well.
IV. Least Intrusive Remedy Criteria
At the close of its new brief to this Court, the State also argues that, even if
Ace Speedway asserted colorable constitutional claims, those claims “fail for an
independent, alternative reason as well: Money damages are not the least-intrusive
remedy for the constitutional violations.”
This argument is not appropriate at this stage of the proceeding. In Corum, we
held that, when adjudicating these constitutional claims, “the judiciary must
recognize two critical limitations.” Corum, 33 N.C. at 784. “First, it must bow to
established claims and remedies where these provide an alternative to the
extraordinary exercise of its inherent constitutional power.” Id. “Second, in exercising
that power, the judiciary must minimize the encroachment upon other branches of
government—in appearance and in fact—by seeking the least intrusive remedy
-17- KINSLEY v. ACE SPEEDWAY RACING, LTD.
available and necessary to right the wrong.” Id.
These two “critical limitations” arise at separate stages of a Corum action. As
explained above, the first of these critical limitations—the adequate remedy prong—
is incorporated into the test for alleging a valid Corum claim. Deminski, 377 N.C. at
407. It is effectively “an element” of the constitutional claim. Askew, 902 S.E.2d at
733. As a result, the analysis of whether the claimant has an adequate, alternative
remedy can occur when a Corum claim is first asserted. Id. If there is an alternative
remedy, the Corum claim is infirm and must be dismissed.
By contrast, the second critical limitation—that the Corum court must choose
“the least intrusive remedy available and necessary to right the wrong”—arises after
the claimant proves a constitutional violation. Corum, 330 N.C. at 784. Corum
permits the judiciary to “exercise its inherent constitutional power to fashion a
common law remedy for a violation of a particular constitutional right.” Id. That
remedy “will depend upon the facts of the case developed at trial. It will be a matter
for the trial judge to craft the necessary relief.” Id.
Thus, the second limitation identified in Corum is intended as a restraint on
the scope of relief available to a successful Corum claimant. Corum ensures that
claimants can obtain “remedies that are meaningful, even if not necessarily complete
or the relief they want.” Washington, 385 N.C. at 830. Thus, even in cases where the
claimant seeks money damages, the trial court, at the conclusion of the case, may
need “to fashion a common law remedy less intrusive than money damages.” Corum,
-18- KINSLEY v. ACE SPEEDWAY RACING, LTD.
330 N.C. at 785. What remedy is both least-intrusive and sufficient to provide
meaningful relief is a question that can be answered only after fact issues are resolved
and the claim is proven.
Accordingly, we reject the State’s argument that Ace Speedway’s claims fail
because the claims do not seek the least-intrusive remedy. That argument is not ripe
for review. As we have repeated throughout this opinion, Ace Speedway’s allegations
remain unproven. The case has barely begun. The only question reviewable at this
early stage of the case is whether Ace Speedway has sufficiently alleged a valid
Corum claim, thus piercing the State’s sovereign immunity and permitting it to bring
the State into court to litigate the matter.
The trial court correctly concluded that the claims are valid and therefore the
State’s motion to dismiss must be denied. The Court of Appeals, in turn, properly
affirmed that ruling.
Conclusion
We affirm the decision of the Court of Appeals.
AFFIRMED.
-19-