Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.
Former N.C. Supreme Court Chief Justice Jim Exum could mediate a settlement of the criminal libel law dispute pitting the state attorney general against Wake County's district attorney.
Paperwork filed Friday in U.S. District Court shows that competing parties in the case titled Grimmett v. Freeman have agreed to use the 87-year-old Exum as a mediator.
That's if the case survives the 4th U.S. Circuit Court of Appeals. Attorney General Josh Stein has asked the Appeals Court to strike down a 1931 state law as unconstitutional. The law criminalizes lies about candidates running for elected office.
A 4th Circuit panel heard oral arguments in the case on Dec. 6. The three-judge panel has not yet issued its opinion. The same three judges split 2-1 last August in granting a temporary victory to Stein. The Appeals Court blocked the Wake D.A. from pursuing charges against Stein and co-defendants while the case proceeded through federal courts.
If the Appeals Court refuses to strike down the criminal libel law, the case would return to the District Court, where Magistrate Judge Joe Webster now oversees the case.
Webster issued an order earlier this month calling on the parties to select a mediator by Feb. 9. Mediation in the case would be due July 14.
Exum, a Democrat, served in the 1967 N.C. House of Representatives before then-Gov. Dan Moore appointed him to the state Superior Court in July 1967. Exum won an election to keep his judicial post the following year, then kept that job through 1974.
Voters elected Exum as an associate justice on the N.C. Supreme Court in 1974. He served as an associate justice until 1986, when then-Gov. Jim Martin, a Republican, bypassed Exum in appointing a new chief justice. Exum resigned, ran for chief justice in 1986, and won that election. He served as chief justice through Jan. 1, 1995.
Like Exum, both main parties in the case, Stein and Wake D.A. Lorrin Freeman, are Democrats.
Stein is asking the 4th Circuit to reverse a ruling from U.S. District Court, where Judge Catherine Eagles determined that the N.C. attorney general was unlikely to win his case against the state criminal libel law. Eagles refused to block enforcement of the law, and potential prosecution of Stein, as the case proceeds to trial.
Stein wants federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The state law declares it unlawful, as a Class 2 misdemeanor, "For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election."
A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein an injunction against the law. The injunction blocked Freeman's office from pursuing criminal charges against Stein and two colleagues.
The 4th Circuit injunction arrived one day after the Wake grand jury asked the D.A.'s office to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.
The statute of limitations in the case was scheduled to run out in October. But an Oct. 11 filing from Freeman's office states that 4th Circuit judges issued their injunction "upon Plaintiffs' consent to enter a tolling agreement as to enforcement of the Statute against them."
A tolling agreement would stop the clock on the statute of limitations until the case is resolved.
The controversy stems from Stein's 2020 re-election campaign. Stein, a Democrat, defeated Republican challenger Jim O'Neill, the Forsyth County district attorney. Stein's winning margin was just 13,622 votes out of 5.4 million ballots cast.
Stein and O'Neill criticized each other during the campaign over the issue of untested rape kits. After O'Neill accused Stein of allowing thousands of rape kits to remain untested and "sitting on a shelf,"
Stein responded with a TV ad titled "Survivor."
The ad featured Juliette Grimmett, a sexual assault survivor who worked for Stein in the N.C. Justice Department. At one point in the ad, Grimmett said, "When I learned that Jim O'Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out."
O'Neill filed a complaint with the State Board of Elections, calling the ad false and defamatory. O'Neill cited the now-disputed state law, N.C. Gen. Stat. § 163-274(a)(9). A state elections board investigator looked into the case and turned over findings to the Wake D.A. in 2021.
Freeman had recused herself from the case, turning it over to prosecutor David Saacks. Saacks sought a more thorough investigation from the SBI. Based on that work, the Wake D.A.'s office proceeded to the grand jury this summer with possible charges connected to the ad.
Stein initially won a temporary restraining order in the case from Eagles on July 25. But Eagles later reassessed her ruling and refused to grant Stein an injunction.
ad aired from August through October 2020. Misdemeanor charges in North Carolina come with a two-year statute of limitations. That means that Freeman's office faced a pending deadline to proceed with charges stemming from that ad.
Thanks to the tolling agreement, though, the statute of limitations could extend beyond the resolution of the legal dispute.
There is no deadline for a ruling from the 4th Circuit panel.