Critics urge NC Supreme Court to uphold defamation ruling against McCrory boosters | Eastern North Carolina Now

Four voters urge the NC Supreme Court to allow a defamation case to proceed against lawyers who worked to boost Gov. Pat McCrory's campaign after the 2016 election.

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    Four NC voters have urged the state's highest court to allow them to continue pursuing a defamation case against lawyers who worked for a defense fund backing the candidacy of former Gov. Pat McCrory after the 2016 election.

    The group targeted for the lawsuit was not connected to McCrory's official campaign committee. The voters pursuing the suit work with lawyers associated with Democratic candidates and the Southern Coalition for Social Justice.

    The NC Supreme Court agreed to take the case, Bouvier v. Porter, in April. The high court also blocked a 2021 decision from the NC Court of Appeals. Appellate judges ruled that the lawsuit could move forward against a law firm, four associates, and the Pat McCrory Committee Legal Defense Fund.

    "In November 2016, the individual Defendants and their Defendant Law Firm, on behalf of the [McCrory] Defendant Defense Fund, prepared and filed 'election protests' in 50 counties across North Carolina using local voters they convinced to serve as nominal 'protesters' in order to fulfill a statutory requirement. The Law Firm Defendants did so despite the fact that they were out-of-state lawyers unlicensed to practice in North Carolina and lacked any knowledge or experience with election law or election protests in North Carolina," according to a brief filed Friday by plaintiffs.

    "When Defendants' protest strategy unraveled later that same month, they pulled out of North Carolina leaving the protesters, as one protester put it, 'hung out to dry.' By acting through others, though, Defendants left little paper trail of their activities and were able to escape the prospect of any discipline in North Carolina," the brief continued. "Plaintiffs here are the collateral damage of Defendants' effort to sow confusion and create post-election chaos."


    "In their protests, Defendants falsely accused Plaintiffs - ordinary North Carolina voters who simply exercised their right to vote - of felony double-voting. Defendants' false accusations exposed Plaintiffs, not otherwise public figures, to unwanted media attention and substantial public ridicule," plaintiffs' lawyers wrote.

    Plaintiffs defend the state Appeals Court's decision. "Consistent with years of precedent, the Court of Appeals unanimously affirmed a summary judgment ruling that Defendants were not entitled to absolute immunity for their unlicensed actions in North Carolina. North Carolina law has consistently extended the protections of absolute immunity from defamation claims in judicial and quasi-judicial proceedings only to participants in those proceedings, i.e., parties, counsel, and witnesses."

    "Defendants here fit none of those categories, especially after they expressly disclaimed that they were providing legal representation in the election protests at issue," according to the brief. "Yet Defendants insist that absolute immunity should be extended to them despite their non-participating status in the protests. In short, Defendants argue that North Carolina should create a public policy effectively granting absolute immunity to those engaged in the unauthorized practice of law, thereby immunizing out-of-state intermeddlers who will be free to interfere in North Carolina elections with no possibility of negative consequences."

    The lawyers who worked for the McCrory Committee Legal Defense Fund after the 2016 election offered their own written arguments in June.

    "For over 170 years, this Court has held that absolute privilege protects statements made in due course of judicial proceedings," defendants' lawyers wrote. "The Court has consistently applied the privilege based on the particular occasion in which the statement appeared - not on the particular conduct of a defendant."

    "The Court of Appeals followed this Court's precedents in holding that the statements at issue here - contained in government-issued election-protest forms filed with county boards of elections - were absolutely privileged because the statements were made in due course of a quasi-judicial proceeding. The court then ruled that absolute privilege attached to those statements, shielded Williams Clark Porter IV from liability, and mandated dismissal of the claims against Porter."


    "[T]he Court of Appeals held that Appellants were not entitled to absolute privilege despite making the same statements in the same election protests," the brief continued. "Instead, the Court of Appeals departed from this Court's established holdings and injected a new element into North Carolina's absolute-privilege law: for a defendant to be entitled to absolute privilege, the statement must not only be made in due course of a judicial proceeding, the defendant must also sufficiently participate in the proceeding."

    "The creation of this novel 'participation' requirement is a departure from this Court's century-long precedents and our State's long-standing public policy of immunizing defendants for statements that are made in due course of judicial proceedings," defendants' lawyers argued. "The Court of Appeals' revision of the absolute-privilege rule will hinder the flow of relevant information to government tribunals, undermining government officials' ability to ascertain the truth of a matter."

    A friend-of-the-court brief from the North Carolina Institute for Constitutional Law warned that the Appeals Court decision could have a negative impact on future efforts to safeguard election integrity.

    "Those concerned by specific irregularities may want to consider election protests, voter challenges, or some kind of legal recourse," wrote Jeanette Doran, NCICL president and general counsel. "The decision of the Court of Appeals will make thoughtful and sound deliberation of whether to file a protest harder by discouraging experts from consulting with voters."

    "Open communication between voters, legal professionals, candidates, and election officials, especially in time-pressed post-election procedures, is essential to the lawful administration of elections and disposition of protests and challenges," Doran added.

    "This case asked the simple question - are statements made in and relevant to an election protest protected by absolute privilege," Doran argued. "The courts below got the answer wrong. The Court of Appeals mistakenly shifted the focus of the inquiry from the allegedly defamatory statements to the speakers, super-imposing a new 'participant' requirement."


    "Absolute privilege hinges on specifics of the allegedly defamatory statement," Doran explained. "As soon as the Court of Appeals began its analysis on a defendant-by-defendant basis, it went off the legal course charted by more than a century of precedent. Breaking down the availability of absolute privilege by the speaker, rather than the statements at issue, is an analytical framework unsupported by law and contrary to public policy."

    The state Supreme Court has not yet scheduled Bouvier v. Porter for oral arguments.
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