Dismissal of ‘fair report privilege’ case exposes state Supreme Court divisions

North Carolina Supreme Court Justices Anita Earls and Richard Dietz

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  • State Supreme Court justices split on a decision to vacate a Court of Appeals ruling addressing a media outlet's "fair report privilege." The decision prompted commentary from four of the court's seven justices.
  • Dissenting Justice Anita Earls said the decision hurt the "integrity of our justice system and our citizens’ faith in it."
  • Justice Richard Dietz labeled Earls' claims "a bit unhinged."

The state Supreme Court has dismissed an appeal dealing with the news media’s “fair report” privilege. The decision announced Friday prompted commentary from four of the seven justices, including one who wrote that a colleague’s claims were “a bit unhinged.”

Plaintiff Wesley Walker had filed a consent motion on Aug. 14 seeking to dismiss his appeal against WTVD, a Triangle-based news outlet. The case had been scheduled for oral arguments on Nov. 7 at the state’s highest court. But Walker and the TV station reached an undisclosed settlement in their dispute over a news story that aired in 2019.

Supreme Court justices agreed to dismiss the appeal. They split on the related decision to vacate the Court of Appeals’ decision in the case.

Appellate judges had blocked Walker’s ability to sue WTVD. The appellate opinion cited the news station’s reliance on a “fair report privilege” to protect it from legal action involving a false, defamatory report involving Walker.

The order signed by Justice Trey Allen cited an earlier precedent for vacating an Appeals Court decision.

“When a case becomes moot while on appeal, the usual disposition is simply to dismiss the appeal. This procedure, however, leaves the decision of the Court of Appeals undisturbed as a precedent when, but for intervening mootness, it might not have remained so,” according to the order. “While we express no opinion as to its correctness, the better practice in this circumstance is to vacate the decision of the Court of Appeals.”

The decision to vacate the intermediate court’s ruling prompted a dissent from Justice Anita Earls, joined by Justice Michael Morgan. Earls and Morgan are the court’s two Democrats.

“Today, this Court — without legal authority and without the benefit of argument, deliberation, or an opinion — reaches out and changes the law,” Earls wrote. “Whatever the merits of the Court of Appeals decision in this case, it is improper for this Court to act to modify or vacate the Court of Appeals decision in these circumstances. To do so flouts basic principles of the judicial process, and it signals to North Carolinians that ‘[p]ower, not reason, is the new currency of this Court’s decisionmaking.’”

Earls accused the court’s majority of departing from “well-established and time-honored practices.”

“For future litigants, the Court of Appeals’ ruling holds no precedential water,” she wrote. “And by effectively vacating the opinion, the majority sends an unmistakable message that it disagrees on the merits. For trial courts and future appellate panels, the Court mysteriously sends the message that the Court of Appeals is wrong without explaining how or why.”

“To take this step here is not just unwise, it is contrary to law,” Earls argued.

The dissent accused Earls’ Republican colleagues of “injecting yet more confusion, arbitrariness, and partisanship into North Carolina’s legal system. This radical approach allows the Court to brazenly warp the law to its policy preferences unconstrained by the need to have a live controversy to decide through careful deliberation; this is at the cost of the integrity of our justice system and our citizens’ faith in it.”

Earls’ dissent prompted a direct response from Justice Richard Dietz.

“Once again, this Court enters a routine order that draws an exaggerated, hyperbolic dissent from one of my colleagues,” Dietz wrote. “And, as is the case with so many of my colleague’s dissents, one could be forgiven for thinking that doom is upon us.”

“My colleague accuses the majority of seeking ‘power’ over reason, of engaging in a ‘radically destabilizing shift,’ of attempting to ‘brazenly warp the law,’ and on and on,” Dietz added. “Like so many of my colleague’s dissents, this one has portions that read more like pulp fiction than a legal opinion.”

Dietz argued that the decision to vacate the Appeals Court decision was “consistent with precedent.” He emphasized that justices already had deliberated for months about the case. “As is often the case, my dissenting colleague did not agree with the outcome of the Court’s deliberations and therefore discredits them. But that does not mean they never occurred,” he wrote.

“Rather than force the parties here to endure further, costly litigation, we chose — after much debate — to vacate the lower court opinion,” Dietz wrote. “This permits the Court of Appeals to refine its holding in future cases and perhaps avoid the issues that led us to review this case in the first place. One can reasonably disagree with our approach, but to claim that our decision comes ‘at the cost of the integrity of our justice system and our citizens’ faith in it’ is a bit unhinged.”

“[T]he reasonable differences of opinion that are present in this case do not warrant my dissenting colleague’s angry rhetoric; the needless, toxic disparagement; and the worn-out insistence that every routine disagreement at this Court portends the end of the public’s faith in our justice system,” he added.

Morgan’s separate dissent echoed Earls’ concerns about vacating the Appeals Court’s ruling. “This unfortunate overreach by a majority of this Court to deprive the Court of Appeals opinion of its appropriate precedential value is a bewildering indication of the extent to which this Court now goes in order to upend its institutionalized practices to achieve its desired ends.”

Justice Phil Berger Jr. dissented for a different reason. “To the extent the order entered by the Court today suggests that settlement of a case reflexively renders matters of law or legal inference moot, I respectfully dissent,” Berger wrote. “[S]ettlement alone does not deprive this Court of jurisdiction where there remains an unresolved matter of law.”

WTVD reported in August 2019 that Walker had hit an elderly patient in the face while working at his job as a certified nursing assistant at an assisted living facility. The report was based on an email WTVD had received from a sheriff’s department staff member.

The information was wrong. Walker’s stepfather had accused him of assault. The charge had nothing to do with Walker’s job.

Walker sued the sheriff’s office and WTVD for defamation in August 2020. An August 2022 ruling from the Court of Appeals allowed Walker to proceed with his lawsuit against the sheriff’s office. But the same court affirmed a lower court’s ruling favoring WTVD against Walker’s legal claims.