NC Supreme Court urged to toss out defamation case linked to 2016 governor’s race

Republican U.S. Senate candidate Pat McCrory speaks to reporters after the John Locke Foundation's Feb. 26, 2022, GOP primary debate. (CJ photo by Mitch Kokai)

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  • Defendants linked to former Gov. Pat McCrory's 2016 campaign asked the N.C. Supreme Court to throw out a defamation lawsuit from McCrory critics.
  • The N.C. Institute for Constitutional Law filed a friend-of-the-court brief also calling on the state's highest court to reject the suit.
  • The case hinges on whether statements made in the official record of an election protest enjoy protection against a lawsuit.

Defendants associated with former Gov. Pat McCrory’s 2016 re-election campaign urged the N.C. Supreme Court Monday to throw out a defamation lawsuit from McCrory critics. The N.C. Institute for Constitutional Law also called on the Supreme Court to reject the suit.

The state’s highest court agreed in April to take the case, titled Bouvier v. Porter. Defendants and NCICL filed separate briefs Monday.

Current Gov. Roy Cooper, a Democrat, unseated incumbent McCrory, a Republican, in November 2016.  Cooper secured 49% of the vote, compared to McCrory’s 48.8%. The margin of victory was 10,277 votes out of 4.7 million total votes cast.

After the election, the Pat McCrory Committee Defense Fund hired the Holtzman Vogel law firm “to assist with post-election activities,” according to a court filing. The firm identified voters who might have voted in more than one jurisdiction.

Among those named in official election protests in Guilford and Brunswick counties were Louis Bouvier Jr., Karen Andrea Niehans, Samuel Niehans, and Joseph Golden. Those voters filed a defamation lawsuit based on the contents of the election protest.

The N.C. Court of Appeals threw out the suit against one of the law firm’s employees. But appellate judges ruled in 2021 that the suit could proceed against the law firm, four associates, and the McCrory committee.

In taking the case in April, the N.C. Supreme Court also blocked the Appeals Court ruling.

“For over 170 years, this Court has held that absolute privilege protects statements made in due course of judicial proceedings,” defendants’ lawyers wrote in their latest brief. “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.”

NCICL’s friend-of-the-court brief 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.”

Plaintiffs in the case will have a chance to file their own written briefs before the N.C. Supreme Court schedules Bouvier v. Porter for oral arguments.