The N.C. Court of Appeals gave Lt. Gov. Dan Forest the green light for his lawsuit against the Employees Political Action Committee, the political arm of the State Employees Association of North Carolina.
In a split 2-1 decision, the Court of Appeals reversed the earlier decision of a trial court, which threw out Forest’s complaint in 2012 against EMPAC for violating the 1999 “stand by your ad” law. The ruling means the case must be tried, and if Forest wins, damages awarded.
Six years ago, in Forest’s first run for lieutenant governor, EMPAC ran a television commercial backing Forest’s Democratic opponent Linda Coleman. Forest sued for damages on the grounds that EMPAC’s commercial did follow the law. The commercial didn’t use a full-screen picture of the chief executive officer or treasurer of EMPAC, as the law required. Instead, the ad used a photograph of SEANC’s former executive director, Dana Cope, who, the court noted, was a popular figure in the organization at the time.
(Cope later pleaded guilty to two felonies after he admitted stealing about $500,000 from SEANC; and the 2013 General Assembly repealed the “stand by your ad” law.)
“There is an element of political irony; a Republican invoking a law passed by a Democratic-controlled General Assembly and later repealed by a Republican-controlled General Assembly,” Judge Christopher Dillon wrote for the majority. “However, our job is not to consider the politics of the parties involved. Rather, our job is simply to apply the law, irrespective of politics.” Judge Ann Marie Calabria concurred.
Forest won the 2012 election by fewer than 7,000 votes. He’s a likely Republican candidate for governor in the 2020 election. EMPAC usually supports Democratic candidates, and if Forest runs for governor, it may endorse his Democratic rival as it did Walter Dalton in 2012 and Roy Cooper in 2016.
Forest did not comment on whether he would extend an olive branch to EMPAC or press on for compensation.
Based on Forest’s history, N.C. State University professor of political science Andy Taylor speculated the lieutenant governor would be more likely to maintain chilly relations with the political arm of state employees.
“If Forest runs as a gubernatorial candidate, I suspect more so than other Republicans, he will run a campaign where he is talking about state employees, possibly taking a more antagonistic position toward them on matters such as employment and salaries,” Taylor said. “I expect Forest to be bad boy No. 1 for state employees.”
Provoking the state employees association may even help Forest’s campaign, Taylor said.
“If there is a political rationale, it might be for Forest to distance himself from an important coalition for Democrats in the state, and give him some bonafides,” Taylor said. “[As in], I took on the state employees, the government union. …That might be a useful position to take in a competitive gubernatorial primary.”
It’s unclear how much money Forest stands to gain in financial compensation for damages.
The court ruled that statutory damages were constitutional so long as the fines were not “so severe and oppressive as to be wholly disproportionate to the offense and obviously
If the court rules in his favor, Forest could rake in damages linked to the amount EMPAC spent on the offending commercial, but the court’s language gives EMPAC an opening to sue over unreasonably “severe and oppressive” fees.
“The only statement we have to make at this time is that we are obviously disappointed by the ruling, but we are working with our legal counsel to access our next steps,” said Amanda Finelli, a SEANC political strategist.
EMPAC also lambasted statutory damages as an “unconstitutional windfall” to Forest, who won the election despite the commercial.
The dissenting judge also said that Forest’s claim to have been injured by the commercial seemed hypothetical.
“I do not believe the General Assembly is empowered to confer standing on plaintiffs that have not alleged any actual harm,” Judge Linda McGee said in her dissenting opinion, adding “a ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.”
The lawsuit has dragged on for six years, and it easily could get tangled in more legal processes.
Although the Appeals Court ruled to allow Forest to pursue his case, EMPAC could appeal to the N.C. Supreme Court, which could dismiss the lawsuit or allow the trial to proceed. And even if Forest can prove he was damaged by the commercial, the court would have to set an amount for damages — and EMPAC could appeal the constitutionality of the fees.
Former Supreme Court Justice Bob Orr said the parties shouldn’t hold their breaths waiting for a result.
“Courts of litigation proceed slowly. Nothing is going to get resolved, absent the parties resolving it, anytime soon,” Orr said.