Newby’s first opinion as chief justice offers reminder of legislative power

In his first written opinion since taking the top job in N.C. government’s judicial branch, Paul Newby went out of his way to emphasize the power of the legislative branch.

The Feb. 5 opinion could offer a valuable clue for political observers. It could signal the new state Supreme Court chief justice’s likely approach toward future clashes involving legislators, the governor, and judges.

The case that prompted Newby’s writing has an interesting history.

In 2012 a political group tied to the State Employees Association of North Carolina aired a television ad against Dan Forest, the Republican candidate for lieutenant governor. The ad ran afoul of disclosure requirements tied to a state law called “Stand By Your Ad.”

Forest won the election. State lawmakers later repealed “Stand By Your Ad.” But neither of those factors blocked the lieutenant governor from taking the state employees group to court.

The “Stand By Your Ad” law had given political candidates like Forest the right to sue over an offending ad. If successful, the candidate could collect damages equal to the amount of money spent airing the ad.

In what turned out to be a slow-moving case, a trial court threw out Forest’s suit in 2017, three months after his re-election to a second term as lieutenant governor. But Forest pressed the matter. In June 2018, a split Appeals Court panel ruled in his favor.

The 2-1 appellate decision guaranteed that the case would head to the N.C. Supreme Court. Justices would address the question of whether Forest had legal standing to proceed with his suit. In December 2018, the high court agreed to take up other issues, including whether the now-repealed “Stand By Your Ad” law was constitutional.

Nearly another full year passed before the Supreme Court heard arguments in the case in November 2019. After another 15 months, the court rendered its decision.

Four justices — all Democrats — agreed that Forest could move forward with his complaint. He had legal standing to proceed. That’s despite the fact that Forest has now left state government after two full terms as lieutenant governor and an unsuccessful bid last fall for the governor’s job.

Over 84 pages, Justice Robin Hudson’s majority opinion detailed differences between state and federal court rules regarding standing. In a footnote at the end of that opinion, Hudson mentioned that the court’s majority declined to address whether “Stand By Your Ad” was constitutional.

Newby took a different approach.

In a seven-page concurring opinion, the chief justice supported only the end result of his Democratic colleagues’ work. Newby agreed with them that Forest could proceed with the case.

But the chief justice set out a different rationale. “A system of fair elections is foundational to self-government,” he wrote. “Our state constitution acknowledges this principle and allows the General Assembly broad authority to enact laws to protect the integrity of elections and thus encourage public trust and confidence in the election process.”

Such was the motivation when a General Assembly run by Democrats enacted “Stand By Your Ad” in 1999. “Part of that statute allowed a candidate affected by the illegal ad to enforce the regulations by bringing suit and established statutory damages he or she could seek,” Newby wrote. “This provision is one of many where our General Assembly has provided for such private enforcement.”

Forest followed the law in pursuing his case, in Newby’s estimation.

“There is no dispute that plaintiff’s complaint precisely tracks the requirements of the statute,” the chief justice wrote. “The only remaining question, then, is whether [a subsection of the law] is enforceable as written; in other words, is the statute constitutional? It is. Here the General Assembly used its longstanding constitutional authority to create causes of action like this one.”

Newby could have stopped writing at that point. He had made his argument supporting Forest’s suit.

But the opinion continued. Newby touted the merits of legislators enabling a type of lawsuit dubbed a “private attorney general action.”

“Private attorney general actions allow nongovernmental actors to enforce laws,” the chief justice explained. “These actions are integral to the well-being of this State’s citizens. They are often used when the harm is to the public generally and is difficult to quantify. Such a statute by its own accord recognizes that an injury has occurred and allows a specified party to sue for recovery.”

The solo opinion concluded with a clear restatement of legislative authority.

“Private attorney general actions with statutory damages serve to vindicate the rights of an injured public when harm is hard to quantify,” Newby wrote. “The General Assembly, within its constitutional authority, provided for such a cause of action and such damages in this case. Plaintiff has the right to sue under this statute, and neither the North Carolina Constitution nor this Court’s precedent limit courts from hearing the case.”

Neither of the Supreme Court’s newest justices — Republicans Tamara Barringer and Phil Berger Jr. — took part in the Forest case. It’s unclear whether either would sign on to Newby’s legal reasoning.

But even though he acted alone in this instance, Newby went out of his way to affirm a basic principle: The General Assembly maintains “constitutional authority” to write the state’s laws. Courts must keep that fact in mind as they render decisions involving those laws.

The Supreme Court is likely to see the principle tested again in the weeks and months ahead.

Mitch Kokai is senior political analyst for the John Locke Foundation.