Comm. to Elect Dan Forest v. Emps. Political Action Comm., No. COA17-569

• Docket Nº: No. COA17-569
• Citation: 817 S.E.2d 738, 260 N.C.App. 1
• Case Date: June 19, 2018
• Court: Court of Appeal of North Carolina (US)

260 N.C.App. 1
817 S.E.2d 738

The COMMITTEE TO ELECT DAN FOREST, a political committee, Plaintiff,
v.
EMPLOYEES POLITICAL ACTION COMMITTEE (EMPAC), Defendant.

No. COA17-569

Court of Appeals of North Carolina.

Filed: 19 June 2018

Walker Law Firm, PLLC, by David "Steven" Walker, for the Plaintiff-Appellant.

Stevens Martin Vaughn & Tadych, PLLC, by C. Amanda Martin, Raleigh, for the Defendant-Appellee.

DILLON, Judge.

260 N.C.App. 2

During the 2012 election cycle, a political advertisement sponsored by the Employees Political Action Committee ("EMPAC"), the political arm of the State Employees Association of North Carolina ("SEANC"), ran on television supporting Linda Coleman, Democratic candidate for Lieutenant Governor. The Committee to Elect Dan Forest (the "Committee") commenced this action seeking statutory damages, contending that EMPAC's television ad violated the "stand by your ad" law, which was still in effect during the 2012 campaign cycle.

The trial court granted summary judgment for EMPAC, concluding that the law was unconstitutional as applied because Mr. Forest could

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not forecast any evidence that he

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suffered any actual damages, presumably because Mr. Forest won the election anyway. We reverse the trial court's order granting summary judgment and remand the matter for further proceedings consistent with this opinion.

I. Background

In 1999, the General Assembly enacted a "stand by your ad" law, codified in N.C. Gen. Stat. § 163-278.39A (hereinafter referred to as the "Disclosure Statute"), to regulate political advertisements. The Disclosure Statute required in relevant part that any television ad sponsored by a political action committee contain: (1) a "disclosure statement" identifying the sponsor of the ad spoken by either the sponsor's chief executive officer ("CEO") or its treasurer; and (2) a "full-screen picture containing [this] disclosing individual" featured during the disclosure statement. N.C. Gen. Stat. § 163-278.39A(b)(3) and (6) (2012).¹

The Disclosure Statute creates the right for a candidate to seek statutory damages against an ad sponsor who runs a non-conforming ad in the candidate's race. N.C. Gen. Stat. § 163.278.39A(f).

In 2012, North Carolina's race for Lieutenant Governor featured two candidates: Dan Forest and Linda Coleman. EMPAC ran a television advertisement in support of Ms. Coleman during the 2012 election cycle. There is evidence in the Record that this ad's disclosure statement violated the Disclosure Statute in two different ways: (1) the picture of the disclosing individual was not a "full-screen" picture, but rather was much smaller; and (2) the disclosing individual depicted in the ad was neither EMPAC's CEO nor Treasurer, but was rather Dana Cope, the then-CEO of EMPAC's affiliate entity, SEANC.

Mr. Forest's Committee filed a notice of complaint with the State Board of Elections (the "SBOE"), whereupon EMPAC pulled the offending ad and ran a new ad for the remainder of the 2012 election cycle with a disclosure which complied with the Disclosure Statute. Mr. Forest won the 2012 election for Lieutenant Governor by a narrow margin of 6,858 votes out of over 4 million votes cast. After the election, Mr. Forest's Committee commenced this action seeking statutory damages against EMPAC for its nonconforming ad supporting Ms. Coleman. The trial court granted summary judgment to EMPAC. The Committee timely appealed.

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II. Condition Precedent

Before addressing the arguments of the parties, we address the argument raised by our dissenting colleague. Specifically, the Disclosure Statute requires that in order to preserve the right to bring an action for damages, a candidate's committee must first "complete and file a Notice of Complaint" with the SBOE regarding the nonconforming ad no later than three days after the election. N.C. Gen. Stat. § 163-278.39A(f)(1).² Our dissenting colleague contends that the Record fails to demonstrate that the Committee filed a notice of complaint with the SBOE by the Friday following the 2012 election as required by the Disclosure Statute.

We agree with our dissenting colleague that the requirement to file a notice of complaint with the SBOE is a statutory "condition precedent" which cannot be waived; that is, by the terms of the Disclosure Statute, it was a condition precedent to bringing this matter that Mr. Forest's Committee first have lodged a complaint with the SBOE regarding EMPAC's ad by the Friday following the election. See Bolick v. American Barmag Corp. , 306 N.C. 364, 368-69, 293 S.E.2d 415, 419 (1982). However, we disagree with our dissenting colleague that the Record lacks sufficient evidence to create an issue of

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fact that the Committee satisfied this condition precedent. Specifically, the Record contains a verified Complaint³ in which the Committee alleges that it indeed sent a notice of complaint regarding EMPAC's nonconforming ad to the SBOE before the election, in late October 2012. Additionally, the Record contains a copy of this notice of complaint, which was attached as an exhibit to the verified Complaint. This notice of complaint is dated 26 October 2012, it states that it is being filed that same day, and it too is verified. There was no other evidence before the trial court at the summary judgment hearing concerning this issue; EMPAC never raised the issue at summary judgment nor has EMPAC raised the issue in its brief on appeal. Accordingly, we conclude that the Record shows that the Committee met its burden at summary judgment of presenting evidence that it timely filed a notice of complaint with the SBOE.

We note the dissent's argument concerning the lack of a file stamp of the SBOE on the copy of the notice of complaint contained in the

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Record. We disagree with the dissent that this lack of a file stamp is fatal to the Committee's claim. First, the lack of a file stamp does not bear on our appellate jurisdiction; and therefore, Crowell v. State , 328 N.C. 563, 402 S.E.2d 407 (1991) and McKinney v. Duncan , ––– N.C. App. ––––, ––––, 808 S.E.2d 509, 512 (2017), cited in the dissent, are inapposite. It is clear from the Record that our Court has appellate jurisdiction to consider the trial court's summary judgment.

Secondly, the lack of a file stamp was not fatal to the superior court's jurisdiction. Though the Committee bears the burden to show that it filed a notice of complaint with the SBOE within three days of the 2012 election, we note that providing a filed stamped copy of the notice is not the only way in which the Committee may meet its burden. Indeed, even the cases cited by our dissenting colleague, State v. High , 230 N.C. App. 330, 750 S.E.2d 9 (2013) and State v. Moore , 148 N.C. App 568, 559 S.E.2d 565 (2002), suggest that producing a file-stamped copy is not the only means to meet the burden of showing that a document was filed. These cases stand for the proposition that a trial court lacks jurisdiction to revoke a criminal defendant's probation based on a probation violation report which was not filed prior to the expiration of the defendant's probation period. In each case, we held that the State failed to meet its burden to show that the probation violation report was filed prior to the expiration of the defendant's probation period. However, we recognized that presenting a filed-stamped copy was not the only way which the State could have met its burden. For instance, in High , we vacated the trial court's order because "the [violation] reports were not filed stamped, nor [was] there any other evidence in the record indicating that the reports were actually filed within the period of probation." High , 230 N.C. App. at 336, 750 S.E.2d at 14 (emphasis added). And in Moore , we vacated the trial court's order, stating that "[i]n the absence of a filed stamped motion or any other evidence of the motion's timely filing [,] the trial court is without jurisdiction." Moore , 148 N.C. App. at 570, 559 S.E.2d at 566 (emphasis added). But in the matter before us, though the copy of the notice of complaint in the Record lacks the file stamp of the SBOE, the Record does contain other evidence showing that the notice of complaint was timely filed with the SBOE, as outlined above.

III. Analysis

We now turn to the arguments raised by the parties in their appellate briefs. In this matter, the trial court granted summary judgment in favor of EMPAC on the Committee's claim for statutory damages, concluding that "in the absence of any forecast of actual demonstrable damages [suffered by Mr. Forest], the statute at issue is unconstitutional

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as applied." In essence, the trial court did not declare the Disclosure Statute unconstitutional per se , but rather held that Mr. Forest lacked standing to seek damages under the Statute since he did not suffer any actual damages, apparently because he won the election.

817 S.E.2d...