Comm. to Elect Dan Forest v. Emps. Political Action Comm. (EMPAC), No. 231A18

Docket NºNo. 231A18
Citation376 N.C. 558, 853 S.E.2d 698
Case DateFebruary 05, 2021
CourtUnited States State Supreme Court of North Carolina

376 N.C. 558
853 S.E.2d 698

The COMMITTEE TO ELECT DAN FOREST, a Political Committee
v.
EMPLOYEES POLITICAL ACTION COMMITTEE (EMPAC), a Political Committee

No. 231A18

Supreme Court of North Carolina.

Filed February 5, 2021


Walker Law Firm, PLLC, by David Steven Walker, II, for plaintiff.

Stevens Martin Vaughn & Tadych, by C. Amanda Martin, Raleigh, and Michael J. Tadych, for defendant.

HUDSON, Justice.

853 S.E.2d 702
376 N.C. 558

¶ 1 At issue here is a question of first impression for our Court: whether the North Carolina Constitution limits the jurisdiction of our courts in the same manner as the standing requirements Article III imposes

376 N.C. 559

on federal courts, including the requirement that the complaining party must show she has suffered "injury in fact," even where an Act of the North Carolina General Assembly expressly confers standing to sue on a party, as it did in N.C.G.S. § 163-278.39A(f) (2011) (now repealed). We hold that it does not, and we affirm the decision of the Court of Appeals.1

I. Factual Background and Procedural History

¶ 2 In 2012, Linda Coleman and Dan Forest were, respectively, the Democratic and Republican candidates for Lieutenant Governor of North Carolina in the general election. The Employees Political Action Committee ("EMPAC" or "defendant"), a political action committee for the State Employees Association of North Carolina (SEANC), ran television advertisements supporting Ms. Coleman. According to plaintiff's complaint, the original version of the advertisement placed by EMPAC included a photograph of an individual that was approximately one-eighth the height of the full advertisement and, at any rate, was not a full-screen picture as then required by law. Furthermore, the individual in the picture, Dana Cope, was neither the Chief Executive Officer nor the treasurer of EMPAC as required by then-existing law.

¶ 3 After discovering the ad, the Committee to Elect Dan Forest (hereinafter, "plaintiff" or "the Committee") sent a notice and letter to the North Carolina State Board of Elections and EMPAC regarding the size of the picture. The notice did not mention that the wrong individual was pictured. EMPAC subsequently removed the advertisement and replaced it with one including a full-screen picture. The full-screen picture in the second advertisement was also of Mr. Cope, and therefore also failed to comply fully with disclosure requirements.

¶ 4 Mr. Forest ultimately won the 2012 election for Lieutenant Governor. Thereafter, on 9 March 2016, his Committee filed a complaint in the Superior Court of Wake County against EMPAC, alleging violations of N.C.G.S. § 163-278.39A.

¶ 5 In 1999, the North Carolina General Assembly enacted N.C. Session Law 1999-453, codified at N.C.G.S. § 163-278.38Z et seq. (2011) (hereinafter, "Disclosure Statute"), as a "Stand By Your Ad" law.2 The Disclosure Statute provided specific requirements for television and radio ads

376 N.C. 560

placed by candidate campaign committees, political action committees, and others supporting or opposing candidates. See generally N.C.G.S. § 163-278.39A. In pertinent part, the Disclosure Statute provided that television ads by political action committees "shall include a disclosure statement spoken by the chief executive officer or treasurer of the political action committee and containing at least the following words: ‘The [name of political action committee] political action committee sponsored this ad opposing/supporting [name of candidate] for [name of office].’ " Id. § 163-278.39A(b)(3). Furthermore, the Disclosure Statute required that, for all ads on television falling under the statute, "an unobscured, full-screen picture containing the disclosing individual, either in photographic form or through the actual appearance of the disclosing individual on camera, shall be featured throughout the duration of the disclosure statement." Id. § 163-278.39A(b)(6).

¶ 6 The Disclosure Statute also included a notable enforcement mechanism. In a section entitled "Legal Remedy," it created a private cause of action as follows:

[A] candidate for an elective office who complied with the television and radio disclosure
853 S.E.2d 703
requirements throughout that candidate's entire campaign shall have a monetary remedy in a civil action against (i) an opposing candidate or candidate committee whose television or radio advertisement violates these disclosure requirements and (ii) against any political party organization, political action committee, individual, or other sponsor whose advertisements for that elective office violates these disclosure requirements[.]3

Id. § 163-278.39A(f). The North Carolina Court of Appeals has previously characterized the cause of action created by the General Assembly in the Disclosure Statute as "unique in the world of election law." Friends of Joe Sam Queen v. Ralph Hise for N.C. Senate, 223 N.C. App. 395, 403 n.7, 735 S.E.2d 229 (2012).

376 N.C. 561

¶ 7 Plaintiff's complaint alleged two violations of the Disclosure Statute by EMPAC: (1) from 8 October through 25 October 2012, EMPAC ran a television ad that did not include "a full-screened picture containing the disclosing individual" but a much smaller one; and (2) Mr. Cope, the individual pictured in both versions of the ad, was not in fact "the Chief Executive Officer or treasurer of EMPAC."4 The complaint included as attachments an affidavit from Mr. Forest attesting the Committee was bringing the complaint on his behalf, records of the proposed schedule for ad run times with Time Warner Cable, the invoices for the ads, and copies of the notice and letter sent to the State Board of Elections and EMPAC. Defendant filed an answer and motion to dismiss based on lack of standing, which was denied. After failing to answer discovery, plaintiff voluntarily dismissed the lawsuit on 30 June 2015 and refiled on 9 March 2016.

¶ 8 After discovery in the case proceeded, defendant filed a motion for summary judgment on 29 June 2016, arguing the Disclosure Statute violated the First Amendment as a content-based restriction on speech. After hearing the motion on 16 August 2016, the trial court entered an order on 15 February 2017 granting defendant's motion for summary judgment, stating that "plaintiff ha[d] failed to allege any forecast of damage other than speculative damage" and that "[i]n the absence of any forecast of actual demonstrable damages, the statute at issue is unconstitutional as applied."5 Plaintiff gave timely notice of appeal to the North Carolina Court of Appeals.

¶ 9 In a split decision issued on 19 June 2018, the Court of Appeals reversed the trial court's grant of summary judgment to EMPAC. Comm. to Elect Dan Forest v. Employees Pol. Action Comm. (EMPAC) , 260 N.C. App. 1, 2, 817 S.E.2d 738 (2018). The majority reasoned that by "actual demonstrable damages" the trial court meant the Committee lacked standing to sue because Mr. Forest had not shown adequate "injury." Relying on decisions

376 N.C. 562

of this Court, the majority held the Committee had standing to sue because the Disclosure Statute creates a private right of action for a candidate against a party when that party runs an ad in the candidate's

853 S.E.2d 704

election violating the Statute and "the breach of the private right, itself, constitutes an injury which provides standing to seek recourse." Id. at 8, 817 S.E.2d 738. The majority further held the damages awarded under the Disclosure Statute were not unconstitutionally excessive even absent a showing of actual damages and that the Disclosure Statute did not per se violate the First Amendment, as EMPAC had argued on appeal. Id. at 11–12, 817 S.E.2d 738.

¶ 10 Chief Judge McGee dissented from the majority decision of the Court of Appeals, maintaining that plaintiff had not satisfied the condition precedent required by the Disclosure Statute and also that plaintiff lacked standing to sue because it had not shown "actual harm." Id. at 13, 817 S.E.2d 738 (McGee, C.J., dissenting). While noting that "North Carolina courts are not constitutionally bound by the standing jurisprudence established by the United States Supreme Court[,]" the dissent also noted that North Carolina appellate courts had previously applied United States Supreme Court decisions to questions of standing and, therefore, United States Supreme Court precedent is binding on the Court of Appeals. Id. at 14, 817 S.E.2d 738. The dissent noted that our courts have used the language "injury in fact" to describe the standing inquiry and then cited and extensively reviewed the recent United States Supreme Court decision in Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), to support the proposition that the North Carolina Constitution imposes the same "injury-in-fact" requirements of a "concrete" and "particularized" injury as the United States Constitution imposes on federal...

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17 practice notes
  • Priselac v. The Chemours Co., 7:20-CV-190-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2022
    ...N.C.App. 110, 115-16, 574 S.E.2d 48, 52-53 (2002), abrogated on other grounds by. Cnmm. tn Elect Dan Forest v. Emps. Pol. Action Comm.. 376 N.C. 558, 853 S.E.2d 698 (2021). In contrast, a defendant creates a private nuisance "where the nuisance results from violation of private rights and a......
  • State v. Strudwick, 334PA19-2
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 29, 2021
    ...North Carolina Constitution. See Bayard v. Singleton , 1 N.C. (Mart.) 5 (1787)." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 376 N.C. 558, 2021-NCSC-6, ¶ 14, 853 S.E.2d 698. In its application of the presumption of constitutionality, the majority deals the General Assembly a trum......
  • In re C.G., COA20-520
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 20, 2021
    ...are inapplicable in this case. Writing for our Supreme Court in Committee to Elect Dan Forest v. Employees Political Action Committee , 376 N.C. 558, 2021 -NCSC- 6, 853 S.E.2d 698, Justice Hudson delineated the key distinctions between the standing requirements under our State and federal c......
  • Harper v. Hall, 413PA21
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 14, 2022
    ...377 (2002).¶ 3 "A system of fair elections is foundational to self-government." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 376 N.C. 558, 2021-NCSC-6, ¶ 86, 853 S.E.2d 698 (Newby, C.J., concurring in the result). While partisan gerrymandering is not a new tool, modern technologie......
  • Request a trial to view additional results
18 cases
  • Priselac v. The Chemours Co., 7:20-CV-190-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2022
    ...N.C.App. 110, 115-16, 574 S.E.2d 48, 52-53 (2002), abrogated on other grounds by. Cnmm. tn Elect Dan Forest v. Emps. Pol. Action Comm.. 376 N.C. 558, 853 S.E.2d 698 (2021). In contrast, a defendant creates a private nuisance "where the nuisance results from violation of private rights and a......
  • State v. Strudwick, 334PA19-2
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 29, 2021
    ...North Carolina Constitution. See Bayard v. Singleton , 1 N.C. (Mart.) 5 (1787)." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 376 N.C. 558, 2021-NCSC-6, ¶ 14, 853 S.E.2d 698. In its application of the presumption of constitutionality, the majority deals the General Assembly a trum......
  • In re C.G., COA20-520
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • July 20, 2021
    ...are inapplicable in this case. Writing for our Supreme Court in Committee to Elect Dan Forest v. Employees Political Action Committee , 376 N.C. 558, 2021 -NCSC- 6, 853 S.E.2d 698, Justice Hudson delineated the key distinctions between the standing requirements under our State and federal c......
  • Harper v. Hall, 413PA21
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 14, 2022
    ...377 (2002).¶ 3 "A system of fair elections is foundational to self-government." Comm. to Elect Dan Forest v. Emps. Pol. Action Comm. , 376 N.C. 558, 2021-NCSC-6, ¶ 86, 853 S.E.2d 698 (Newby, C.J., concurring in the result). While partisan gerrymandering is not a new tool, modern technologie......
  • Request a trial to view additional results

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