Queen v. Senate

• Decision Date: 20 November 2012
• Docket Number: No. COA12–455.,COA12–455.
• Citation: 735 S.E.2d 229
• Parties: FRIENDS OF JOE SAM QUEEN, a political committee, Plaintiff, v. RALPH HISE FOR NC SENATE, a political committee; and North Carolina Republican Executive Committee, a political committee, Defendants.
• Court: North Carolina Court of Appeals

735 S.E.2d 229

FRIENDS OF JOE SAM QUEEN, a political committee, Plaintiff,

v.RALPH HISE FOR NC SENATE, a political committee; and North Carolina Republican Executive Committee, a political committee, Defendants.

No. COA12–455.

Court of Appeals of North Carolina.

Nov. 20, 2012.

Appeal by plaintiff from order and final judgment entered 14 December 2011 by Judge Gary E. Trawick in Superior Court, Haywood County. Heard in the Court of Appeals 10 October 2012.

Wallace & Nordan, L.L.P., Raleigh, by John R. Wallace and Joseph A. Newsome, for plaintiff-appellant and Frank G. Queen, P.L.L.C. by Frank G. Queen, Waynesville, for plaintiff-appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Raleigh, by Thomas A. Farr and Michael D. McKnight, for defendants-appellees.

STROUD, Judge.

I. Introduction

This case arises from alleged violations of the “Stand by Your Ad” disclaimers required for political advertisements under N.C. Gen.Stat. § 163–278.39A (2009) which occurred during the 010 campaign between Senator Ralph Hise and Senator Joe Sam Queen in North Carolina's 47th senatorial district. As both plaintiff and defendants failed to provide proper disclosures of the joint sponsorship of television advertisements by both the candidate committee and the political party, plaintiff's claim is barred by the statutory tu quoque defense. Since no prior case has interpreted N.C. Gen.Stat. § 163–278.39A and given the ambiguity inherent in the statute, as discussed below, it is not surprising that plaintiff and defendants would in good faith come to slightly different understandings of the requirements of the statute, and we do not mean to imply that either plaintiff or defendants intentionally violated N.C. Gen.Stat. § 163–278.39A. We affirm the trial court's order dismissing plaintiff's claim for the reasons below.

II. Background

Friends of Joe Sam Queen (“plaintiff” or “Queen Committee”), a political committee formed in North Carolina, filed a complaint on 28 January 2011 in Haywood County seeking damages under N.C. Gen.Stat. § 163–278.39A(f) from Ralph Hise for N.C. Senate (“Hise Committee”) and the North Carolina Republican Executive Committee, now known as the North Carolina Republican Party (“NCGOP”), also political committees (jointly, “defendants”). Plaintiff alleged that defendants violated disclosure requirements for advertising paid for by NCGOP during the 2010 race for North Carolina Senate.

In 2010, Joe Sam Queen was the Democratic candidate, and incumbent, for North Carolina Senate from the 47th North Carolina Senatorial District. His opponent was now-Senator Ralph Hise, a Republican. Both campaigns received substantial financial support for their media campaigns from their respective party committees, spending several hundred thousand dollars on television advertising over the course of the 2010 election season. Each political party paid for the production of video messages to be used in its candidate's advertising. NCGOP transferred funds to American Media and Advocacy Group (“American Media”) for the specific purpose of media buys for the Hise campaign, and American Media held these funds in a separate account designated for Senator Hise until he authorized a media purchase with the funds. The North Carolina Democratic Party (“NCDP”), by contrast, donated money to the Queen campaign to be used to purchase air time through its media company, Envision, and Envision's subcontractor, Buying Time, Inc. Each contribution by the NCDP to the Queen Committee was transferred to the committee's account for a brief period of time, and held there normally no longer than several hours—once only eleven minutes—before being transferred to Buying Time. Both Senators Hise and Queen authorized all expenditures to purchase the air time.¹ Substantively, the only difference in the actions of the plaintiff and the defendants is that the Democratic Party ran the contributed funds briefly though the candidate's campaign account before they were used for a media buy, while the Republican Party sent the funds directly to the media company to be held “in escrow” for the candidate to be disbursed for a media buy only at the candidate's direction. Both candidates listed the candidate or campaign committee as the “sponsor” of the advertising in the required on-air disclosure statements and neither listed a political party as a “sponsor.” Neither candidate committee had sufficient funds, but for the contributions of the respective political parties, to pay for their television advertising campaigns.²

Plaintiff filed its complaint on 28 January 2011, alleging that defendants violated the disclosure rules for political television advertising under N.C. Gen.Stat. § 163–278.39A. Specifically, plaintiff alleged that because the NCGOP paid American Media directly, as opposed to through the Hise campaign, it should have been disclosed as the sole “sponsor” of the Hise advertisements. Plaintiff further alleged that Ralph Hise for N.C. Senate was complicit in these violations and, therefore, also liable under § 163–278.39A(f). Plaintiff also claimed that its campaign advertising had complied fully with N.C. Gen.Stat. § 163–278.39A, as it must in order to bring this claim.

After defendants answered the complaint, denying that the alleged acts constituted violations and raising various defenses, the parties submitted affidavits, took depositions, and filed cross-motions for summary judgment. Defendants also asserted a statutory tu quoque (“you too”) defense under § 163–278.39A(f) analogous to the equitable defense of unclean hands, claiming that plaintiff engaged in equivalent conduct, so that if defendant's actions were in violation of the statute, the plaintiff's actions were also in violation, as they were substantively the same. Defendants further claimed that even if they were liable under the statute, § 163–278.39A violates their rights under the First and Fourteenth Amendments to the United States Constitution, as well the parallel provisions of the North Carolina Constitution.

The trial court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment by an order entered 14 December 2011, thus dismissing the plaintiff's claims. Plaintiff timely filed notice of appeal from both rulings in that order on 22 December 2011.

III. Standard of Review

Plaintiff timely appeals from the trial court's final order denying its motion for summary judgment and granting defendant's motion for summary judgment.

“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). In our review of the trial court's judgment, “we view the evidence in the light most favorable to the nonmoving party.” Beeson v. Palombo, ––– N.C.App. ––––, ––––, 727 S.E.2d 343, 346–47 (2012) (citation and quotation marks omitted).

IV. Cause of Action Under § 163–278.39A(f)

This case, which turns on the interpretation of the “Stand by Your Ad” law enacted in 1999, is one of first impression in this Court. N.C. Session Laws 1999–453. Although neither party raises this issue, we must address the preliminary matter of whether the proper plaintiff has brought this action. N.C. Gen.Stat. § 163–278.39A(f) provides that “a candidate for an elective office who complied with the television and radio disclosure requirements throughout that candidate's entire campaign shall have a monetary remedy in a civil action against” an opponent-candidate, candidate committee, political party organization, or other sponsor of political advertisements who violates the disclosure provisions of § 163–278.39A. N.C. Gen.Stat. § 163–278.39A(f) (emphasis added). The statute further provides that “[t]he plaintiff candidate may bring the civil action personally or authorize his or her candidate campaign committee to bring the civil action.” N.C. Gen.Stat. § 163–278.39A(f)(2)

Some explanation of the structure of Article 22A may be helpful in our discussion of the issues raised by this case. The statutory definitions of several words are important in this case. Article 22A, entitled “Regulating Contributions and Expenditures in Political Campaigns,” includes in N.C. Gen.Stat. § 163–278.6 (2009) a set of general definitions for terms used for most of Article 22A, while N.C. Gen.Stat. § 163–278.38Z (2009) includes additional definitions which are applicable only to Part 1A, entitled “Disclosure Requirements for Media Advertisements.” Plaintiff's claim is brought under a provision of Part 1A, specifically N.C. Gen.Stat. § 163–278.39A(f). The terms “candidate,” “candidate campaign committee,” and “political action committee” have definitions which are applicable only to Part 1A and are different from the definitions of the same words in N.C. Gen.Stat. § 163–278.6. See N.C. Gen.Stat. § 163–278.6(4), (14); N.C. Gen.Stat. § 163–278.38Z(2), (3), (5). We will use the definitions which are specific to Part 1A for these terms and will use the general definitions set forth in N.C. Gen.Stat. § 163–278.6 for the other relevant defined terms.

For purposes of Part 1A, a “candidate” is an individual who has filed the requisite notice of candidacy or has otherwise been certified as such. N.C. Gen.Stat. § 163–278.38Z(2). A “candidate campaign committee” is “any political committee organized by or under the direction of a candidate.” N.C. Gen.Stat. § 163–278.38Z(3). As noted above, these two terms are defined separately in Part 1A of Article 22A and are used as separate terms in subsection (f). N.C. Gen.Stat. §§ 163–278.38Z, 163–278.39A(f) (stating that the plaintiff-candidate has a cause of action against “an opposing candidate or candidate committee ” (emphasis added)). The statute identifies the ...