IN THE SUPREME COURT OF NORTH CAROLINA
No. 403PA21
Filed 23 May 2024
LOUIS M. BOUVIER, JR., KAREN ANDREA NIEHANS, SAMUEL R. NIEHANS, and JOSEPH D. GOLDEN
v. WILLIAM CLARK PORTER, IV, HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC, STEVE ROBERTS, ERIN CLARK, GABRIELA FALLON, STEVEN SAXE, and the PAT MCCRORY COMMITTEE LEGAL DEFENSE FUND
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 279 N.C. App. 528, 865 S.E.2d 732 (2021), affirming in part
and reversing in part an order entered on 14 January 2020 by Judge R. Allen Baddour
Jr. in Superior Court, Guilford County, granting plaintiffs’ motion for summary
judgment as to defendants’ affirmative defenses and denying defendants’ motion for
summary judgment, and remanding the case. Heard in the Supreme Court on 11
April 2024.
Dowling PLLC, by Craig D. Schauer, for defendant-appellants Holtzman Vogel Josefiak Torchinsky PLLC, Steve Roberts, Erin Clark, Gabriela Fallon, and Steven Saxe; and Blanchard, Miller, Lewis & Isley, P.A., by Philip R. Isley, and Higgins Benjamin, PLLC, by Robert N. Hunter Jr., for defendant-appellant Pat McCrory Committee Legal Defense Fund.
Womble Bond Dickinson (US) LLP, by Pressly M. Millen and Ripley Rand, and Southern Coalition for Social Justice, by Jeffrey Loperfido, for plaintiff-appellees.
Jeanette K. Doran for North Carolina Institute for Constitutional Law, amicus curiae. BOUVIER V. PORTER
Opinion of the Court
NEWBY, Chief Justice.
In this case we decide the breadth of protections afforded to individuals
engaged in the pursuit of an election protest. Applying long-settled, bedrock
principles, we hold that the absolute privilege broadly protects all individuals
involved in any aspect of election protests from defamation claims. This includes, but
is not limited to, those who research, assess, strategize, approve, facilitate, direct,
prepare, file, or prosecute election protests. In so doing, we reiterate what this Court
has long held: the absolute privilege attaches by virtue of the proceeding in which the
statement is published. We therefore reject plaintiffs’ baseless attempt to constrict
the absolute privilege’s protections. Accordingly, plaintiff’s lawsuit, which seeks to
impose civil defamation liability for statements contained in election protests,
thereby discouraging citizens from guarding the integrity of their elections, is
absolutely barred. The Court of Appeals’ decision as to the issue before this Court is
therefore reversed, and the matter is remanded to the Court of Appeals with
instructions to further remand to the trial court to dismiss the matter with prejudice.
The opening text of Article I of our state constitution “declare[s]” our rights so
that “the great, general, and essential principles of liberty and free government may
be recognized and established.” N.C. Const. art. I. The text acknowledges that “[a]ll
political power is vested in and derived from the people” and that the people “have
the inherent, sole, and exclusive right of regulating the internal government.” Id. art.
I, §§ 2–3. The people exercise this “exclusive right” through one of our most
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fundamental political processes—elections. Indeed, North Carolinians elect hundreds
of state and local officials in all three branches of government.1
Since 1776 the state constitution has recognized the importance of elections
and their integrity in the Declaration of Rights. See id. art. I, §§ 9 (Frequent
Elections), 10 (Free Elections); N.C. Const. of 1868, art. I, §§ 10 (Free Elections), 28
(Frequent Elections); N.C. Const. of 1776, Declaration of Rights, §§ 6 (Free Elections),
20 (Frequent Elections). Notably, the Free Elections Clause declares that “[a]ll
elections shall be free,” N.C. Const. art. I, § 10, and guarantees “that voters are free
to vote according to their consciences without interference or intimidation,” Harper
v. Hall, 384 N.C. 292, 363−64, 886 S.E.2d 393, 439 (2023). An election is “free” when
(1) each voter is able to vote according to his or her judgment, and (2) the votes are
accurately counted. Id. at 363, 886 S.E.2d at 439. Inherently, votes are not accurately
counted if ineligible voters’ ballots are included in the election results.
Similarly, the state constitution has always protected the people’s right to
petition the government. N.C. Const. art. I, § 12; N.C. Const. of 1868, art. I, § 25; N.C.
Const. of 1776, Declaration of Rights, § 18. Article I, Section 12, guarantees that “[t]he
1 E.g., N.C. Const. art. II, §§ 2, 4 (election of state senators and representatives); id.
art. III, §§ 2(1) (election of the Governor and Lieutenant Governor), 7 (election of the secretary of state, auditor, treasurer, superintendent of public instruction, attorney general, commissioner of agriculture, commissioner of labor, and commissioner of insurance); id. art. IV, §§ 16 (election of Supreme Court justices, Court of Appeals judges, and superior court judges), 18 (election of district attorneys); id. art. VII, § 2 (election of sheriffs); N.C.G.S. § 7A-140 (2023) (election of district court judges); id. § 153A-34 (election of county commissioners); id. § 160A-66 (election of mayors and city council members).
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people have a right to assemble together to consult for their common good, to instruct
their representatives, and to apply to the General Assembly for redress of
grievances.” N.C. Const. art. I, § 12. The United States Constitution likewise
recognizes the people’s right to petition the government. U.S. Const. amend. I. This
fundamental right is directly “connect[ed] to the mechanics of popular sovereignty,”
John V. Orth & Paul Martin Newby, The North Carolina State Constitution 58 (2d
ed. 2013), because it protects the right to “express[ ] one’s views to government
officials” and to “influence the[ir] actions . . . whether in the legislative, executive, or
judicial branch,” Cheryl Lloyd Humphrey Inv. Co., LLC v. Resco Prods., Inc., 377 N.C.
384, 384, 388, 858 S.E.2d 795, 797, 799 (2021).
The General Assembly has recognized that free elections and the right to
petition are vital to maintaining the public’s trust and confidence in our system of
self-government. Specifically concerning elections, the General Assembly has
established various statutory processes by which North Carolina citizens may alert
county boards of elections to perceived problems in elections. See, e.g., N.C.G.S.
§§ 163-84 to -90.3 (2023) (voter challenges); -91 (Help America Vote Act of 2002
complaints); -127.1 to -127.6 (challenges to candidacy). One of these processes—
known as “election protests”—seeks to balance the public’s interest in achieving
accurate election results with the need to finalize those results in a short period of
time. See generally id. §§ 163-182.9 to -182.12, -182.14 (2023).
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Election protests enable North Carolina citizens to freely raise concerns about
the election process and give the county boards of elections a chance to address those
concerns before vote counts are finalized. The process is simple so that everyone, not
just lawyers, can use it. See id. § 163-182.9(a). Consequently, any candidate or
registered, eligible voter may file an election protest. Id.
Election protests are meant “to assure that an election is determined without
taint of fraud or corruption and without irregularities that may have changed the
result of an election.” Id. § 163-182.12. To this end, an election protest may address
any “irregularity” or “misconduct” in the election process, id. §§ 163-182.9(b), -182.10,
including the counting and tabulation of ballots cast by ineligible voters, see id.
§§ 163-182.9(b)(2), (4), -182.10(d)(2)e, -182.12, -182.13(a)(1). Voters may be ineligible
for many reasons, including when they have already voted in the election.2 Id.
§ 163-87(2).
Once a citizen files a protest, the county board of elections determines whether
the alleged irregularity actually occurred, and if so, what remedy is necessary. See
id. § 163-182.10. Where the irregularity affects the accuracy of the election results,
the county board of elections may order the ineligible ballots excluded from the vote
2 Certain categories of individuals are also categorically ineligible to vote, such as
minors, noncitizens, nonresidents, convicted felons, and deceased individuals. N.C. Const. art. VI, §§ 1-2; N.C.G.S. §§ 163-55(a), -85(c), -87 (2023). Additionally, a voter is generally ineligible to vote in a political party’s primary election if he or she is not a registered member of that party. See N.C.G.S. § 163-59 (2023). Even if a prospective voter meets all eligibility requirements, he or she must also be “legally registered” to vote. Id. § 163-54; see also id. § 163-82.1(a).
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total, and in some instances, may order a full recount. Id. § 163-182.10(d)(2)e. County
boards of elections must resolve all election protests very quickly because they must
authenticate and certify the election results within a few weeks of election day. See
id. §§ 163-182.5 to -182.6, -182.10(a)(2)–(3), -182.15(a)–(b). Election protests become
even more significant in very close elections because they could affect the outcome.
See id. § 163-182.10(d)(2)d–e, -182.13(a).
In 2016, North Carolina experienced a very close election between
gubernatorial candidates Roy Cooper and Pat McCrory. After election day, McCrory
trailed Cooper by approximately 5,000 votes—a vote margin that likely could have
entitled McCrory to a recount. See id. § 163-182.7(c)(2). On 10 November 2016, the
Pat McCrory Committee established defendant Pat McCrory Committee Legal
Defense Fund (the Defense Fund) in anticipation of postelection activities relating to
the gubernatorial election. The Defense Fund was tasked with obtaining and funding
election consultants and overseeing their efforts to assess potential irregularities in
the election.
The Defense Fund retained Jason Torchinsky and four associate attorneys of
defendant Holtzman Vogel Josefiak Torchinsky PLLC (Holtzman Vogel) to assist the
Defense Fund in any postelection activities.3 These attorneys received voting data
3 The only defendants in the present appeal are Holtzman Vogel, the associate attorneys (collectively, with Holtzman Vogel, law-firm defendants), and the Defense Fund. We refer to them collectively as defendants. Torchinsky was not named as a defendant in the case. Although William Clark Porter IV was originally named as a defendant, he did not
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and information from the Republican National Committee and the North Carolina
Grand Old Party that identified potentially ineligible voters. With this information,
the Defense Fund instructed the associate attorneys to work with local citizens to
submit election protests. Relevant to this case, the associate attorneys submitted
election protests in Brunswick County and Guilford County to challenge votes cast
by individuals who may have voted more than once.
Defendant William Clark Porter IV, a citizen of Guilford County, talked with
one of the associate attorneys about submitting an election protest in Guilford
County. On 17 November 2016, Porter authorized that associate attorney to sign and
submit the election protest on his behalf to the Guilford County Board of Elections.
The Guilford County protest alleged “that nine . . . individuals cast ballots in both
North Carolina and another state” and that “th[o]se ballots were erroneously counted
and tabulated by the G[uilford] County Board of Elections.” Specifically, the Guilford
County protest accused plaintiffs Karen Andrea Niehans, Samuel R. Niehans, and
Louis Maurice Bouvier Jr., among others, of having voted in another state. The
appeal from the favorable decision of the Court of Appeals, which held the absolute privilege barred plaintiffs’ claims against him, and he is not a party before this Court. The record indicates that the associate attorneys were not licensed or authorized to practice law in North Carolina at the time of the events of this case. They insist, however, that they did not need to be because their conduct in this case did not amount to the practice of law. Because their status as attorneys is irrelevant to the consideration of this matter, we do not resolve this question.
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Guilford County protest alleged that the supposed misconduct “affected or cast doubt
upon the results of the protested election.”
Similarly, Joseph Agovino, a citizen of Brunswick County, discussed
submitting an election protest with one of the associate attorneys. On 17 November
2016, Agovino signed the protest and authorized the associate attorney to submit the
protest on his behalf to the Brunswick County Board of Elections. The Brunswick
County protest alleged that plaintiff Joseph Daniel Golden “cast [a] ballot[ ] in both
North Carolina and another state” and that his ballot was “erroneously counted and
tabulated by the B[runswick] County Board of Elections.” The Brunswick County
protest alleged that the purported misconduct “affected or cast doubt upon the results
of the protested election.”
The Guilford and Brunswick County Boards of Elections each preliminarily
determined that the respective protests established probable cause to believe that a
violation of election law (or some other irregularity or misconduct) had occurred. The
Guilford and Brunswick County Boards of Elections then scheduled full hearings to
adjudicate the election protests.
The Guilford County Board of Elections held its hearing on 21 November 2016.
None of the associate attorneys attended. On 29 November 2016, the Guilford County
Board of Elections dismissed the Guilford County protest “due to lack of any evidence
presented.”
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The Brunswick County Board of Elections held its hearing on 22 November
2016. Once again, none of the associate attorneys attended. Before the board could
render a decision on the Brunswick County protest, Agovino withdrew the protest.
Following these events, plaintiffs received negative media attention and
adverse reactions in their respective communities. Accordingly, on 8 February 2017,
Bouvier and the Niehans filed a complaint asserting a libel claim against Porter and
seeking punitive damages pursuant to N.C.G.S. § 1D-1.
On 13 April 2017, Porter moved to dismiss pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure. Specifically, Porter argued that statements
made in election protests are made in the due course of a quasi-judicial proceeding
and therefore are immunized by the absolute privilege. On 9 June 2017, the trial
court denied Porter’s motion to dismiss. In his answer, Porter subsequently
reasserted the absolute privilege among other affirmative defenses, including the
right to petition the government.
Subsequently, plaintiffs filed an amended complaint on 9 November 2017,
adding Golden as a plaintiff and law-firm defendants and the Defense Fund as
defendants. The amended complaint reiterated the original claims for libel and
punitive damages. Plaintiffs also asserted that defendants conspired to commit the
“overt and wrongful acts” of “mak[ing] the statements and tak[ing] the actions
described above . . . to delay certification of the election and suggest that voter fraud
affected the election results.”
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Defendants moved to dismiss the amended complaint pursuant to the absolute
privilege, among other defenses. On 6 June 2018, the trial court denied their motions
to dismiss.4
On 12 and 16 July 2018, defendants submitted individual answers to plaintiffs’
amended complaint. In their respective answers, each defendant asserted the
absolute privilege along with other affirmative defenses, including the right to
petition the government.
On 3 September 2019, plaintiffs moved for partial summary judgment on all
the affirmative defenses, and all defendants, including Porter, jointly cross-moved for
summary judgment on plaintiffs’ claims. On 14 December 2020, the trial court denied
defendants’ motion and granted plaintiffs’ motion, dismissing all affirmative
defenses. Defendants, including Porter, appealed the trial court’s order, which denied
their claim to the absolute privilege.
The Court of Appeals unanimously affirmed in part, reversed in part, and
remanded the case.5 Bouvier v. Porter, 279 N.C. App. 528, 548, 865 S.E.2d 732, 745
(2021). First, the Court of Appeals noted that the absolute privilege is generally
4 As noted in footnote 8, defendants, including Porter, could have appealed the trial
court’s order denying their motions to dismiss. 5 Before addressing the merits, the Court of Appeals concluded that it had appellate
jurisdiction over defendants’ interlocutory appeal. Bouvier v. Porter, 279 N.C. App. 528, 540, 865 S.E.2d 732, 740 (2021). The Court of Appeals analogized the absolute privilege to other forms of “immunity from suit,” which it recognized as “a substantial right . . . [that] would be lost[ ] absent interlocutory review.” Id. at 539, 865 S.E.2d at 739 (quoting Topping v. Meyers, 270 N.C. App. 613, 617, 842 S.E.2d 95, 99 (2020)).
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applicable to statements made in the course of a judicial or quasi-judicial proceeding
that are sufficiently relevant and pertinent to that proceeding. Id. at 541, 865 S.E.2d
at 740–41. It then concluded that election-protest proceedings before county boards
of elections are quasi-judicial proceedings and that “[c]onsequently, as a general
principle, [the] absolute privilege applies to defamatory statements made in the
course of an election protest filed with a [c]ounty [b]oard of [e]lections.” Id. at 541–42,
865 S.E.2d at 741.
Second, the Court of Appeals concluded the statements at issue were relevant
and pertinent to the election-protest proceedings. Id. at 543–44, 865 S.E.2d at 742. It
stated that it “[could ]not conclude [the statements] were so ‘palpably irrelevant’ to
an election protest that ‘no reasonable man [could] doubt [their] irrelevancy or
impropriety.’ ” Id. (third and fourth alterations in original) (quoting Scott v.
Statesville Plywood & Veneer Co., 240 N.C. 73, 76, 81 S.E.2d 146, 149 (1954)).
“Consequently,” the Court of Appeals concluded that the “absolute privilege applie[d]
to the election protests containing the allegedly defamatory statements in this case.”
Id. at 544, 865 S.E.2d at 742.
Although it concluded that statements in the election protests were covered by
the absolute privilege, the Court of Appeals then adopted, without any citations to
this Court’s caselaw, plaintiffs’ theory that the absolute privilege only “applies to
statements by participants in judicial and quasi-judicial proceedings made within the
scope of those proceedings.” Id. at 544, 865 S.E.2d at 743 (emphasis added). Plaintiffs
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crafted this “participation” requirement by relying on inapposite Court of Appeals
precedent, the Restatement (Second) of Torts, and caselaw from other jurisdictions.
With plaintiffs’ newly created “participation” requirement in mind, the Court of
Appeals separately analyzed whether each defendant sufficiently participated in the
quasi-judicial proceeding. Id. at 544–48, 865 S.E.2d at 742–45.
First, the Court of Appeals held that the “absolute privilege most clearly
applie[d] to . . . Porter” because he “was the actual protestor.” Id. at 545, 865 S.E.2d
at 743. As to law-firm defendants, the Court of Appeals highlighted that they
“disclaimed acting as attorneys for the protestors,” “did not appear at the hearings,”
and did not make the allegedly defamatory statements “while they were participating
as counsel in the election[-]protest proceeding.” Id. at 546, 865 S.E.2d at 744. Thus,
the Court of Appeals concluded that law-firm defendants did not qualify as
“participants” under plaintiffs’ novel theory. Id. at 545–47, 865 S.E.2d at 743–45.
Finally, the Court of Appeals stated that the Defense Fund merely authorized the
election-protest strategy, which it did not consider to be “participation.” See id. at
548, 865 S.E.2d at 745. Therefore, the Defense Fund also did not fulfill the newfound
“participation” requirement. Id. In sum, the Court of Appeals affirmed the trial
court’s order denying law-firm defendants and the Defense Fund the absolute
privilege, but it reversed the trial court’s order denying Porter the absolute privilege.
Id.
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On 18 November 2021, law-firm defendants and the Defense Fund filed a
petition for discretionary review with this Court, challenging the newly devised
“participation” requirement. Plaintiffs did not seek review of the Court of Appeals’
conclusion that Porter was protected by the absolute privilege. In fact, at oral
argument, plaintiffs acknowledged that the absolute privilege precluded their lawsuit
against Porter.6 See Oral Argument at 38:50–41:54, Bouvier v. Porter (No. 403PA21),
https://www.youtube.com/watch?v=CBX9oVMTLUg [hereinafter Oral Argument].
This Court allowed defendants’ petition on 4 April 2023.
The issue presented is whether, like Porter, defendants are protected by the
absolute privilege for the allegedly defamatory statements made in the election
protests and are, therefore, entitled to summary judgment. Before this Court,
plaintiffs do not challenge the Court of Appeals’ conclusions that the absolute
privilege applied to statements in the election protests in this case. That is, plaintiffs
do not challenge that the statements were made in the due course of a quasi-judicial
proceeding and were relevant and pertinent to that proceeding. And as explained
below, we agree with the Court of Appeals on those issues. Therefore, the only
question for this Court is whether the Court of Appeals erred when it adopted
plaintiffs’ new “participation” requirement for the application of the absolute
privilege. See N.C. R. App. P. 16(a), 28(a)–(c).
6 This candid admission begs the question: if plaintiffs knew that they were precluded
from bringing a defamation action against Porter, why did they pursue that claim?
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This Court reviews orders granting or denying summary judgment de novo.
Quality Built Homes Inc. v. Town of Carthage, 369 N.C. 15, 18, 789 S.E.2d 454, 457
(2016). Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C.G.S. § 1A-1, Rule 56(c) (2023). “A ‘genuine issue’ is
one that can be maintained by substantial evidence.” Dobson v. Harris, 352 N.C. 77,
83, 530 S.E.2d 829, 835 (2000). A movant is entitled to judgment as a matter of law
when “an essential element of the opposing party’s claim does not exist, cannot be
proven at trial, or would be barred by an affirmative defense,” or when it is shown
“through discovery that the opposing party cannot produce evidence to support an
essential element of her claim.” Id. “The movant’s papers are carefully scrutinized,”
and the nonmovant’s factual allegations are taken as true and viewed in a light most
favorable to that party. Id.
As a cause of action, defamation claims protect people from untrue statements
that damage or degrade their reputations. Generally, “[i]n order to recover for
defamation, a plaintiff . . . must show that the defendant [(1)] caused injury to the
plaintiff [(2)] by making false, defamatory statements [(3)] of or concerning the
plaintiff[ ] [(4)] [that] were published to a third person.” Desmond v. News & Observer
Publ’g Co., 375 N.C. 21, 41, 846 S.E.2d 647, 661 (2020) (first alteration in original)
(quoting Desmond v. News & Observer Publ’g Co., 241 N.C. App. 10, 16, 772 S.E.2d
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128, 135 (2015)). Defamation encompasses two separate torts: “libel” and “slander.”
20 Strong’s N.C. Index 4th: Libel and Slander § 1, at 541 (2017). Libel is a written
defamatory statement, and slander is an oral defamatory statement. Id. In this case,
plaintiffs alleged libel.
Even if a plaintiff establishes all the essential elements of libel, however, a
defamation action will not lie if “the circumstances under which the statement was
published confer upon the publisher a privilege to publish it.” R.H. Bouligny, Inc. v.
United Steelworkers of Am., AFL-CIO, 270 N.C. 160, 170, 154 S.E.2d 344, 354 (1967).
Since before our independence, the common law has recognized “privileges” that
protect the publication of defamatory speech. See Shelfer v. Gooding, 47 N.C. (2 Jones)
175, 178–84 (1855); Dobson, 352 N.C. at 81, 530 S.E.2d at 834. These privileges
protect the public’s interest in the “free expression and communication of ideas” when
it outweighs the interest in protecting individuals’ reputations. R.H. Bouligny, 270
N.C. at 170, 154 S.E.2d at 354.
One such privilege is the “absolute privilege,” which applies when the public
has an interest in the defendant speaking “his mind fully and freely.” Ramsey v.
Cheek, 109 N.C. 270, 273, 13 S.E. 775, 775 (1891). When the absolute privilege
applies, “all actions in respect to the words used are absolutely forbidden”—even if
the plaintiff alleges that the defendant published them falsely, knowingly, and with
express malice. Id. This powerful protection is only granted in certain scenarios, such
as debates in the General Assembly, communications between military or law
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enforcement officers and their superiors in the line of duty, and “everything said by
a judge on the bench, by a witness in the box, and the like.” Id. (emphasis added).
Relevant to this case, a defamatory statement is absolutely privileged if it is made in
the due course of a judicial or quasi-judicial proceeding and is relevant and pertinent
to the subject matter of the proceeding. Scott, 240 N.C. at 76, 81 S.E.2d at 149;
Jarman v. Offutt, 239 N.C. 468, 472, 80 S.E.2d 248, 251 (1954).
Broadly stated, statements are “made in the due course” of a proceeding if they
are made in the regular progression of an action or proceeding or are
“communications relevant to [a] proposed judicial proceeding[ ].” Harris v. NCNB
Nat’l Bank of N.C., 85 N.C. App. 669, 674, 355 S.E.2d 838, 842 (1987).7 Importantly,
this requirement encompasses statements that predate the formal commencement of
an action or proceeding. See id. at 674, 355 S.E.2d at 842–43.
Statements made in the due course of a judicial or quasi-judicial proceeding
must also be “relevant” and “pertinent” to the subject matter of the proceeding, which
is a question of law for the courts. Scott, 240 N.C. at 76, 81 S.E.2d at 149. A statement
7 See also, e.g., Scott, 240 N.C. at 76, 81 S.E.2d at 149 (applying the absolute privilege
to “pleadings and other papers filed”); Jarman, 239 N.C. at 472, 80 S.E.2d at 251 (applying the absolute privilege to “affidavit[s] [that] are pertinent to matters involved in a judicial proceeding”); Wall v. Blalock, 245 N.C. 232, 232–33, 95 S.E.2d 450, 451–52 (1956) (applying the absolute privilege to “words spoken by an attorney in the course of a trial,” including arguments before the jury); Harman v. Belk, 165 N.C. App. 819, 824–25, 600 S.E.2d 43, 47–48 (2004) (applying the absolute privilege to statements made in depositions); Burton v. NCNB Nat’l Bank of N.C., 85 N.C. App. 702, 706, 355 S.E.2d 800, 802–03 (1987) (applying the absolute privilege to relevant out-of-court communications between parties or their attorneys).
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is irrelevant or impertinent if it is “so palpably irrelevant to the subject matter of the
controversy that no reasonable man can doubt its irrelevancy or impropriety.” Id.
Stated another way, a statement is relevant and pertinent “[i]f it is so related to the
subject matter of the controversy that it may become the subject of inquiry in the
course of the [proceeding].” Id.
Notably, “the [absolute privilege’s] protection from liability to suit attaches by
reason of the setting in which the defamatory statement is spoken or published. The
privilege belongs to the occasion. It does not follow the speaker or publisher into other
surroundings and circumstances.” R.H. Bouligny, 270 N.C. at 171, 154 S.E.2d at 354.
The justification for the absolute privilege is rooted in the commonsense notion
that in scenarios such as judicial and quasi-judicial proceedings, people must be able
to communicate freely, uninhibited by the fear of retribution in the form of a
defamation suit. See Shelfer, 47 N.C. (2 Jones) at 177–81. Indeed, the purpose of
judicial and quasi-judicial proceedings is to discover the truth in a matter and do
justice accordingly. See In re Miller, 357 N.C. 316, 334, 584 S.E.2d 772, 785–86 (2003).
To accomplish this laudable end, North Carolina, like other American jurisdictions,
employs an adversarial system of justice. State v. Lawrence, 365 N.C. 506, 512, 723
S.E.2d 326, 330 (2012). In the crucible of judicial or quasi-judicial proceedings, parties
pit their evidence and arguments against each other, id., and in that arena, “partisan
advocacy on both sides of [the] case . . . best promote[s] the ultimate objective”—truth
and justice. Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555 (1975). For
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this reason, “complete immunity” attaches “[w]here the public service or the due
administration of justice require it,” Ramsey, 109 N.C. at 273, 13 S.E. at 775, and “the
law does not allow recovery of damages, actual or punitive, occasioned by the
defamatory speech or publication,” R.H. Bouligny, 270 N.C. at 170, 154 S.E.2d at 354.
With these principles in mind, we hold that all defendants in this case are shielded
by the absolute privilege.
This Court has said that county boards of elections are quasi-judicial bodies.
See James v. Bartlett, 359 N.C. 260, 264, 607 S.E.2d 638, 641 (2005); Burgin v. N.C.
State Bd. of Elections, 214 N.C. 140, 146, 198 S.E. 592, 595–96 (1938); cf. Ponder v.
Joslin, 262 N.C. 496, 501, 138 S.E.2d 143, 147 (1964) (stating the State Board of
Elections acts as a quasi-judicial agency when resolving election protests). Therefore,
election protests before county boards of elections are quasi-judicial proceedings. The
Court of Appeals correctly reached this conclusion, and plaintiffs do not argue
otherwise.
Moreover, the statements complained of were relevant and pertinent to the
subject matter of the election-protest proceedings. The allegations contained in the
election-protest forms were obviously destined to “become the subject of inquiry in
the course of the [proceedings].” Scott, 240 N.C. at 76, 81 S.E.2d at 149. Indeed, the
statements’ allegations were in and of themselves the subject matter of the
election-protest proceedings. No one could seriously argue that the statements were
“so palpably irrelevant to the subject matter of the controversy that no reasonable
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man can doubt [their] irrelevancy or impropriety.” Id. Again, the Court of Appeals
correctly reached this conclusion, and plaintiffs do not ask this Court to revisit that
court’s determination.
Accordingly, defendants were protected by the absolute privilege because the
statements at issue were made in the due course of quasi-judicial proceedings and
relevant and pertinent to the proceedings’ subject matter. Because there are no
genuine issues as to any material fact, and because defendants have shown that they
are entitled to judgment as a matter of law, the trial court erred when it denied all
defendants summary judgment.8 The Court of Appeals’ analysis should have ended
there, and it should have remanded to the trial court with an instruction to dismiss
the action with prejudice.9
Instead, the Court of Appeals, in response to novel “participation” arguments
advanced by plaintiffs, concluded that defendants are not entitled to the absolute
privilege because law-firm defendants did not participate “as counsel” and the
Defense Fund did not “participat[e] in the election protest.” Bouvier, 279 N.C. App.
8 Given that the absolute privilege so clearly applies to this case, plaintiffs’ libel claims
should have been dismissed with prejudice much earlier at the pleading stage under Rule 12(b)(6). Cf. Scott, 240 N.C. at 77, 81 S.E.2d at 149–50. Nevertheless, defendants elected not to appeal the trial court’s denials of their motions to dismiss and proceeded to summary judgment. Throughout the course of this appeal, defendants only raised issues pertaining to the trial court’s summary judgment order. Accordingly, we resolve the appeal as presented. See N.C. R. App. P. 16(a), 28(a), 28(b)(6). 9 Plaintiffs predicated their civil conspiracy claim entirely on the “overt and wrongful
acts” of the alleged libel. Because defendants are immune from the defamation suit by virtue of the absolute privilege, defendants are also entitled to summary judgment regarding plaintiffs’ civil conspiracy claim. See Dobson, 352 N.C. at 83, 530 S.E.2d at 835.
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at 546, 548, 865 S.E.2d at 744–45. This baseless participation requirement concocted
by plaintiffs has no foundation in this Court’s jurisprudence. Rather, plaintiffs rely
on the Restatement (Second) of Torts and appellate decisions from other jurisdictions,
and they selectively lift quotes from decisions that do not actually articulate the rule
plaintiffs advance. Plaintiffs fail to point to any precedent from this Court or the
Court of Appeals requiring a defendant to “participate” as a party, counsel, or witness
to obtain the benefit of the absolute privilege.
Accordingly, we reject plaintiffs’ unsupported argument. Instead, we reiterate
what this Court has long held: “The privilege belongs to the occasion,” and “the
protection from liability to suit attaches by reason of the setting in which the
defamatory statement is spoken or published.” R.H. Bouligny, 270 N.C. at 171, 154
S.E.2d at 354 (emphasis added); see also Perry v. Perry, 153 N.C. 265, 267, 69 S.E.
130, 131 (1910); Shelfer, 47 N.C. (2 Jones) at 176–77. The public has an interest in
judicial and quasi-judicial bodies arriving at the truth in matters brought before them
and in the “due administration of justice.” Ramsey, 109 N.C. at 273, 13 S.E. at 775.
This interest is especially strong when the quasi-judicial proceeding implicates
accuracy in elections. To that end, the absolute privilege must apply broadly to
anyone involved in any aspect of an election protest, even if they did not actually
“participate” as a party, counsel, witness, or the like at a subsequent proceeding.
This Court’s caselaw specifically requires the broad application of the absolute
privilege. For example, in Jarman v. Offutt, a husband initiated a “lunacy proceeding”
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before a clerk of superior court to involuntarily commit his wife. 239 N.C. at 470, 472,
80 S.E.2d at 250, 252. The husband contacted a physician who had evaluated the
wife, and the physician completed an affidavit stating that the wife was “suffering
from a mental disease” and was “a fit subject for admission into a hospital for the
mentally disordered.” Id. at 470–71, 80 S.E.2d at 250. The husband did not follow
through on the involuntary-commitment proceeding, however, see id. at 471, 80
S.E.2d at 250–51, and he never filed the physician’s affidavit with the clerk, id. at
473–74, 80 S.E.2d at 252. Rather, the wife found the defendant’s affidavit “folded up
and sticking behind a tool cabinet in the husband’s barber shop.” Id. at 471, 80 S.E.2d
at 250–51. The wife then filed a defamation action against the physician. Id. at 468,
80 S.E.2d at 248. This Court held that the absolute privilege protected the physician
because he “made the affidavit . . . in the due course of a proceeding previously
instituted.” Id. at 473–74, 80 S.E.2d at 252. Significantly, this Court applied the
absolute privilege to the physician in Jarman even though his affidavit was never
filed and he never actually “participated” in the proceeding.
Not only does this Court’s caselaw compel the broad application of the absolute
privilege, but plaintiffs also acknowledged its propriety. At oral argument, this Court
asked plaintiffs’ counsel whether a doctor would be protected by the absolute privilege
if he advises a prospective medical-malpractice plaintiff that another doctor deviated
from the applicable standard of care but is never called to be a witness at trial. In
response, plaintiffs’ counsel acknowledged that the absolute privilege would protect
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the advising doctor from any subsequent defamation suit. Plaintiffs’ counsel
attempted to distinguish that hypothetical situation from the facts in this case,
however, as a “consultation . . . about a prospective lawsuit” involving “a person who
is or could be a potential witness.” Oral Argument at 23:27–27:45.
We see no material distinction, however, between the hypothetical described
above, the facts in Jarman, and the facts presented in this case. Like the doctor in
Jarman and the advising doctor in the hypothetical, defendants were involved in the
preliminary stages of the election protests but did not play a role at the
election-protest hearings. Generally, the Defense Fund oversaw the postelection
activities, approving of the election-protest strategy and facilitating exchanges of
information. For their part, law-firm defendants assessed data, consulted with the
actual protestors about the evidence, prepared the election protests, and filed the
protests with the county boards of elections on the protestors’ behalf. Moreover,
defendants in this case were potential witnesses for the election-protest hearings. See
N.C.G.S. § 163-182.10(c)(2) (2015) (“The county board may receive evidence at the
hearing from any person with information concerning the subject of the protest.”); see
also id. § 163-182.10(c)(2) (2023) (same). Simply put, defendants were inextricably
intertwined with the election protests in this case. Because “the privilege belong[ed]
to the occasion”—i.e., to the election protests—defendants are still entitled to the
absolute privilege even if they did not “participate” as a party, counsel, or witness at
the election-protest hearings. R.H. Bouligny, 270 N.C. at 171, 154 S.E.2d at 354.
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The broad application of the absolute privilege’s protection is especially critical
in fast-paced proceedings like election protests. After the polls close, the initial
counting of votes begins “immediately,” and precinct officials provide a preliminary
report of the vote count to the county boards of elections “as quickly as possible.”
N.C.G.S. § 163-182.2(a)(1), (5) (2015); see also id. § 163-182.2(a)(1), (5) (2023) (same).
Then the boards of elections conduct “canvasses” to “determin[e] that the votes have
been counted and tabulated correctly” and “authenticat[e] . . . the official election
results.” Id. § 163-182.5(a) (2015); see also id. § 163-182.5(a) (2023) (same).
The timing of election protests is measured relative to the county boards of
elections’ canvasses, which are normally held ten days after an election. Id.
§ 163-182.5(b) (2023); cf. id. § 163-182.5(b) (2015). At the latest, an election protest
may be filed by “5:00 P.M. on the second business day after the county board of
elections has completed its canvass and declared the results.” Id. § 163-182.9(b)(4)
(2015); see also id. § 163-182.9(b)(4) (2023) (same).
“[A]s soon as possible after the protest is filed,” the county board of elections
meets to preliminarily determine (1) whether the protest “substantially complies”
with statutory filing requirements, and (2) whether the protest “establishes probable
cause” to believe that a violation of election law, an irregularity, or misconduct has
occurred. Id. § 163-182.10(a)(1) (2015); see also id. § 163-182.10(a)(1) (2023) (same).
If both requirements are met, the county board of elections schedules a full hearing
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to resolve the matter. Id. § 163-182.10(a)(1) (2015); see also id. § 163-182.10(a)(1)
(2023) (same).
Relevant here, if the protest is filed before the canvass and concerns the
counting and tabulation of votes, the county board of elections must resolve the
protest before the canvass is completed. Id. § 163-182.10(a)(2) (2015); see also id.
§ 163-182.10(a)(2) (2023) (same). The county board of elections may pause the
canvass to ensure election protests are resolved before the canvass is completed, but
it “shall not delay the completion of the canvass for more than three days unless
approved by the State Board of Elections.” Id. § 163-182.10(a)(2) (2015); see also id.
§ 163-182.10(a)(2) (2023) (same). In all election protests, however, swiftness is the
order of the day. County boards of elections must expeditiously resolve election
protests to facilitate appeals and the timely certification of elections. See id.
§§ 163-182.11, -182.14 to -182.15 (2015); see also id. §§ 163-182.11, -182.14 to -182.15
(2023).
Accordingly, election protests proceed rapidly, and the process does not lend
itself to exhaustive discovery and absolute precision. Indeed, many times a
prospective protestor must solicit the help of numerous individuals to evaluate
voluminous evidence extracted from many different sources. Without the absolute
privilege, the specter of civil defamation liability would chill these individuals’
willingness—and undermine their ability—to engage in the election-protest process.
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Such an outcome is especially unacceptable because election protests are a
valuable tool in safeguarding North Carolinians’ right to free elections. The public
rightfully expects that we have a “government of the people, by the people, for the
people.” Abraham Lincoln, Gettysburg Address (Nov. 19, 1863). This requires
integrity throughout the election process. Thus, citizens must be able to voice their
concerns. In light of the public’s strong interest in ensuring that all individuals can
fully and freely collaborate and communicate in the course of an election protest, we
hold that the absolute privilege’s protection extends to everyone involved in that
process, not just those who act as party, counsel, or witness.
Undoubtedly, in fast-paced scenarios like election protests, mistakes will be
made, and the evidence will not always confirm election protestors’ suspicions. Yet it
remains true that “[i]n a political process meant to address public concerns, a
commitment to ‘free and open debate’ means other parties are free to counter selfish
or misleading speech with speech of their own.” Cheryl Lloyd Humphrey Land Inv.
Co., 377 N.C. at 388–89, 858 S.E.2d at 799 (quoting Connick v. Myers, 461 U.S. 138,
145, 103 S. Ct. 1684, 1689 (1983)). In judicial and quasi-judicial proceedings, an
aggrieved party is remedied by “expos[ing] the falsity of the statements and
submit[ting] alternative evidence,” id. at 390, 858 S.E.2d at 800—which is exactly
what happened in this case. Ultimately, plaintiffs were vindicated because the
protests were either withdrawn or dismissed. Further subjecting defendants to civil
defamation liability for election protests impermissibly strikes “fear of retribution” in
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the minds of other concerned citizens, which will assuredly chill their future
willingness to “voice their concerns to the government” in future elections. Id.
The statements at issue were made in the due course of a quasi-judicial
proceeding and were both relevant and pertinent to its subject matter. Defendants
are therefore entitled to the protection of the absolute privilege.10 Accordingly, the
decision of the Court of Appeals creating a “participation” requirement is reversed.
The matter is remanded to that court with instructions to further remand to the trial
10 Although not at issue in this case, we observe that statements concerning matters
of public concern generally enjoy the protection of the “qualified privilege.” See generally Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 285, 182 S.E.2d 410, 415 (1971) (“The essential elements [for the qualified privilege to exist as a defense to defamation claims] are . . . [1] good faith, [2] an interest to be upheld, [3] a statement limited in its scope to this purpose, [4] a proper occasion, and [5] publication in a proper manner and to the proper parties only.” (quoting 50 Am. Jur. 2d Libel and Slander § 195 (1970))). Indeed, the state constitution’s Free Speech Clause grants everyone a qualified privilege “to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously.” Yancey v. Gillespie, 242 N.C. 227, 229–30, 87 S.E.2d 210, 212 (1955) (quoting Hoeppner v. Dunkirk Printing Co., 172 N.E. 139, 140 (N.Y. 1930)). To that end, this Court has recognized that when a publication concerns “political matters, public officials[,] . . . candidates for office,” or other “matters of public concern,” Ponder v. Cobb, 257 N.C. 281, 297, 126 S.E.2d 67, 79 (1962) (quoting Utah State Farm Bureau Fed’n v. Nat’l Farmers Union Serv. Corp., 198 F.2d 20, 22 (10th Cir. 1952)), the publisher is given “the benefit of [a] presumption that he made the statements . . . in good faith and without malice,” id. at 299, 126 S.E.2d 67, 80. Indeed, “[t]he burden . . . [is] placed upon the plaintiffs to establish by a preponderance of the evidence[,] or by its greater weight[,] that the defendant made his charges in bad faith, without probable cause[,] and with express malice.” Id. at 299, 126 S.E.2d at 80. Notably, this Court held that the qualified privilege extended to “a statement made in good faith by the chairman of a political party charging misconduct of election officials, the statement being made to public officials from or through whom redress might be expected, even though the statement [was] also made public in a press release.” R.H. Bouligny, 270 N.C. at 172, 154 S.E.2d at 355 (citing Ponder, 257 N.C. at 281, 126 S.E.2d at 67).
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court for dismissal with prejudice and for any other proceedings warranted by this
disposition.
REVERSED AND REMANDED.
Justices EARLS and RIGGS did not participate in the consideration or decision
of this case.
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