by Mitch Kokai
Senior Political Analyst, John Locke Foundation
More than a month after leaving public office, former N.C. Lt. Gov. Dan Forest has secured a win in a long-running legal battle with a state employee political group. But the case’s significance could extend far beyond a single dispute over an old election.
The N.C. Supreme Court affirmed today an Appeals Court decision allowing Forest to seek monetary damages from the Employees Political Action Committee, a group tied to the State Employees Association of North Carolina.
The dispute involved a 2012 campaign ad EMPAC ran against Forest. The ad violated disclosure requirements in the since-repealed “Stand By Your Ad” law. Forest would need to return to a trial court to pursue his claim for money from the political committee.
Beyond the particulars of Forest’s claim, the 84-page majority opinion in the case aims to clarify state court rules involving legal “standing.” Without standing, a plaintiff cannot move forward with a lawsuit at all.
Writing for the Supreme Court’s four Democrats, Justice Robin Hudson concludes that state law gave Forest’s campaign committee standing to bring the lawsuit against EMPAC. That means the former lieutenant governor could end up collecting damages equal to the amount of money EMPAC spent running the offending television ad against him nine years ago.
But Hudson’s decision also attempts to clear up general misconceptions about standing. For one, the decision distinguishes N.C. state courts’ standing rules from those governing federal courts.
While we have held the Court of Appeals errs in relying on federal standing doctrine, … we have declined to delineate those differences. Our silence on this fundamental matter has engendered substantial confusion and disagreement in the lower courts and we end it today.
After a lengthy review of state and federal history on standing, Hudson summarizes North Carolina’s current standing requirements.
We have held that, in directly attacking the validity of a statute under the constitution, a party must show they suffered a “direct injury.” … The direct injury requirement applicable in cases involving constitutional challenges to the validity of government action is a rule of prudential self-restraint based on functional concern for assuring sufficient “concrete adverseness” to address “difficult constitutional questions.”
But Forest’s case is different, Hudson notes. He sued under a state law that expressly granted him the right to pursue legal action.
When a person alleges the infringement of a legal right arising under a cause of action at common law, a statute, or the North Carolina Constitution, however, the legal injury itself gives rise to standing. The North Carolina Constitution confers standing to sue in our courts on those who suffer the infringement of a legal right, because “every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law.”
The General Assembly had the power to write a law — in this case, the now-repealed “Stand By Your Ad” law — that gave a political candidate like Forest standing to go to court. Neither Forest nor any other potential plaintiff needed to suffer actual harm.
Forest ended up winning the 2012 election, and won re-election in 2016, before courts responded to his suit. No matter.
[W]hen the legislature exercises its power to create a cause of action under a statute, even where a plaintiff has no factual injury and the action is solely in the public interest, the plaintiff has standing to vindicate the legal right so long as he is in the class of persons on whom the statute confers a cause of action.
So Forest can pursue his case further if he chooses to move forward.
But the story gets even more complicated than the “tortuous track through the thorny thicket of standing” that Hudson describes.
Along with the standing issue, EMPAC had challenged the constitutionality of the “Stand By Your Ad” law. If the law itself had been unconstitutional, by violating state employees’ free-speech rights, Forest’s standing to sue would not have made a difference.
After agreeing in December 2018 to hear EMPAC’s arguments on constitutionality, the Supreme Court ultimately decided today not to rule on that issue.
One justice would have addressed that topic. New Chief Justice Paul Newby wrote a concurring opinion. While the Republican Newby agreed with his Democratic colleagues on the result of the case — allowing Forest to proceed to trial — Newby would have upheld the “Stand By Your Ad” law on constitutional grounds.
There is no dispute that plaintiff’s complaint precisely tracks the requirements of the statute. 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 notes that the disputed law sets up a system in which private actors can go to court to address violations of that law. This is called a “private attorney general action.”
Private attorney general actions allow nongovernmental actors to enforce laws. 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 chief justice offers the following conclusion:
Private attorney general actions with statutory damages serve to vindicate the rights of an injured public when harm is hard to quantify. 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.
The Supreme Court’s newest members — Justices Tamara Barringer and Phil Berger Jr. — took no part in this case. The court heard arguments in the case well over a year ago, in November 2019, after initially agreeing to take up the case in 2018.