THE COMMITTEE TO ELECT DAN FOREST, a political committee, Plaintiff,
EMPLOYEES POLITICAL ACTION COMMITTEE (EMPAC), Defendant.
in the Court of Appeals 16 October 2017.
by Plaintiff from order entered 15 February 2017 by Judge
Allen Baddour in Wake County No. 16-CV-003099 Superior Court.
Law Firm, PLLC, by David "Steven" Walker, for the
Stevens Martin Vaughn & Tadych, PLLC, by C. Amanda
Martin, for the Defendant-Appellee.
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.
trial court granted summary judgment for EMPAC, concluding
that the law was unconstitutional as applied because Mr.
Forest could not forecast any evidence that he 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.
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)
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).
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.
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.
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). 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
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 fact that the
Committee satisfied this condition precedent. Specifically,
the Record contains a verified
Complaint 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.
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 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 (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.
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. 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.
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 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
appeal, the Committee contends that the trial court erred in
its ruling. EMPAC argues that the trial court correctly
determined that the Disclosure Statute is unconstitutional as
applied and further argues that the Disclosure
Statute is unconstitutional on its face. We review these
constitutional arguments de novo. Forbis v.
Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)
("The standard of review for summary judgment is de
novo."); State ex rel. McCrory v. Berger, 368
N.C. 633, 639, 781 S.E.2d 248, 252 (2016) ("We review
constitutional questions de novo.").
Forest's Committee Has Standing To Seek Damages.
trial court essentially concluded that Dan Forest's
Committee lacked standing to bring this suit based on the
absence of any evidence that Mr. Forest suffered any actual
damage. That is, because Mr. Forest won the 2012
election, he had no standing, in the constitutional sense, to
seek statutory damages allowed under the Disclosure Statute.
However, based on controlling precedent, it is clear that Mr.
Forest's Committee does have standing: simply because Mr.
Forest won his election does not mean that he did not suffer
an injury sufficient in a constitutional sense to confer
North Carolina Constitution provides in regard to standing as
All courts shall be open; every person for an injury done him
in his lands, goods, person, or reputation shall have remedy
by due course of law; and right and justice shall be
administered without favor, denial, or delay.
N.C. Const. art. I, § 18 (emphasis added). According to
our Supreme Court, "[t]he North Carolina Constitution
confers standing on those who suffer harm[, ]"
Mangum v. Raleigh Bd. of Adjustment, 362
N.C. 640, 642, 669 S.E.2d 279, 281 (2008), and that one must
have suffered some "injury in fact" to have
standing to sue, Dunn v. Pate, 334 N.C. 115, 119,
431 S.E.2d 178, 181 (1993).
Supreme Court has held in a variety of contexts that a party
has standing to bring suit where a private right has been
breached, even where the party has not suffered actual
damages beyond that fact that a breach occurred. The breach
itself is an "injury in fact." For instance, one
has standing to seek nominal damages "where some legal
right has been invaded but no actual loss or substantial
injury has been sustained. Nominal damages are awarded in
recognition of the right and of the technical injury
resulting from its violation." Potts v. Howser,
274 N.C. 49, 61, 161 S.E.2d 737, 747 (1968). A party to a
contract has standing to bring suit where the other party has
breached the contract, even if no actual damage is shown.
Kirby v. Stokes County, 230 N.C. 619, 627, 55 S.E.2d
322, 327 (1949). An owner of land has the right to exclusive
possession of his property and has standing to bring suit
against anyone who trespasses, even where the owner suffers
no actual damage; the owner's legal right to exclusive
enjoyment of his property has been invaded. Hildebrand v.
Southern Bell, 219 N.C. 402, 408, 14 S.E.2d 252, 257
(1941) (holding that a landowner "is entitled to be
protected as to that which is his without regard to its money
EMPAC had slandered Mr. Forest in its political ad,
Mr. Forest would have had standing to seek at least nominal
damages for this tort, even though he won the election.
Wolfe v. Montgomery Ward, 211 N.C. 295, 296, 189
S.E.2d 772, 772 (1937) (holding that a plaintiff who has been
slandered has standing to seek nominal damages even where
there is no evidence that he suffered actual damages).
private right at issue in the present case was not one that
existed at common law but rather was one created by our
General Assembly in the Disclosure Statute to provide an
enforcement mechanism. This private right is a right
expressly conferred by our General Assembly on a candidate to
participate in an election where sponsors of political ads
supporting his or her opponent must make themselves known to
the public in their ads. The General Assembly acted within
its authority to create a private right not recognized in the
The legislative branch of government is without question the
policy-making agency of our government, and when it elects to
legislate in respect to the subject matter of any common law
rule, the statute supplants the common law rule[.]
Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d
1, 8 (2004). See also Bumpers v. Cmty.
Bank, 367 N.C. 81, 88, 747 S.E.2d 220, 226 (2013)
(recognizing our General Assembly's authority to prohibit
unfair and deceptive trade practices and to create a private
cause of action in favor of a class of individuals to enforce
Court has held that a party has standing to sue for
statutory damages without having to demonstrate
actual damages where the statute at issue creates a private
cause of action as a mechanism to enforce the provisions of
the statute at issue. See Addison v. Britt, 83
N.C.App. 418, 421, 350 S.E.2d 158, 160 (1986) (Chief Judge
Eagles, joined by future Chief Justice Parker and future
Justice Webb, writing that "[o]nce a violation of an
actionable portion of the [Truth In Lending Act] is
established, the debtor is entitled to recover statutory
damages [and that b]ecause the purpose of that section is to
encourage private enforcement of the Act, proof of actual
damages is unnecessary").
the Disclosure Statute at issue here, in 2012, in an opinion
joined by Judge (now Justice) Beasley, our Court recognized
that by enacting the Disclosure Statute in 1999, the General
Assembly made the policy decision to create disclosure rules
in political advertising and to enforce those rules through a
"private cause of action, " by which candidates may
seek statutory damages when those rules have been broken.
Friends of Queen v. Hise, 223 N.C.App. 395, 735
S.E.2d 229 (2012) (footnote 7). The General Assembly
expressly created a private right of action for political
candidates and their committees to enforce its policy
decision to require that political television ad sponsors be
properly disclosed. It is equally clear that a candidate
suffers an "injury in fact" for a breach, even a
technical breach, of this right when an ad is run in the
candidate's election which runs afoul of the Disclosure
Statute. This "injury in fact" is a breach of a
private right similar to a breach of a private right suffered
by a party to a contract who has suffered a breach by the
other party to that contract, or by a landowner whose land
has been trespassed upon, or by an individual who has been
slandered. Even though there may not be any other actual
damage, like the loss of an election; the breach of the
private right, itself, constitutes an injury which provides
standing to seek recourse.
not to be concerned with the "wisdom or expediency"
of the Disclosure Statute, but rather we are only concerned
with whether the General Assembly had the "power"
to enact the law. In re Denial, 307 N.C. 52, 57, 296
S.E.2d 281, 284 (1982). We conclude that the General Assembly
acted within its authority in 1999 when it enacted the
Disclosure Statute to require that political ads disclose
their sponsors and to provide the committee of a political
candidate running for office with a private cause of action
to seek damages against the ...