Attorneys, law firm not entitled to absolute privilege in election protest suit 

A party to a quasi-judicial protest proceeding is entitled to absolute privilege in a libel suit being brought by a group of plaintiffs who were falsely accused of double voting in the 2016 election—but the lawyers, law firm and defense fund behind the election protest are not similarly protected, the North Carolina Court of Appeals has ruled. 

The 2016 election featured a tightly-contested gubernatorial race between then-incumbent Gov. Pat McCrory and challenger Roy Cooper. Vote tallies the morning after the election reflected McCrory trailed Cooper by only 5,000 votes. 

In response, the McCrory campaign formed the Pat McCrory Committee Legal Defense Fund and engaged lawyers with Holtzman Vogel Josefiak Torchinsky (HVJT) to work on its behalf. The lawyers compiled a list of names of potential double voters and prepared election protest forms to be filed with County Boards of Elections challenging purportedly ineligible voters. 

The defense fund decided that local voters, rather than McCrory himself, should file the protests. The fund identified William Clark Porter IV as a potential volunteer to file a protest. Porter agreed, and named Louis M. Bouvier and Karen and Samuel Niehans as having voted in another state, despite later testifying he had no knowledge about the facts alleged in his protest. 

Similarly, Joseph Agovino was tapped to file a protest in a separate county asserting that Joseph Golden voted twice. 

Bouvier, the Niehans, and Golden filed an action for libel against Porter, the defense fund, HVJT and its lawyers. On cross-motions for summary judgment, Guilford County Superior Court Judge Allen Baddour granted the plaintiffs’ motion and denied the defendants’ affirmative defense of absolute privilege. 

Porter, the law firm defendants, and the fund appealed. They argued that their statements were made in the course of election protests, which were quasi-judicial proceedings to which the absolute privilege was applicable. 

Judge Toby Hampson, writing for a unanimous Court of Appeals panel in an Oct. 5 opinion, agreed with respect to Porter, who actually filed the protest, but affirmed denial of the protection of absolute privilege for the defense fund and the law firm defendants. 

“Even when attorneys are participants in a judicial proceeding, the absolute privilege only extends to statements made during the course of their participation in (or in preliminary matters related to) those proceedings,” Hampson wrote. “Thus, absolute privilege does not apply to allegedly defamatory statements made by an attorney when they are not participating in the judicial proceeding.” 

Privilege may apply to election protests 

Hampson first determined that the election protests at issue constituted quasi-judicial proceedings to which the absolute privilege against defamation suits might apply. 

As a general rule, a defamatory statement made in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even if it is made with express malice. The North Carolina Supreme Court has recognized the State Board of Elections acts as a quasi-judicial body in the context of considering protests concerning the conduct of an election. 

“Thus, election protest proceedings before County Boards of Elections fall squarely in the category of quasi-judicial proceedings,” Hampson wrote. “Therefore, statements made or submitted to a County Board of Elections in an election protest are statements made in the course of a quasi-judicial proceeding. Consequently, as a general principle, absolute privilege applies to defamatory statements made in the course of an election protest filed with a County Board of Elections.” 

Applying that principle to the various defendants, the court had little trouble finding that Porter was entitled to absolute privilege for the allegedly defamatory statements made in his protest. 

“Porter was the actual protestor in the Guilford County Protest filed against Bouvier and the Niehans,” Hampson wrote. “The allegedly defamatory statements made by Porter were those adopted by him and made on the protest form filed with the Guilford County Board of Elections upon which he authorized his signature as a party. Thus, Porter is entitled to the protection of absolute privilege from suit in this case.” 

No participation, no protection 

The law firm defendants and the defense fund failed to trigger the protection of absolute privilege, however. 

Although the law firm defendants were adamant that they were not “participants” in the election protest—stating that their efforts did not constitute legal work or the practice of law—they argued that because their allegedly defamatory statements were included in the election protest forms filed with the respective County Boards of Elections, they benefited from absolute privilege. 

But that was not the case, Hampson said.  

“The law firm defendants have disclaimed acting as attorneys for the protestors in the election protest proceedings,” he wrote. “They did not appear at the hearings before the Guilford and Brunswick County Boards of Elections on the protests. In fact, it does not appear the law firm defendants were licensed or authorized to practice law in North Carolina at the time the election protests were filed. As such, the allegedly defamatory statements attributed to the law firm defendants were not made while they were participating as counsel in the election protest proceeding.” 

Even acting as agents of Porter and Agovino by drafting and filing the protests was insufficient, Hampson said, because the law firm defendants were acting in their capacity as counsel to the defense fund, leaving the individual protestors to initiate and prosecute the actual protest proceedings pro se. 

“Thus, the statements attributed to the law firm defendants were not made by the law firm defendants in the course of a quasi-judicial proceeding and are not entitled to the protection of the absolute privilege against defamation suits,” he wrote. 

Hampson reached a similar determination with regard to the defense fund, which made no argument that it was a party, witness, potential witness, or acting in any representative capacity in the course of the election protest proceeding. 

“Indeed, the record here reflects the defense fund expressly made the decision not to take part in the election protest proceedings,” he wrote. “Instead, the defense fund authorized the law firm defendants to prepare the election protests containing false and allegedly defamatory accusations of voter fraud against plaintiffs, use those allegations to recruit individuals like Porter and Agovino, and convince them to adopt those accusations and file protests based on those false statements.” 

Jeffrey Loperfido, senior counsel at Southern Coalition for Social Justice (SCSJ) in Durham, represented the plaintiffs.  

“The defendants’ baseless claims of voter fraud, wielded in a last-ditch effort to sow doubt in the results of our state’s 2016 elections, upended the lives and reputations of innocent North Carolinians who were simply exercising their fundamental right to vote,” Allison Riggs, SCSJ co-executive director and chief counsel for voting rights, said in a statement. “We applaud the Court of Appeals’ ruling in favor of these North Carolina voters and vow to keep fighting so that no person experiences this kind of voter intimidating in the future. 

Philip R. Isley of Blanchard, Miller, Lewis & Isley in Raleigh, who represented the defense fund, declined to comment other than to point out that a petition for en banc rehearing by the Court of Appeals has already been filed on behalf of his client as well as the law firm defendants. (To date, no petition for such an en banc hearing has ever been successful.) 

Gary S. Parsons of Brooks Pierce in Raleigh represented the law firm defendants. Jewel A. Farlow of Greensboro represented Porter. Neither responded to a request for comment. 

The 31-page decision is Bouvier v. Porter (Lawyers Weekly No. 011-191-21). The full text of the opinion is available online at nclawyersweekly.com.