Bouvier v. Porter

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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