When attorney general candidate Dan Boyce filed a defamation lawsuit against Roy Cooper, his campaign committee and aides over a campaign television commercial, Bill Clinton was just wrapping up two terms as president and Jim Hunt was ending four terms as governor.
Thirteen years later, the lawsuit is back where it started in Wake County Superior Court.
There’s been no final ruling on whether the current attorney general libeled his 2000 Republican opponent in an ad about legal fees sought in a 1990s class-action tax case against the state. Cooper defeated Boyce by 5 percentage points.
A jury trial may finally occur after a judge set an April 28 date while meeting this month with lawyers involved in the case. The case continues as Cooper, a Democrat, plans for a 2016 campaign for governor.
The litigation has hardly been dormant. There have been at least three significant trial court rulings and three written opinions from the state Court of Appeals. The state Supreme Court and U.S. Supreme Court also has been asked several times to get involved, but they’ve declined to do so. Two Cooper campaign aides were removed as defendants. Depositions have been taken.
Gene Boyce, Boyce’s father and another plaintiff, still remains eager to try the case, saying the perception of the family’s integrity in the legal profession remains at stake due to a false ad. Cooper’s attorneys have sought unsuccessfully to end the case. They’ve defended the commercial and have said the other side can’t prove its contents are false.
Now 81 years old, Gene Boyce said in court that four potential witnesses have died since the lawsuit was filed.
“All I wanted to do is get a jury to say what the truth is,” Gene Boyce said.
The television commercial that ran in the final days before the November 2000 election said that Dan Boyce’s law firm “sued the state, charging $28,000 an hour in lawyer fees to the taxpayers. The judge said ‘it shocks the conscience.’ ”
The ad referred to a lawsuit filed by North Carolina residents who paid a tax on stocks and other securities that was ultimately found unconstitutional. These people, who paid the tax under protest, received a $146 million settlement. The proposed fees were rejected by the judge at the time and later reduced.
Dan Boyce has said his law firm wasn’t involved in the case at the time of the settlement – Gene Boyce and another law firm handled that portion of the case. Dan Boyce’s firm, which later included his father, helped handle another portion of the lawsuit filed by those who didn’t pay the tax under protest.
Lawyers for Cooper’s side wrote in briefs that Cooper and aide Julia White – now a senior policy adviser in the Attorney General’s Office – said the ad’s contents were based on research and Dan Boyce’s own campaign literature and statements taking credit for lots of litigation involving him, his law firm and family. Competing briefs also have questioned whether “negligence” or “actual malice” standards apply to determine whether people acted in a defamatory manner.
Court of Appeals rulings in 2002 and 2011 sided with Boyce on separate matters. The case is back before Superior Court Judge Osmond Smith, who asked the lawyers this month whether an out-of-court settlement was possible. Gene Boyce suggested in court it would be difficult without an apology and retraction.
Cooper, through a spokesman, declined to comment because the litigation is pending.
“We have tried to find a reasonable resolution to this matter for years and will continue to do so,” Cooper campaign spokesman Morgan Jackson said in a statement. “If a resolution cannot be reached, we look forward to telling our story in court.”
The lawsuit contends the purported defamation also harmed the professional reputation of Dan and Gene Boyce; Laura Boyce Isley, Dan’s sister; and Philip Isley, her husband. They all worked at the Boyce & Isley law firm, which has since disbanded. By the ad saying the law firm “charged” large fees, rather than requesting fees, the four attorneys are susceptible to allegations of violating State Bar’s rules against charging a “clearly excessive fee,” Gene Boyce said.
Hugh Stevens, a North Carolina media law attorney, said he’s bothered by the length of time it’s taken for the case to be resolved. But he also believes the 2002 Court of Appeals ruling misapplied the rules for libel law established by the state Supreme Court in the 1930s. Stevens said confusion remains in the legal field and a ruling by a higher state or federal court is needed.
“If a trial’s the only way to get there, then I guess that’s what needs to happen,” Stevens said.
The Cooper campaign isn’t paying for lawsuit legal expenses – rather they’re being paid through insurance policy claims, according to a document filed with the State Board of Elections by Cooper’s committee.
Barring a bombshell against Cooper at trial, the case probably won’t damage Cooper’s gubernatorial bid, said David McLennan, a political science professor at William Peace University in Raleigh. Republicans seeking to keep Gov. Pat McCrory in office are likely to use the case against Cooper if he loses.
Still, McLennan said, “most voters are not really going to pay attention because it happened so long ago.”
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