The Docket: The AG’s Race Goes to Court

Dan Bishop is suing the campaign of Jeff Jackson, his Democratic opponent in the state attorney general race, for defamation. 

Courthouse News first reported on the lawsuit, which was filed October 3 in Union Superior Court. It seeks at least $75,000 in damages and accuses Jackson’s campaign, the state Democratic Party, Democratic Attorneys General Associations Inc., the association’s subsidiaries, and 10 other unnamed defendants of conspiring to spread “defamatory” information about Bishop’s legal career. 

The lawsuit claims that on July 29, the marketing research firm Dynata LLC called a Union County resident to conduct a political survey. A Dynata representative asked the person a series of questions, including this one: “Would you be more or less likely to vote for Dan Bishop for attorney general if you knew that, as a lawyer, he represented people who stole money from the elderly?” 

Bishop says the factual assertion in that question is false. 

The lawsuit makes a number of connections between Dynata, a news article, and the named defendants without any clear sense of what evidence Bishop has to bolster his allegations. For example, Bishop claims that either all or some of the defendants hired Dynata and provided the firm with the information used for the question. But the lawsuit never says whether the company had a contract with any of the defendants. 

The lawsuit also claims that the factual assertions in the question are similar to those made in a June 7 article in The New Republic, which is not named in the suit. That article alleged that Bishop “worked multiple times with organizations accused of questionable business practices” and cites five civil cases.

The lawsuit further alleges, without clear evidence, that the “raw material” for the article came from opposition research that the defendants either obtained or received, and that the defendants “solicited the publication of the article.” 

Bishop’s attorneys write that they sent a letter to Michael Tomasky, the magazine’s editor, on September 19 stating that the article was defamatory and demanding a retraction. Underneath the online story, the magazine says it misstated one of five cases it reported on and that the article was “updated for clarity,” without detailing the exact changes made. Bishop alleges the article still contained defamatory and false information. Tomasky did not immediately respond to an email requesting comment. 

Pat Ryan, a campaign spokesman, did not immediately respond to a question about whether the campaign will seek further legal action. 

The campaign noted in a statement that the last two Democratic candidates for state attorney general, Josh Stein and Roy Cooper, also faced litigation over alleged defamation. Stein ultimately won the litigation, and Cooper later apologized. Bishop said the campaign reluctantly had to act: “The Bishop campaign will not sit back and yet again allow last-minute fabrications to be published or republished in the final weeks of a campaign.”

Dynata and the Democratic Attorney Generals Association did not respond to a request for comment. The state Democratic Party called the allegations “ridiculous and desperate.” 

Jackson said in a statement that he looked forward to a “swift resolution” and then took a swipe at Bishop’s seemingly continued support for Lt. Gov. Mark Robinson’s gubernatorial campaign, which has collapsed under the weight of scandal: “Mr. Bishop says he wants to be Mark Robinson’s sidekick and we imagine this will have as much success as Mark Robinson’s legal actions.”

—Michael Hewlett

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Orders in the Courts

When the remnants of Hurricane Helene ravaged the rugged mountain communities of western North Carolina, it also caused upheaval in the state courts there.

Chief Justice Paul Newby issued an order on September 30 that gave courts in 28 of the heavily damaged counties leeway to depart from deadlines to file documents, hold hearings, and more.

On October 11, he extended the order for another two weeks for 13 of those counties—Avery, Buncombe, Haywood, Henderson, Jackson, Madison, McDowell, Mitchell, Polk, Rutherford, Transylvania, Watauga, and Yancey.

“Our hearts ache as we see the devastation Hurricane Helene has caused western North Carolina,” Newby said in a video message “We’re thankful for no reports of loss of life or serious injuries among our immediate court staff family. Yet we mourn with the families of those who have lost loved ones, including one of our bailiffs in Macon County and a jailer in Madison County.”

The storm left some of the court colleagues without homes or “necessities,” Newby said. The Administrative Office of the Courts, or AOC as it’s often called, and its judicial partners are supporting those in need by providing hotel rooms, relief supplies, and direct support through the Employee Assistance Program.

Newby added that judicial officials had been conducting proceedings required by law either in person or virtually. For those courthouses expecting long-term broadband outages, AOC has provided satellite internet services. The chief justice said he signed an order to allow out-of-state lawyers to provide pro bono services to indigent victims of Helene under the supervision of a “legal services agency.”

“The judicial branch will continue to support its officials, employees and the public in our western counties,” Newby said. “Having started my legal career in Asheville and throughout western North Carolina, I can speak of the strength and resilience of our western friends. The road to recovery will be long. But by God’s grace, there’s no challenge too great if we work together.”

The Mitchell County courthouse suffered flooding and is closed until further notice, according to the AOC.

In Buncombe, one of the hardest hit counties, all civil superior court trials scheduled for October have been delayed. Hearings in some civil cases will be held remotely over Webex. Priority in the district and superior courts there will be given to in-custody cases and first appearances.

Although the Buncombe courthouse is open, the water system is still not functioning so portable toilets have been set up outside. Court officials are discouraging people from coming in person if possible and instead using electronic filing options. All jurors have been excused through the end of the month.

AOC Director Ryan Boyce sent two memos on September 30, the first of which informed local offices that “the Chief Justice has authority to approve the use of an alternate location to ensure the continuing operation of essential trial court functions, including clerk and magistrates’ duties, if the courthouse is inaccessible, unsafe, or inoperable due to catastrophic conditions resulting from severe weather.” It also instructed local AOC officials to work with county or city government to find an alternate site for court functions, if needed, that were inside the county borders.

The second memo authorized magistrates to work outside their county if a chief district judge  in the affected region has requested support to address emergency staffing or docketing conditions, and if their home chief district judge approved.

—Anne Blythe

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‘Cheat Sheet’ Case Rejected

The U.S. Supreme Court has denied an appeal from Russell William Tucker, a death-row inmate who alleges Forsyth County prosecutors illegally used a “cheat sheet” to strike all five Black potential jurors from his 1996 trial. 

The court’s October 7 decision wasn’t a surprise to Gretchen Engel, Tucker’s attorney and executive director of the Center for Death Penalty Litigation in Durham. She said it is rare for the U.S. Supreme Court to review cases such as Tucker’s at this point. But she and Tucker are still disappointed, particularly since the decision came after the North Carolina Supreme Court rejected Tucker’s claims in December 2023. 

“I continue to believe that the North Carolina Supreme Court’s adjudication of his claims was not consistent with the law,” she said. Tucker also has a pending appeal in the U.S. District Court. 

Legal experts had been watching his case as a test of whether state appellate courts would consistently enforce the 1986 U.S. Supreme Court decision in Batson v. Kentucky, which prohibits the use of race in jury selection. 

North Carolina doesn’t have a good history on that front. Of 114 North Carolina cases decided on the merits between 1986 and 2016, none were overturned. It wasn’t until 2022 that the state Supreme Court vacated a conviction based on a Batson claim, when the court had a 4-3 Democratic majority. It has since flipped to a 5-2 Republican majority. That majority may widen to 6-1, depending on who wins the state Supreme Court race between incumbent Democrat Allison Riggs and Republican Court of Appeals Judge Jefferson Griffin. 

Last year, the court considered four cases with jury discrimination claims, including Tucker’s, and denied all of them. In Tucker’s case, Justice Phil Berger Jr., writing for the conservative majority, said it “defies logic and common sense” that Forsyth County prosecutors would use a “cheat sheet” to skirt the Batson ruling. 

Engel argued in her petition that the decision ignored overwhelming evidence of jury discrimination, including that in Forsyth County, prosecutors struck Black people at more than twice the rate they did other races. Engel also noted Justice Anita Earls, the only other Democrat on the court, wrote in her dissent that there was ample evidence that prosecutors read from a training document entitled “Batson Justifications: Articulating Juror Negatives” to justify their strikes of Black potential jurors.

Tucker’s post-conviction attorneys found the document 20 years after his conviction, tucked inside a prosecutor’s notebook under a tab marked “jury selection.” One of the prosecutors, Rob Lang, got the document from a training hosted by the N.C. Conference of District Attorneys a little more than six months before Tucker’s trial. 

—Michael Hewlett

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Around The State

Mark Robinson and the Suspension of Disbelief

Professional wrestling explains much of what you need to know about the Republican gubernatorial candidate’s political rise and fall.

N.C. Election Guide: See Who’s On Your Ballot

The Assembly’s voter guide lets you to preview your ballot and learn more about the candidates.

Election Turmoil Comes to a Rural County

The Montgomery County elections chief’s job is in jeopardy after an online provocateur criticized her work and commenters joined the fray.