There’s been a lot of publicity about North Carolina Senate candidate Kay Hagan’s "lawsuit" against incumbent Senator Elizabeth Dole over a television commercial suggesting  that Hagan is "godless." 

The subject of this post is that there technically isn’t a lawsuit at all, at least not yet.  The court filing by Hagan illustrates an interesting quirk of North Carolina civil procedure.  In North Carolina, you can start a legal proceeding without filing the Complaint which typically begins a lawsuit.

That’s pretty unusual.  I’m not aware of any other state which has a procedure exactly like the one contained in Rule 3 of the North Carolina Rules of Civil Procedure, which lets a lawyer file a Summons to start a lawsuit and to then follow up twenty days later with a Complaint detailing the claims against the defendant. (Though North Dakota Rules of Civil Procedure 3 and 4(c) provide that you can start a lawsuit with a Summons and the Defendant can then demand that the Complaint be filed within twenty days).

The North Carolina procedure is colloquially called a "Summons without Complaint."  Our Rule 3 provides that while a lawsuit is ordinarily started with the filing of a Complaint:

A civil action may also be commenced by the issuance of a summons when

(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and

(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.

Why would a lawyer use this procedure?  One reason might be to toll the statute of limitations, which obviously wasn’t necessary given the very recent airing of the commercial, or to try to be first to the courthouse when there is a dispute over where a particular claim should be litigated, also not a particularly significant factor in the dispute between the candidates.

There is a North Carolina form for a lawsuit started without a Complaint, which is exactly what Hagan filed to initiate her claim against Senator Dole. The filing lays out the basis for the lawsuit, probably in more detail than Rule 3 requires, because the Rule requires only "preliminary notice" of the nature of the claim.  See, e.g., Morris v. Dickson, 14 N.C. App. 122, 187 S.E.2d 409 (1972). 

Among other things, the filing says:

One egregious potion of the advertisement is the photograph of Plaintiff along with the voiceover that implies it is Plaintiff’s voice and her statement [saying "there is no God"].  The voiceover, clearly presented to appear to be Plaintiff’s, was an intentional attempt by Defendants to deceive the citizens of North Carolina and malign the Plaintiff and subject her to contempt.  Plaintiff has never made such a statement.  Despite knowing this, Defendants purposely made it appear that she did.

There is no requirement that the named defendant respond to the Summons without Complaint.  See, e.g., Hasty v. Carpenter, 40 N.C. App. 261, 252 S.E.2d 274, cert. denied, 297 N.C. 453, 256 S.E.2d 806 (1979).  Senator Dole’s lawyers, however, went ahead and filed a Motion to Dismiss on October 31st. 

The Motion says that the Summons without Complaint is "essentially a political press release that attempts to manufacture causes of action where none clearly exist under well-settled North Carolina and Federal case law."  It asserts that "the factual assertions complained of in the political advertisement are unequivocally true, are protected speech and are absolutely privileged."

This position of absolute truth is consistent with a letter which Senator Dole’s lawyers sent to counsel for Hagan, before the lawsuit was filed, asserting that the ad contains "totally accurate content."  That letter was in response to a cease and desist letter sent by Hagan’s lawyers.

If you are interested in the legal basis for a lawsuit over political advertising, you should check out this post by Eric David at the Newsroom Law Blog.  That’s a new blog published by lawyers in Brooks Pierce’s Raleigh office.  They focus on issues affecting broadcasters and news reporters.