For the Court of Appeals to have appellate jurisdiction over most interlocutory orders, the interlocutory order must either resolve a particular claim and be certified to that effect, N.C. Gen. Stat. Section 1A-1, Rule 54(b), or affect a substantial right, N.C. Gen. Stat. §§ 1-277(a) and 7A-27(b)(3) (2019). Here, the plaintiff alleged myriad claims sounding in defamation and negligence arising from statements made at an out-of-court press conference during pending litigation. On a motion to dismiss, defendants asserted that the defamation claims were barred by absolute privilege and that the negligence claims were nothing more than the defamation claims restated. After the superior court denied the motion to dismiss and did not issue a Rule 54(b) certification, defendants appealed. The Court of Appeals held that defendants were not entitled to absolute immunity and therefore dismissed the interlocutory appeal as not affecting a substantial right.
The defendants made two arguments for extending absolute immunity to cover their statements. The first was that the statements were protected as having been made during a judicial proceeding. The Court of Appeals recognized that the phrase judicial proceeding has been incrementally extended beyond the confines of the courtroom itself to include statements in pleadings, statements to potential witnesses, statements to counsel at pre-deposition conferences, and statements made between the parties or their attorneys during litigation, but considered this too great a leap. The Court of Appeals ultimately held that the purpose of judicial immunity, the proper and efficient administration of justice, would not be served by extending it to cover statements made to the media at press conferences. The Court of Appeals ultimately could not overcome its hesitance around the setting—a press conference for the media—of the statements and this drove the decision.
The second asserted basis for absolute immunity was that the statements were protected by legislative immunity. This was rejected as the statements were not made during an official meeting of a legislative or quasi-legislative body and were not between members of the quasi-legislative body. This was not the primary thrust of appellants’ argument as it required multiple extensions of the privilege—to the defendant organization (a local political subdivision) and to the setting of a media press conference. The Court of Appeals did not rule on whether the defendant organization would be covered by the privilege, instead relying on its earlier holding that absolute immunity did not extend to statements made at a media press conference.
The substantive takeaway is that if a litigant wants the Court of Appeals to extend some privilege, it is necessary to demonstrate how the relief sought is only a small extension of the current scope of the privilege. And if a litigant is fighting against the extension of a privilege, then it is critical to demonstrate how the relief sought is separated by a chasm from the scope of the privilege as previously recognized. It is unlikely that the appellants here could have prevailed in any event, but this lesson is a microcosm of a much larger principle of litigation generally and appellate litigation specifically—framing is everything. Just as in war the commander who chooses the battleground holds the advantage, the litigant who more successfully frames what the case is about and what is at stake is well-positioned for victory.