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Marchiano v. Sandman

Decided: March 25, 1981.

ROBERT MARCHIANO AND MARGARET MARCHIANO, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
CHARLES W. SANDMAN, INDIVIDUALLY AND AS ATTORNEY FOR RALPH D. KOEHLER, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Cape May County.

Seidman, Antell and Lane. The opinion of the court was delivered by Antell, J.A.D.

Antell

Defendant appeals from a judgment in defamation based upon a jury verdict awarding plaintiff $25,000 compensatory and $50,000 punitive damages. Defendant is an attorney and plaintiff, an officer of the Cape May Police Department. On June 8, 1975 plaintiff forcibly arrested Ralph Koehler, who was thereafter indicted under N.J.S.A. 2A:99-1 for assaulting an officer. Defendant represented Koehler and in connection therewith made unprivileged public statements that plaintiff had unmercifully and maliciously beaten Koehler, that he had filed a false complaint against Koehler and that he had lied before the grand jury which indicted Koehler. These statements form the basis of plaintiff's claim for which recovery was allowed.

Notwithstanding numerous claims of error and irregularities in the proceedings below, we confine our attention to two issues which we notice as plain error.

As a police officer plaintiff is a public official within the meaning of New York Times v. Sullivan , 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). This is conceded. Also, see La Rocca v. New York News, Inc. , 156 N.J. Super. 59, 62 (App.Div.1978). As such, he is barred from

The trial judge correctly charged the foregoing standard in his instructions to the jury. Error, however, was committed in his discussion concerning proof of actual malice. On this topic he first explained that such proof may be either "intrinsic" or "extrinsic." Extrinsic proof, he went on to say, could consist of

In Beckley Newspapers Corp. v. Hanks , 389 U.S. 81, 88 S. Ct. 197, 19 L. Ed. 2d 248 (1967), the trial judge charged the jury that it could find for plaintiff, a public official, if it determined that defendant had published certain defamatory editorials "with bad or corrupt motive" or "from personal spite, ill will or a desire to injure plaintiff." Although the Supreme Court did not base its decision thereon, it clearly indicated that the instructions were "clearly impermissible" as an "erroneous interpretation of New York Times." Id. at 82, 88 S. Ct. at 198.

The issue was confronted more directly in Greenbelt Coop. Asso. v. Bressler , 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970). There the challenged instructions defined malice as "spite, hostility, or deliberate intention to harm." Such were held "constitutionally insufficient where discussion of public affairs is concerned." Id. at 10, 90 S. Ct. at 1539, quoting Rosenblatt v. Baer , 383 U.S. 75, 84, 86 S. Ct. 669, 675, 15 L. Ed. 2d 597 (1966).

We perceive no material distinction between the instructions considered by the foregoing opinions and those herein. Whereas

the instructions of Beckley and Greenbelt equate actual malice with ill will and an intent to harm, those before us authorize the inference of actual malice from proof of such ill will. The effects of both are identical. In either case the jury is free to substitute the test of ill will for the constitutional standard of actual knowledge or reckless disregard for the truth.

In his opinion denying defendant's post-trial motion for relief from the judgment the trial judge stated that his references to ill will and intent to harm were made only with regard to the issue of punitive damages. It is true that the references do appear in relation to punitive damages. But they also appear earlier in the charge where they were so related to the proof of actual malice as to leave no doubt that they invited the jury to decide this vital issue on the erroneous principle ...


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