This is an action for malicious prosecution based on a number of civil and administrative proceedings instituted in 1980. The remaining defendants participated in varying degrees in bringing these actions, and all have moved for summary judgment.*fn1 They are the National Education Association (N.E.A.), the New Jersey Education Association (N.J.E.A.) and two of its field representatives, Ann Whitford and Ronald Harvey, the Cranford Education Association (C.E.A.) and ten individual officers and members of that association, and finally the attorneys who brought the 1980 actions.
All parties have acknowledged the disfavor in which actions for malicious prosecution are viewed under our law. Such law suits tend to chill free access to our courts. See Penwag Property Co., Investors Inc. v. Landau, 76 N.J. 595, 597-598 (1978); Devlin v. Greiner, 147 N.J. Super. 446 (Law Div.1977). This disfavor is manifested in the heavy requirements imposed upon a plaintiff to establish a prima facie case. Plaintiff must show that the original suit was (1) instituted without reasonable or probable cause; (2) actuated by malicious motive; (3) ended in favor of plaintiff and (4) resulted in special grievance to plaintiff. The absence of any one of these elements is fatal. See Ackerman v. Lagano, 172 N.J. Super. 468, 473 (Law Div.1979).
All of the underlying actions were terminated in favor of plaintiff. Furthermore, at this junction, no serious challenge
has been raised to plaintiff's claim of special grievance. There is sharp dispute, however, as to the existence of malice and probable cause. Because, as discussed hereafter, there was probable cause sufficient to justify the bringing of the underlying actions, thereby defeating plaintiff's claim, it will be unnecessary to consider arguments raised on the issue of malice.
Relevant facts, viewed in a light most favorable to plaintiff, may be summarized as follows. Information was received by the C.E.A. which suggested that Dr. Paul, the Superintendent of Schools in Cranford, was engaged in activities the Association believed to be improper. It contended that, among other things, Dr. Paul was illegally recording phone conversations with its members, placing board of education employees under the surveillance of private investigators and intercepting mail directed to the board.
Early in 1980 the C.E.A. enlisted the assistance of the N.J.E.A. to halt the purportedly offensive conduct. After some investigation by field representatives of the N.J.E.A., the C.E.A. filed the lawsuits and administrative proceedings which form the basis of this litigation.
The source of the information which led to the prior legal actions is debated. Dr. Paul contends that all information was received from Charles McCarty, a board member who just recently had been graduated from Cranford High School. While defendants suggest a number of other sources, Dr. Paul's position is accepted for the purpose of this motion.
There are a paucity of cases in this jurisdiction dealing with the malicious prosecution of civil proceedings. However, the definition of probable cause was set forth in Mayflower Industries v. Thor Corp., 15 N.J. Super. 139, 153 (Ch.Div.1951). The court stated: "probable cause for the institution of a civil suit is the presence of reasonable ground for belief that the cause of action exists supported by circumstances sufficient to warrant an ordinarily prudent man in the belief that it exists. Prosser, [ Torts ] § 96, p. 871."
The deficiency of this definition is its failure to indicate how much investigation, if any, must a plaintiff in a civil suit perform prior to instituting suit. How much can that plaintiff rely on pretrial discovery to prove his case?
In discussing the difference between reasonable grounds for a criminal suit and for a civil suit, the Restatement ...