On appeal from Superior Court, Law Division, Middlesex County.
Antell, Brody and Long. The opinion of the court was delivered by Antell, P.J.A.D.
[215 NJSuper Page 234] This appeal focuses upon a libel action arising out of a local political campaign in East Brunswick during the fall of 1984.
At the time of the alleged libelous statements William Fox was the Mayor of East Brunswick, and he contends in this suit that he was the victim of false and defamatory statements and statements which portrayed him in a false light. On this appeal, defendant Jack Hennessey challenges an order dated July 3, 1986 directing him to answer detailed interrogatories which inquire into his personal financial and business affairs as well as those of his wife who is not a party to the action.
Plaintiffs are public figures within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) and they may therefore recover for defamation only if the defamatory or false light statement was made with actual malice, that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-280, 84 S. Ct. at 725-726; Time, Inc. v. Hill, 385 U.S. 374, 387, 87 S. Ct. 534, 541, 17 L. Ed. 2d 456, 466-467 (1967). "Reckless disregard" is defined as a "high degree of awareness of probable falsity," for proof of which plaintiff must present "sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth" of the statements. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262, 267 (1968). An error of judgment is not enough. Time, Inc. v. Pape, 401 U.S. 279, 290, 91 S. Ct. 633, 639, 28 L. Ed. 2d 45, 53 (1971); Lawrence v. Bauer Pub. & Print Ltd., 89 N.J. 451, 466 (1982), cert. den., 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982).
While discovery may ordinarily be had regarding any relevant matter involved in a pending action, discovery into a defendant's financial status is barred absent a claim for punitive damages and the assertion of a supporting cause of action. Defendant contends, and plaintiffs do not dispute, that " prima facie proof of the legal right to recover punitive damages is a prerequisite to the discovery of a defendant's financial condition." Stern v. Abramson, 150 N.J. Super. 571, 573 (Law Div.1977); Gierman v. Toman, 77 N.J. Super. 18, 25 (Law
Div.1962). We approve that proposition. Since the right of plaintiffs herein to punitive damages hinges ultimately on proof of actual malice, prima facie proof thereof is prerequisite to pretrial discovery of defendant's financial worth.
In granting plaintiffs their requested relief the trial court acted only on the papers before it and without oral argument. Although plaintiffs' moving papers noticed a return date of July 18, 1986 in the Middlesex County Court House, both parties were informed around July 1, 1986 that there would be no oral argument and that the matter would be decided on July 3. On July 3, 1986 the court entered its order requiring defendants to answer plaintiffs' interrogatories by July 31, 1986.
No findings accompanied the court's order. In lieu thereof, for support of the order under review plaintiffs rely upon the following statement made by the court at a hearing on May 9, 1986, involving whether defendant was obliged to answer net worth questions on depositions: "[A]s far as I am concerned, and this is going to end it now, a prima facie case has been made. The discovery requested will be given." Earlier in that hearing the court had stated that the complained of statements were half truths and, when put together, painted "only one picture, that the person I am talking about is a crook, is on the take." No further findings were made at that hearing and the question of whether plaintiffs had presented a prima facie case of actual malice was not addressed.
The trial judge's general observations were inadequate for a disposition of the question presented. Specific findings were required as to primary facts and conclusions based thereon. As we have said,
Since the matter must be remanded for further proceedings we state for the guidance of the trial court that plaintiffs' prima facie case for disclosure of financial worth must be sufficient to permit a rational fact-finder to find actual malice by clear and convincing evidence. This is the applicable standard of proof for recovery under the First Amendment in a libel action such as this. New York Times Co. v. Sullivan, supra, 376 U.S. at 285-286, 84 S. Ct. at 728-729, 11 L. Ed. 2d at 710; Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 155 (1986); Lawrence v. Bauer Pub. & Print. Ltd., supra, 89 N.J. at 462, 466. In Dairy Stores, Inc., supra, at 156-157, the Supreme Court rejected this criterion for evaluating a plaintiff's proofs submitted in response to a defendant's motion for summary judgment. It was held to be constitutionally required in Anderson v. Liberty Lobby, Inc., 477 U.S. , 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), but our Supreme Court elected instead to "remain with the traditional test for summary judgment," reasoning "that the clear-and-convincing test inevitably implicates a weighing of the evidence, an exercise that intrudes into the province of the jury." Dairy Stores, supra, 104 N.J. at 156-157. In our view, that decision is not pertinent to the issue here presented for several reasons.
First, Dairy Stores specifically noted that it was "predicated on actual malice as a common-law concept," so that the standard applicable to the grant of summary judgment was there decided as a matter of state, rather than federal or ...