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Lynch v. New Jersey Education Association

July 27, 1999


The opinion of the court was delivered by: Pollock, J.

Plaintiff, New Jersey State Senator John A. Lynch, Jr., claims that defendants defamed him during his successful campaign for re-election as a state senator. The Law Division denied defendants' motion for summary judgment dismissing the complaint. In an unpublished opinion, the Appellate Division reversed. We affirm in part, reverse in part, and remand to the Law Division.


The appeal arises from events surrounding the 1991 campaign for state senator from the Seventeenth District. That district includes New Brunswick and several other municipalities in Middlesex County, as well as one municipality each in Somerset and Union Counties. Senator Lynch is a prominent public official, having served as a state senator since 1981, including one term as president of the senate. He also served three terms as the Mayor of New Brunswick.

In 1991, defendant Edward Tiller, a Republican, ran against Senator Lynch, a Democrat. The remaining defendants are Tiller's supporters or members of his campaign organization. Prominent among them is the New Jersey Education Association (NJEA or "the Association") and New Jersey Education Association Political Action Committee (NJEAPAC). Defendant Betty Kraemer was the President of the NJEA and Chairperson of NJEAPAC. Defendant Gerald Matcho was the Treasurer of the NJEAPAC fund set up for Tiller. The NJEA challenged Senator Lynch's re-election because he had been the principal sponsor of the Quality Education Act of 1990, which the NJEA opposed. According to the trial court, the NJEA was "out to get Lynch at all costs."

The involvement of the NJEA and NJEAPAC in Tiller's campaign extended beyond funding. They organized Tiller's campaign headquarters and provided him with free office equipment, lobbyists, researchers, speech-writers, and other workers. Two months before the election, some NJEA members, including defendant Wayne Dibofsky, the NJEA's Associate Director for Governmental Relations, and defendant Karen Joseph, its Associate Director for Media Relations, moved their offices to Tiller's campaign headquarters. Dibofsky, a lobbyist, and Joseph reviewed campaign literature. Joseph also wrote speeches and press releases for Tiller.

Defendant Barry Brendel, a political consultant, was hired by "Friends to Elect Ed Tiller," the Tiller campaign organization. Five years earlier, Lynch had retained Brendel, of defendant Barry Brendel Associates, as a political consultant during Lynch's 1986 New Brunswick mayoral campaign. In 1991, Brendel switched sides and drafted most of the material reviewed by Dibofsky and Joseph. Tiller gave final approval to all published material.

The 1991 campaign was marked on both sides by invective. Senator Lynch issued an advertisement depicting Tiller with a long "Pinocchio nose." The caption read "Good Guys Don't Lie." Another advertisement, claiming that Tiller had lied about his military service, asked rhetorically, "Did thousands die in Korea so Ed Tiller could defame their honor?" Other mailers and advertisements asserted that Tiller had lied about his educational background, business and publishing experience, military record, and qualifications to be a senator.

Tiller's campaign statements were even more vituperative. In his complaint, Senator Lynch alleges that the Tiller organization's campaign materials, specifically a newspaper advertisement, a mailer, and a flier, defamed him. The advertisement was published on October 21, 1991, in The Banner, a free weekly New Brunswick newspaper. In relevant part, the advertisement read: "John Lynch:

THE BOSS [photograph of Senator Lynch] OF BOSSES

He's been a partner or officer in three mob- owned companies fined for illegal toxic dumping. He's been under federal investigation for corruption in New Brunswick. As Mayor of New Brunswick, his Law Director and Police Chief were both convicted of corruption. He used city funds to loan money to a builder so that the builder could pay off a mortgage owed to a Lynch-owned firm. There were 12 separate scandals during his years as Mayor. Now his organization has been caught forging voter registration documents so he can pad his vote on Election Day. And that's just the beginning . . .

You can tell a lot about a person by the company he keeps.

Sure a lot of people know someone who's gone bad . . . but John Lynch knows nothing but bad people. Mobsters as business partners. Mobsters as clients. Major administration officials indicted and convicted one after another. And continual ethics complaints for his own shady business dealings. With this kind of company, no wonder John Lynch doesn't have time for us anymore."

The second series of statements appeared on a postcard mailer. On front and back, the mailer repeated many of the allegations of the "Boss of Bosses" advertisement. It then quoted a book by Alan A. Block and Frank R. Scarpitti, Poisoning for Profit: The Mafia and Toxic Waste in America 150 (1985):

"Among the individuals associated with Positive Chemical and Chelsea Terminal were John A. Lynch, Jr., the mayor of New Brunswick, New Jersey, and John Albert, who had a history of arrests for organized crime matters . . . for crimes arising out of a massive organized gambling and narcotics ring.

It turned out that Albert . . . and Lynch also owned the notorious toxic waste handling firm known as A to Z Chemical Company . . . which was recently condemned."

Both the advertisement and the mailer were identified as having been "Paid for by Friends to Elect Ed Tiller."

The third piece, a flier, was not so identified. Defendants deny any responsibility for it. The flier's text began,

"This is NO LIE: John Lynch is CONNECTED to the UNDERWORLD . . ." There followed a photograph of an article from the Home News, a newspaper of general circulation in Middlesex County. The article, entitled "Mob Hit Suspected in DiGilio Slaying," stated that a suspect in the mob murder of John DiGilio was Louis Auricchio, a reputed member of the Genovese crime family. Paragraphs identifying Auricchio as Lynch's brother-in- law were circled. The flier concluded: "Our County & State Deserve Better than a MOB-CONNECTED POLITICIAN."

All defendants disclaimed any connection to the flier. Kraemer and Matcho denied any involvement in publishing any campaign materials. Dibofsky and Joseph admitted responsibility for editing and verifying the contents of materials. They asserted, however, that the information in the "Boss of Bosses" advertisement and the mailer came from reputable newspapers and from the book, Poisoning for Profit. Dibofsky and Joseph relied on the newspaper articles to support most of their accusations. Joseph also verified the information printed in Poisoning for Profit with one of the book's authors.

Senator Lynch insists that the "John Lynch" described in Poisoning for Profit is another person, John G. Lynch. Cf. John McLaughlin, Teachers Could Learn a Lesson from This Lawyer, Star-Ledger, Feb. 7, 1999, at 3 (stating that Senator Lynch is not John G. Lynch). In 1985, Senator Lynch obtained from the book's publisher a letter promising to correct any misstatements. Finally, Senator Lynch contends that from Brendel's work on Lynch's previous campaign, Brendel knew that Senator Lynch was not the John G. Lynch identified in the book.

All defendants moved for summary judgment. In addition to contending that none of the statements was libelous as a matter of law, defendants also contended that Senator Lynch failed to show by clear and convincing evidence that they had published the statements with actual malice. The Law Division disagreed.

Viewing the facts in the light most favorable to Senator Lynch, the court determined that a jury could find in his favor. Specifically, the court determined that the campaign literature was "reasonably susceptible to a defamatory meaning by persons of ordinary intelligence taking the statements in context [and] considering the publications as a whole." The court further found that the case presented questions of fact and that "ample evidence" existed of defendants' malice. Consequently, the court denied the motions of Kraemer, ...

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