On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4098-95.
Before Judges Wefing, Cuff and Lisa.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 13, 2001
In this case we are called upon to consider the role of New Jersey Public Broadcasting Authority (Authority) in deciding how to fulfill its responsibility to provide news coverage to the citizens of New Jersey of our gubernatorial elections as well as the role of the courts in reviewing those journalistic decisions of the Authority. The trial court, after nine days of trial in this non- jury matter, granted defendant's motion to dismiss at the end of plaintiff's case under Rule 4:37-2(b). After reviewing the record and considering the arguments advanced on appeal, we affirm.
This litigation is an outgrowth of the 1993 New Jersey gubernatorial contest, in which Christine Todd Whitman, the Republican candidate, ultimately defeated then-governor James J. Florio, who was seeking re-election as the nominee of the Democratic Party. For reasons that are unclear, the 1993 election drew a large number of independent candidates for governor, seventeen in all. Plaintiff was one of those seventeen. Some of these seventeen were the representatives of organized political parties, such as the Libertarians and the Socialist Workers. Plaintiff's campaign, on the other hand, was not affiliated with a particular political party at all; she ran under the slogan "Maximum Citizen Involvement."
Plaintiff had been active in political matters for a number of years; eventually she concentrated her involvement on issues related to education. In 1977, she founded the Parent Information Center (PIC), a non-profit organization which provided information and assistance to parents of handicapped children seeking to meet their children's educational needs.
Plaintiff operated PIC from her home in Teaneck.
Plaintiff was unhappy with the approach taken by the two major parties regarding questions of educational policy and reform and decided to enter the 1993 gubernatorial contest. She felt that her years of advocacy provided her with some name recognition among people familiar with questions of educational policy and a base from which to work. She advocated abolishing the Department of Human Services and merging its budget and staff with the Department of Education. She favored utilizing the schools on a twelve-month basis to provide, in addition to increased schooling, day care and health care for the community.
Plaintiff was of the view that her candidacy was upsetting to individuals in the education "establishment" and to attorneys. According to plaintiff, attorneys were upset with her because, through her work with PIC, she had advanced the concept of non- lawyer representation and advocacy.
To support her contention that her candidacy was upsetting to some, she pointed to an incident she said had occurred a few years earlier. According to plaintiff, she learned of corruption in the 1980s within the state Department of Education with respect to the manner in which the Department handled federal funds targeted for special education. Plaintiff's allegations reached the Federal Bureau of Investigation and she said she was asked to wear a "wire" to assist its investigation. She said concern for her safety and that of her family led her to decline the Bureau's request. She said that she had received telephone threats urging her to drop the matter. Once plaintiff determined to enter the gubernatorial race, she severed her ties with PIC so as not to jeopardize its independent, non-profit status. Her husband served as her campaign manager and campaign treasurer; her campaign office was in their home. They campaigned every evening and every weekend across the state. Over the course of the campaign, she raised approximately $7,400.
Her campaign, however, did not generate much news coverage. Indeed, in a failed attempt to generate such coverage, she and her husband set up a campaign post early one morning at an entrance onto Route 4 in Teaneck. They knew that their actions in selecting that site would have the result of backing up commuter traffic approaching the George Washington Bridge and believed they would, in consequence, be arrested. Their arrest, they believed, would lead to news coverage of her campaign. The police, however, took the view that the two were exercising their First Amendment rights and declined to arrest them; the only result of their action was a series of angry calls from commuters who had been inconvenienced. Defendant Authority operates a public television network for the state, New Jersey Network (NJN). Plaintiff believed that NJN was not providing fair, equal and balanced coverage of the campaign because it was focusing almost exclusively on Mrs. Whitman and Mr. Florio, with practically no coverage of the remaining seventeen candidates.
On October 20, 1993, plaintiff filed an action against the Authority and others in the United States District Court for the District of New Jersey. In that federal suit, she complained of the Authority's allegedly unfair news coverage of the campaign. The District Court ultimately dismissed this complaint, concluding that her federal constitutional claims were insufficient and that a federal court should not address her state law claims. Arons v. Donovan, 882 F. Supp. 379 (D.N.J. 1995). Shortly after the District Court dismissed her federal action, she filed the instant matter in state court.
The trial of this matter spanned nine days. Plaintiff called a variety of witnesses, including William Jobes, the director of news and public affairs at NJN, Michael Aron, the senior political correspondent for NJN, Michael Scully, another of the independent candidates in the 1993 race, her husband, and herself. She also called Madeleine Koszyk, who testified as an expert on the political process in New Jersey and the political issues concerning the gubernatorial campaign in 1993. Ms. Koszyk expressed the opinion that plaintiff's candidacy posed a threat to the Whitman and Florio campaigns, particularly in light of the extremely narrow margin of some 1,700 votes by which Governor Florio had been defeated in an earlier campaign by ...