On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-202-03.
The opinion of the court was delivered by: King, P.J.A.D. (Retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Cuff, Hoens and King.
This case involves the scope of the absolute litigation privilege. We conclude that the Law Division judge's decision exceeded the scope of this absolute privilege in absolving an attorney and her client from liability to a newspaper reporter. We affirm in part, reverse in part and remand for further proceedings.
Plaintiff is a newspaper reporter who sued for defamation based on a letter sent by defendant Linda B. Kenney, an attorney, to plaintiff's employer. At the time Kenney sent the letter, she was representing defendant Robert L. Tarver, Jr., in litigation against his employer, the New Jersey Office of the Public Defender (OPD). Kenney claims that this letter was protected by the absolute litigation privilege because she sent it in the course of and in furtherance of Tarver's law suit and it was related to that proceeding. The Law Division judge agreed and dismissed the action. The judge rejected Kenney's alternative claim that the letter was sent in contemplation of litigation against plaintiff and her employer, the Asbury Park Press.
This is the procedural context. On January 9, 2003 plaintiff Carol Gorga Williams filed a complaint in Superior Court, Law Division, Monmouth County against defendants Linda B. Kenney and Robert L. Tarver, Jr. She alleged private-figure defamation (based on negligence), public-figure defamation (based on actual malice), false-light invasion of privacy, and intentional infliction of emotional distress. The defendants asserted the absolute litigation privilege as a defense.
Plaintiff moved to strike this defense as a matter of law. Both defendants then cross-moved for summary judgment based on the applicability of the litigation privilege. The motion judge granted defendants' motions for summary judgment and dismissed the complaint.
On July 27, 2001 plaintiff, a courthouse reporter for the Asbury Park Press, wrote an article about defendant Tarver, the head of the Ocean County Public Defender's office. She reported allegations made against Tarver for falsification of time records to conceal the extent of his outside employment as a television commentator. The article contained references to Gerald Boswell, an attorney in the Ocean County Public Defender's office, who had initiated the complaint. Plaintiff reported that the authorities were investigating the allegations.
Tarver believed the article was deceptive, biased and defamatory, especially because it ignored facts adverse to Boswell. Tarver concluded that the OPD was trying to defame him and attack his character in retaliation for complaints he had made to OPD "management" about Boswell. Tarver had considered suing both plaintiff and the Asbury Park Press but never did; he had hoped they would correct their errors.
On July 31, 2001 Tarver spoke by phone to Peter Garcia, then the acting head of the OPD. Tarver decided to tape the conversation because he suspected that OPD management had not been supporting him. During the course of this conversation, Garcia told Tarver that he was "gonna be okay" and that the investigation was "gonna go away" and be "wrapped up by Friday" if Tarver "just lay low." Garcia admitted that if he hurt Tarver, it would look bad for Garcia, as well.
Garcia also told Tarver that "all this shit that's coming out in the paper, I found out who's doing that" -- "Boswell, through that girl, Carol. He's been porking for years." According to Garcia, when Tarver was cleared by Garcia's office, then Tarver could "do whatever you want against that newspaper." That is, when Tarver got his "nice little memo" saying he did not do anything wrong "other than maybe forget to update your, your outside employment, . . . you can go after that newspaper, okay." Garcia's suspicion that Boswell was the source of the leak to the newspaper and that Boswell was in an intimate relationship with the reporter, coupled with Garcia's failure to take any disciplinary action against Boswell, led Tarver to believe that Garcia tacitly approved of the newspaper article.
In August 2001, the Asbury Park Press published another article written by plaintiff. This article included references to Boswell and to statements made by defendant Kenney, an attorney, in defense of Tarver. Although Tarver again contemplated suing plaintiff and her paper, he held off because of the ongoing investigation against him and his belief that he would ultimately be vindicated.
Lucas E. Phillips, Jr., an attorney, confirmed that Tarver first contacted him in August 2001 regarding the viability of a defamation action against plaintiff and the newspaper. Their conversations continued through January 2002. Phillips advised Tarver that he had a viable claim. Defendant Kenney, who had been retained by Tarver on July 27, 2001 in his dispute with the OPD, explained that since she was a paid columnist for the Asbury Park Press, she would not take clients who wanted to sue the newspaper.
Tarver believed that the leaks to the newspaper were part of a pattern of defamatory conduct by his employer, the OPD. At the time, he thought there could be a conspiracy among State officials, Boswell, and plaintiff. Specifically, he thought that the OPD was using Boswell's relationship with plaintiff to spread inaccurate information about him.
On December 13, 2001 Kenney filed a civil complaint on behalf of Tarver against the State of New Jersey, Office of the Public Defender. The complaint described Tarver's assertions against Boswell. It asserted claims of racial discrimination and retaliation under state statutes and the State Constitution but did not include any defamation claims.
The first newspaper article about Tarver's law suit appeared in the Asbury Park Press a month later, on January 12, 2002, after the newspaper learned of the suit from the New Jersey Law Journal. On January 10, 2002, two days before this article was published, an Executive Summary of the Public Defender's Management Audit of the Ocean Regional Office had concluded that Tarver was involved in serious mismanagement, conversion of his employer's time and resources, and contempt. The report recommended that Tarver's ethical violations be forwarded to the State's Executive Commission on State Ethical Standards.
The January 12 article, written by plaintiff, reported that the OPD had substantiated the allegations against Tarver regarding the improperly prepared "time sheets" and that the matter had been referred to State ethics officials. The article also mentioned Tarver's suit and his allegations against Boswell. According to Tarver, the article was biased because it did not cast him as a victim of discrimination and demonstrated plaintiff's hesitancy to criticize Boswell.
On January 14, 2002 Kenney filed an amended complaint on Tarver's behalf, adding Garcia as a defendant. The amended complaint alleged that the OPD had submitted an unfounded report filled with misrepresentations which failed to mention that Garcia thought the allegations against Tarver were false. According to this amended complaint:
During this period of time, leaks occurred from the Public Defender's Office resulting in a front page article in the Asbury Park Press and an article in the Press of Atlantic City damaging Mr. Tarver's reputation wherein the Office of the Public Defender failed to report the true facts concerning the employment situation of Mr. Tarver, leading the public to believe that he was somehow associated with criminal activity. Furthermore, the Office of the Public Defender by its agents, heirs, assigns, and John Doe supervisors, continued to participate in the attacks upon Mr. Tarver which are motivated by the illegal animus set forth in this complaint, by failing to take disciplinary action against those who would have planted such a story. Mr. Garcia has admitted to Mr. Tarver that Mr. Boswell was the leak and has taken no action against him.
Kenney attached to the amended complaint a copy of the transcript of the phone conversation between Tarver and Garcia. The amended complaint in referring to this transcript was redacted to delete the reference to plaintiff's name "Carol."
Kenney claimed that she redacted plaintiff's name because the sexual relationship between plaintiff and Boswell to which Garcia had alluded "was not an important proof in Tarver's claims against the defendant in the Discrimination Lawsuit."
On January 15, 2002 another article written by plaintiff was published in the Asbury Park Press. The article spoke of Tarver's suit and of the possibility that Boswell might also sue if the State settled its case with Tarver. Kenney then considered adding the plaintiff and the newspaper as defendants in Tarver's lawsuit against the ...