On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. L-3297-07 and L-2418-08.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing, Grall and LeWinn.
In this appeal, we are called upon to consider whether defendants, sued for libel for preparing and circulating political flyers referring to plaintiff's criminal history, may assert truth as a defense when plaintiff's conviction has been expunged in accordance with N.J.S.A. 2C:52-1 to -32. We conclude that defendants may assert the defense of truth and reverse the trial court's order.
The issue arises in the following context. In 2007, there was a split between two different wings of the Democratic Party in Hudson County, and each wing supported a different candidate in the primary election to select a candidate to run in the general election for State Senate. One candidate was Brian Stack; his organization was known as Democrats for Hudson County. Plaintiff had worked for Stack as a part-time aide some years earlier when Stack was a member of the Hudson County Board of Freeholders. By the time of the primary campaign, Stack was no longer on the Board of Freeholders but was a member of the State Assembly as well as the Mayor of Union City. Defendants believed that plaintiff supported Stack in his primary campaign for the State Senate nomination, although plaintiff maintained that he was not actively working for Stack's candidacy.
Defendant, The Hudson County Democratic Organization, Inc., (HCDO) and its Chief Executive Officer, defendant Bernard Kenny, and its Executive Director, defendant Craig Guy, supported a candidate other than Stack. They were assisted in this campaign by defendants Howard Demellier, Raul ("Rudy") Garcia (whom Stack had defeated in an earlier election for Mayor of Union City) and Nicole Harrison-Garcia. These defendants hired defendant Neighborhood Research Corp., a firm that engages in political consulting and advertising, to assist them in opposing Stack's candidacy and promoting their own candidate. Defendants Richard Shaftan and CareyAnn Shaftan are the principals of Neighborhood Research. For ease of understanding we shall refer to these three defendants jointly as "Shaftan."
Shaftan, through methods that are not entirely clear from the record before us, became aware that plaintiff had, in the past, involvement with the criminal justice system. Shaftan was provided with a copy of a 1993 judgment of conviction evidencing plaintiff's conviction for second-degree possession of a controlled dangerous substance with intent to distribute, in violation of N.J.S.A. 2C:35-5a(1), 5b(1). The judgment of conviction recorded that plaintiff had, in addition, originally been charged with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1), 5b(1), and had been sentenced to serve five years in prison.
Based upon that information, two flyers were prepared. Both were in English and Spanish. The first contained the following text in English:
IT'S THE COMPANY YOU KEEP
And the sleazy crowd Brian Stack surrounds himself with says a lot about who Stack is.
COKE DEALERS AND EX-CONS.
YOU READ ABOUT DRUG DEALER HECTOR MARTINEZ, A STACK CRONY CURRENTLY "WORKING" AT THE COUNTY VOCATIONAL SCHOOL AFTER BEING DEPORTED FOR SELLING COCAINE NEAR A PUBLIC SCHOOL.
NOW READ ABOUT STACK REFORMER #2 Like Martinez, [G.D.] is also a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school. After getting out of jail, [D.] landed a job as a highly paid "aide" to Mayor Stack.
Today, [D.] is an aide at the controversial Union City Day Care Center --assisting the embattled Mayor's estranged wife THEY'RE A PROBLEM IN STACK'S CITY HALL TOO.
AND NOW HE WANTS A PROMOTION???
This flyer showed G.D.'s photograph next to the textual references to him.
The second flyer contained the following text in English:.