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G.D v. Bernard Kenny and the Hudson County Democratic Organization

January 31, 2011

G.D., PLAINTIFF-APPELLANT,
v.
BERNARD KENNY AND THE HUDSON COUNTY DEMOCRATIC ORGANIZATION, INC., DEFENDANTS-RESPONDENTS.
G.D., PLAINTIFF-APPELLANT,
v.
CRAIG GUY; HAROLD E. DEMELLIER, JR., A/K/A BUD DEMELLIER; RAUL GARCIA, A/K/A RUDY GARCIA; NICOLE HARRISON-GARCIA, DEFENDANTS-RESPONDENTS, AND NEIGHBORHOOD RESEARCH CORP., D/B/A MOUNTAINTOP MEDIA; RICHARD K. SHAFTAN, A/K/A RICK SHAFTAN; CAREYANN SHAFTAN, DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at The opinion of the court was delivered by: Justice Albin

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc.

A-85-09

Argued September 14, 2010

Decided January 31, 2011

ALBIN, J., writing for a unanimous Court.

The primary issue in this case is whether criminal-conviction information, truthfully reported in campaign flyers, is civilly actionable when the conviction is the subject of an expungement order. The secondary issue is whether the "facts" contained in the flyers are sufficiently accurate to merit protection against claims for defamation and related privacy torts.

In 1991, G.D. was charged in a three-count Hudson County indictment with possession of a controlled dangerous substance (cocaine), possession with intent to distribute cocaine, and distribution of cocaine. He pled guilty to second-degree possession with intent to distribute cocaine and, on January 8, 1993, was sentenced to a five-year (flat) state-prison term. On June 12, 2006, a Superior Court judge granted G.D.'s petition for an order expunging any record of his conviction, arrest, and charges. The expungement order directed, in part, that certain named law enforcement and judicial agencies not release information concerning the expunged records "for any reason except as authorized by law" and that the "arrest . . . shall be deemed not to have occurred, and [that G.D.] may answer accordingly."

From January 2000 to December 2001, G.D. worked as a part-time aide to then Hudson County Freeholder Brian Stack. In 2007, Stack sought the Democratic nomination for State Senate. Stack was opposed by the Hudson County Democratic Organization, Inc. (Democratic Organization), whose chief executive officer was Bernard Kenny. The Democratic Organization hired a political consulting and advertising firm run by Richard and CareyAnn Shaftan -- Neighborhood Research Corp., d/b/a/ Mountaintop Media (Mountaintop Media) -- to work on the campaign opposing Stack's election. During the course of his investigation, Mr. Shaftan learned of G.D.'s 1993 drug conviction, and at some point obtained the judgment of conviction. Mr. Shaftan claims that he was "led to understand that the site of the crime was close . . . to a public school." He also claims that he had no knowledge of the expungement order during the election cycle.

Based on his research, Mr. Shaftan composed two campaign flyers disparaging Stack for his association with G.D. One campaign flyer stated that G.D. was "a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school." On May 23 and 25, 2007, 8,184 copies of each flyer were mailed to members of the public. On June 29, 2007, G.D. filed a civil complaint alleging that defendants Bernard Kenny and the Democratic Organization committed the torts of libel and intentional infliction of emotional distress by disseminating two false and defamatory campaign flyers. On May 14, 2008, G.D. filed a second complaint concerning the same two flyers, naming additional defendants and asserting claims for libel, casting G.D. in a false light, misappropriating his name and image, improper publication of private facts, invasion of privacy, intentional and negligent infliction of emotional distress, and civil conspiracy.

Defendants moved for summary judgment, arguing that because the alleged defamatory statements were true, G.D. could not obtain relief on any of his claims. G.D. argued that the expunged conviction, as a matter of law, was a "non-event" and "deemed not to have occurred," and therefore he moved to bar defendants from asserting truth as a defense. He also sought partial summary judgment on the ground that the flyers were defamatory. The trial court denied defendants' and G.D.'s motions, substantially because the discovery process was in its incipient stage. The court made some preliminary observations, but in view of the uncompleted discovery process, it came to no hard conclusions.

The Appellate Division granted both G.D.'s and defendants' motions for leave to appeal. The appellate panel entered summary judgment in favor of defendants, dismissing all of G.D.'s claims. The panel reasoned that because the information in the flyers was true -- and that truth could not be extinguished by the expungement order -- G.D. could not satisfy an essential element of a defamation cause of action. The panel also rejected G.D.'s argument that inaccuracies in the flyers stripped defendants of truth as a defense, finding the statements "fairly accurate." The panel also found that truth -- the substantial accuracy of the flyers -- is a defense to the claims of intentional and negligent infliction of emotional distress, false light, invasion of privacy, and civil conspiracy.

The Supreme Court granted G.D.'s petition for certification.

HELD: Defendants in this case were entitled to assert truth as a defense to the defamation and other related tort actions, even though G.D.'s conviction was subject to an expungement order. In addition, G.D. failed to establish that the flyers were not substantially accurate. Moreover, G.D. had no reasonable expectation of privacy that information so long in the public domain before the entry of the expungement order would be erased from the public's mind or from papers already widely disseminated.

1. To succeed in this defamation action, G.D. must prove three essential facts: (1) that defendants made a false and defamatory statement concerning G.D.; (2) that the statement was communicated to another person (and not privileged); and (3) that defendants acted negligently or with actual malice. The key question is whether the campaign flyers that referred to G.D. as a convicted drug dealer were true; there is no doubt that the flyers were defamatory. In a defamation action, truth is not only a common-law defense, but also "absolutely protected under the First Amendment." Ward v. Zelikovsky, 136 N.J. 516, 530 (1994). Also, the law of defamation overlooks minor inaccuracies, focusing instead on "substantial truth." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991). (Pp. 17-21)

2. New Jersey's expungement-of-records statute, N.J.S.A. 2C:52-1 to -32, is intended to provide "relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity." N.J.S.A. 2C:52-32. The relief provided, however, does not include the wholesale rewriting of history. A court order of expungement does not result in the destruction of criminal records. Rather, the records must be removed from the files of any government agency that is given notice of the expungement petition in accordance with N.J.S.A. 2C:52-15 and, generally, "[i]n response to requests for information or records" regarding the conviction, the agency is required to respond that "there is no record information." N.J.S.A. 2C:52-15. One of several exceptions to this general rule, and perhaps the most pertinent here, is N.J.S.A. 2C:52-19. If truth is a defense to a defamation action based on the publication of information contained in expunged records, this section ostensibly empowers a court to give defendants access to those records to establish the truth of their assertions. (Pp. 21-25)

3. The expungement statute does not obliterate the record of a conviction. No one has argued that a newspaper that has reported on the arrest or conviction of a person whose record is later expunged must excise from its archives a past story or, similarly, that the New Jersey Judiciary must razor from the bound volumes of its reporters a published case. Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order. The expungement statute -- enacted at a time when law enforcement and court documents may have been stored in the practical obscurity of a file room -- now must coexist in a world where information is subject to rapid and mass dissemination, for example through the internet. (Pp. 25-30)

4. In light of common-law and constitutional principles protecting free speech, and with the expungement statute as a backdrop, the Court holds that the traditionally recognized defense of truth to a defamation action was not lost in this case because of the existence of an expungement order. The expungement statute does not transmute a once-true fact into a falsehood; it cannot banish memories. The right to speak freely on matters of public concern and the right to criticize a candidate for public office implicate core values protected by our federal and state constitutions. Buckley v. Valeo, 424 U.S. 1, 14-15 (1996). Truth may be personally embarrassing and offensive to some, but it remains a defense in a defamation action, even when the truth revealed concerns information contained in an expunged record. Here, for purposes of the defamation action, it would make no difference that the speaker knew of the expungement order or how he obtained it. (Pp. 30-35)

5. Truth is a defense to a defamation action even if a report on a matter of public concern contains minor inaccuracies. Salzano v. N. Jersey Media Group Inc., 201 N.J. 500 (2010). Plaintiff G.D. bears the burden of proving that the defamatory statements were not substantially accurate, and therefore false. Moreover, in opposition to defendants' motion for summary judgment, G.D. was required to "set [ ] forth specific facts showing that there is a genuine issue for trial." R. 4:46-5(a). He has failed to do so. To be clear, G.D. pled guilty to possessing with intent to distribute a substantial quantity of cocaine and was sentenced to a five-year prison term. It would be fair and reasonable to infer that a person who admitted to having the intent to distribute cocaine from a large cache was not acting for eleemosynary purposes. (Pp. 35-39)

6. Because the emotional-distress and defamation claims are so closely linked together, G.D. cannot proceed on a claim of intentional or negligent infliction of emotional distress based on campaign flyers that do not give rise to a defamation action. In addition, because G.D.'s arguments in support of his false-light claim are essentially the same as those he advances on his defamation claim, the result can be no different. The expungement statute is intended to remove various civil disabilities and to promote an offender's reintegration into society; it does not alter historical facts for either a defamation or false-light action. (Pp. 40-43)

7. To succeed in proving that defendants committed the torts of invasion of privacy, improper publication of private facts, and misappropriation of G.D.'s name and image, G.D. must establish that he possessed a reasonable expectation of privacy in matters and concerns that are contained in his expunged criminal-conviction record. The reality is that criminal-conviction information is disseminated well before the entry of an expungement order.

G.D.'s conviction was not a hidden secret; the expungement did not expurgate his past. Thus, the Court holds that the expungement order did not and could not create a reasonable expectation of privacy in matters so long in the public domain. The Court further concludes that defendants did not commit the tort of misappropriation of G.D.'s name and image because the use of his name and image in the campaign flyers was not for a commercial purpose directly benefiting defendants. The campaign flyers represented political speech attacking the judgment of a candidate running for public office. This is the type of speech that is at the heart of First Amendment guarantees. Lastly, for reasons already expressed, G.D. cannot establish that defendants committed an unlawful act or wrong against him that constitutes a tort entitling him to a recovery. Therefore, G.D.'s civil-conspiracy claim must also be dismissed. (Pp. 43-48)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, RIVERA-SOTO, HOENS, and JUDGE STERN (temporarily assigned) join in JUSTICE ALBIN's opinion.

Argued September 14, 2010

Bruce S. Rosen argued the cause for amicus curiae North Jersey Media Group Inc. (McCusker, Anselmi, Rosen & Carvelli, attorneys; Jennifer A. Borg, of counsel; Mr. Rosen and Kathleen A. Hirce, on the brief). Thomas J. Cafferty argued the cause for amici curiae New Jersey Press Association, Advance Publications, Inc., The Associated Press, The American Civil Liberties Union of New Jersey, The American Society of Newspaper Editors, and The Association of Capitol Reporters and Editors (Scarinci Hollenbeck, attorneys; Mr. Cafferty, Nomi I. Lowy and Lauren James-Weir, on the brief). Michael Patrick Carroll submitted a letter in lieu of brief on behalf of the respondents Neighborhood Research Corp., d/b/a Mountaintop Media, Richard K. Shaftan, a/k/a Rick Shaftan, and Careyann Shaftan.

JUSTICE ALBIN delivered the opinion of the Court.

The primary issue in this case is whether criminal-conviction information, truthfully reported in campaign flyers, is civilly actionable when the conviction is the subject of an expungement order. The secondary issue is whether the "facts" contained in the flyers are sufficiently accurate to merit protection against claims for defamation and related privacy torts.

During a primary contest for State Senate, opponents of candidate Brian Stack issued campaign flyers criticizing him for previously hiring a person with a criminal conviction, plaintiff G.D. One campaign flyer stated that G.D. was "a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school." G.D. filed a lawsuit alleging defamation, violation of privacy, and other related torts, and named as defendants the Hudson County Democratic Organization and certain individuals, as the purported authors and distributors of the flyers.

Defendants assert truth as a defense. G.D. had been convicted of second-degree possession with intent to distribute cocaine and sentenced to a five-year prison term. Thirteen years later, he successfully petitioned for the expungement of his criminal record. Defendants reason that G.D.'s conviction was a public fact maintained as a public record long before the expungement and that the publication of that fact during a political campaign was a legitimate exercise of their free- speech rights and did not violate G.D.'s reasonable expectation of privacy.

G.D. counters that the record of his conviction was expunged and, therefore, his conviction -- as a matter of law --is deemed not to have occurred. G.D. submits that, after the expungement of his record, the pronouncement that he was convicted of a crime was simply false and the dissemination of the expunged information violated his privacy rights.

The trial court denied the parties' cross-motions for summary judgment. The Appellate Division reversed and dismissed G.D.'s causes of action, holding that the expungement of a public record -- the record of a criminal conviction -- does not, for purposes of defamation and the other related tort claims, render false a public fact.

The issue before us arises in the realm of political discourse, where speech is often harsh and caustic, but where the constitutional guarantee of free expression is given great latitude. Although our expungement statute relieves a prior offender of some civil disabilities, it does not extinguish the truth.

First, defendants in this case were entitled to assert truth as a defense to the defamation and other related tort actions, even though G.D.'s conviction was subject to an expungement order. Second, G.D. has failed to establish that the flyers were not substantially accurate. Last, G.D. had no reasonable expectation of privacy that information so long in the public domain before the entry of the expungement order would be erased from the public's mind or from papers already widely disseminated. We therefore affirm the Appellate Division's dismissal of G.D.'s claims on summary judgment.

I.

A.

In 1991, G.D., a resident of Union City, was charged in a three-count Hudson County indictment with possession of a controlled dangerous substance (cocaine), possession with intent to distribute cocaine, and distribution of cocaine.*fn1 He pled guilty to second-degree possession with intent to distribute cocaine and, on January 8, 1993, was sentenced to a five-year (flat) state-prison term.*fn2 The remaining charges were dismissed. The Superior Court judge who imposed sentence noted on G.D.'s judgment of conviction that "[t]he quantity of the drugs was substantial."

From January 2000 to December 2001, G.D. worked as a part-time aide to then Hudson County Freeholder Brian Stack. He earned $6,000 per year in that position. That two-year period was the only time Stack ever employed G.D. Sometime afterward, G.D. worked at a day care center administered by Stack's estranged wife.*fn3

On June 12, 2006, a Superior Court judge granted G.D.'s petition for an order expunging any record of his 1993 drug conviction as well as any record of his arrest and the charges. The expungement order directed that certain named law enforcement and judicial agencies not release information concerning the expunged records "for any reason except as authorized by law"; that those agencies respond to requests for information "that there is no record," "except where otherwise authorized by law"; and that the "arrest . . . shall be deemed not to have occurred, and [that G.D.] may answer accordingly." The Department of Corrections continued to list G.D.'s conviction on its website as late as August 21, 2008.*fn4

In 2007, Stack, who then was both the Mayor of Union City and a State Assemblyman, sought the Democratic nomination for State Senate. Stack was opposed by the Hudson County Democratic Organization, Inc. (Democratic Organization), whose chief executive officer was Bernard Kenny and whose executive director was Craig Guy. The Democratic Organization backed another candidate. G.D. supported Stack's nomination but had no involvement in the Senate campaign.

The Democratic Organization hired a political consulting and advertising firm run by Richard and CareyAnn Shaftan --Neighborhood Research Corp., d/b/a Mountaintop Media (Mountaintop Media) -- to work on the campaign opposing Stack's election.*fn5 During the course of his investigation, Mr. Shaftan learned of G.D.'s 1993 drug conviction, and at some point he obtained the judgment of conviction. Mr. Shaftan claims that he was "led to understand that the site of the crime was close . . . to a public school." He never explained how he came to that understanding. He also claims that he had no knowledge of the expungement order during the election cycle.

Based on his research, Mr. Shaftan composed four campaign flyers attempting to discredit Stack in his bid for the State Senate nomination. The flyers were reviewed and approved by the Democratic Organization. Two of the flyers, printed in English and Spanish, disparaged Stack for his association with G.D. One flyer read as follows:

[Front]

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.

THAT'S THE KIND OF "REFORM" BRIAN STACK IS ALL ABOUT.

[Back]

YOU READ ABOUT DRUG DEALER [H.M.], 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 [Next to photograph of G.D.:] Like [H.M.], [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, [G.D.] landed a job as a highly paid "aide" to Mayor Stack. [Next to photograph of G.D.:] Today, [G.D.] is an aide at the controversial Union City Day Care Center --- assisting the embattled Mayor's estranged wife.

DRUGS, GANGS, AND THUGS ARE NOT JUST A PROBLEM ON UNION CITY STREETS. THEY'RE A PROBLEM IN STACK'S CITY HALL TOO. ...


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