On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2533-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2012
Before Judges Sabatino and Fasciale.
This appeal involves a claim by plaintiff Adam Schneider, the mayor of Long Branch, alleging that, in the course of the 2010 mayoral election campaign, defendants Brian Unger, Pat Politano, The Unger Change Team, John Evans, and Peter DeLisa distributed campaign flyers that defamed him. In particular, the campaign flyers insinuated that plaintiff had accepted bribes from a former real estate developer. The developer has served as an undercover agent for the United States in several federal corruption cases against certain public officials and other individuals in New Jersey.*fn1 Plaintiff is not, however, one of the officials who was prosecuted in those federal cases.
The trial court granted defendants summary judgment on the basis that plaintiff had not made a sufficient showing that defendants had acted with "actual malice," a necessary element of a defamation case where, as here, the plaintiff is a public official. We affirm that determination.
From March 2010 until May 11, 2010, plaintiff was campaigning for re-election to the office of Mayor of the City of Long Branch as a twenty-year incumbent. Defendant Unger was an opposing candidate for the same office.
Defendant "Unger Change Team" was an organization that Unger established to coordinate efforts to obtain votes in his favor. According to plaintiff's complaint, defendant Politano was a consultant to Unger's campaign. Defendant DeLisa was likewise involved in the campaign, allegedly as Unger's campaign manager. Defendant Evans also participated in Unger's organization, allegedly as campaign chairman.
The mayoral campaign on both sides was particularly contentious. In particular, the Unger Change Team distributed flyers alleging that plaintiff had taken bribes from Solomon Dwek ("the informant"), a former real estate developer who had been convicted of bank fraud in 2006.
One flyer that defendants allegedly distributed in or before April 2010 featured a photograph of the informant. Referring to the informant, the flyer read: "He's one of the most notorious criminals in New Jersey. He bribed mayors with envelopes filled with cash. Long Branch Mayor Adam Schneider took his money."
Another flyer said to have been distributed by defendants asserted that the informant "passed out tens of thousands of dollars in bribes and campaign contributions to mayors, council members and government officials throughout New Jersey in the largest corruption case in state history. Schneider took campaign cash from [the informant] -- not once, not twice, but three different times." This flyer included images of an alleged report that plaintiff filed with the New Jersey Election Law Enforcement Commission, stating that the informant had made successive contributions of $1900, $1000, and $1800 to plaintiff's campaign.
A third flyer quoted testimony that the informant had given on May 5, 2010 at one of the federal corruption trials, coincidentally just a few days before the mayoral election:
I had a middleman make a bribe payment like [sic] to the Mayor of Long Branch or council people of Long Branch or sometimes I would give out auction tickets.
The Yeshiva would hold a charity auction, every year and I would at times give public officials, like council people in Long Branch . . . free auction tickets for their official assistance in expediting my land use applications, my use for my zoning.
The flyer read across the top, "Schneider and his Long Branch Council: Bribed. Breaking News . . ." (Ellipsis in original).
A fourth flyer from defendants' camp similarly read, "Breaking news . . . Official federal court documents: Mayor Schneider bribed." (Ellipsis in original). This flyer again quoted from a portion of the informant's May 2010 federal testimony: "I had a middleman make a bribe ...