G.D. v. Kenny

15 A.3d 300 (2011)


P was charged with possession of a controlled dangerous substance (cocaine), possession with intent to distribute cocaine, and distribution of cocaine. P 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 P's petition for an order expunging any record of his conviction, arrest, and 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' and that the 'arrest . . . shall be deemed not to have occurred, and P may answer accordingly.' The Department of Corrections listed P’s conviction on its website as late as August 2008. From January 2000 to December 2001, P worked as a part-time aide to then Hudson County Freeholder Brian Stack. P earned $6,000 per year in that position for the two-year period. That was the only time Stack ever employed P. In 2007, Stack sought the Democratic nomination for State Senate. The Democratic Organization hired a political consulting and advertising firm run by Richard and CareyAnn Shaftan to work on the campaign opposing Stack's election. Shaftan learned of P's 1993 drug conviction, and at some point obtained the judgment of conviction. 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. Shaftan composed two campaign flyers disparaging Stack for his association with P. One stated that P was 'a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.' About 8,200 copies of each flyer were mailed to members of the public. P 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. D also filed for 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. Ds moved for summary judgment, using the truth as a cover. P used the expungement and sought partial summary judgment on the ground that the flyers were defamatory. The court denied both motions. The appellate division entered summary judgment for Ds because the information was true. It held that inaccuracies in the flyers so long as they were fairly accurate would not obviate the defense of the truth. 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. P appealed.