G.D. v. Kenny

• Decision Date: 31 January 2011
• Citation: 15 A.3d 300,39 Media L. Rep. 1699,205 N.J. 275
• Parties: 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,andNeighborhood Research Corp., d/b/a Mountaintop Media; Richard K. Shaftan, a/k/a Rick Shaftan; CareyAnn Shaftan, Defendants–Respondents.
• Court: New Jersey Supreme Court

205 N.J. 275

15 A.3d 300

39 Media L. Rep. 1699

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,andNeighborhood Research Corp., d/b/a Mountaintop Media; Richard K. Shaftan, a/k/a Rick Shaftan; CareyAnn Shaftan, Defendants–Respondents.

Supreme Court of New Jersey.

Argued Sept. 14, 2010.Decided Jan. 31, 2011.

Charles R. Cohen, Saddle Brook, argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf, attorneys).William W. Northgrave, Newark, argued the cause for respondents Bernard Kenny, The Hudson County Democratic Organization, Inc., Craig Guy, Harold E. Demellier, Jr., a/k/a Bud Demellier, Raul Garcia, a/k/a Rudy Garcia, and Nicole Harrison–Garcia (McManimon & Scotland, attorneys; Mr. Northgrave and Jaime R. Placek, Fort Lee, on the briefs).Grayson Barber argued the cause for amicus curiae Electronic Privacy Information Center (Ms. Barber, attorney; Ms. Barber and Marc Rotenberg, a member of the Massachusetts bar, on the brief).Bruce S. Rosen argued the cause for amicus curiae North Jersey Media Group Inc. (McCusker, Anselmi, Rosen & Carvelli, attorneys; Jennifer A. Borg, Hackensack, of counsel; Mr. Rosen and Kathleen A. Hirce, Florham Park, 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, Newark, on the brief).Michael Patrick Carroll, Morristown, 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.¹ 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.² 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.³

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, 2008.⁴

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.⁵ 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. AND NOW HE WANTS A PROMOTION? ? ?

The second flyer did not mention G.D.'s name but displayed his photograph. It read as follows:

[Front]

[Photographs of three men, including G.D.:]TEAM STACK:COKE DEALERS. GUN RUNNERS. EX CONS

THE MORE PEOPLE KNOW, THE MORE QUESTIONS THEY HAVE ABOUT BRIAN STACK.

[Back]

UNION CITY MAYOR BRIAN STACK'S CLOSEST POLITICAL OPERATIVES: GUN RUNNERS, COKE DEALERS, EX–CONS.

We all know the threat that drugs and illegal guns have in our communities. But not Brian Stack. He continues to surround himself with one shady character after another—not one but two convicted drug dealers and ex-cons, whom Stack got a high paying county job and a drugged out gunrunning lowlife who was his campaign manager.

BRIAN STACK PREACHES “REFORM” AND “GOOD GOVERNMENT” BUT HIS ADMINISTRATION IS MADE UP OF SLEAZY DRUG DEALERS AND OTHERS WHO SHOULD BE NOWHERE NEAR THE PUBLIC TREASURY.

The...