Opinion
DOCKET NO. A-4112-12T3
07-18-2014
FLORENCE ACKERMAN, Plaintiff-Appellant, v. KEITH S. BALDEO, individually as an Officer of Paterson Pulse, Inc., and PATERSON PULSE, INC., Defendants-Respondents.
Joseph S. Murphy argued the cause for appellant (Mr. Murphy, attorney; Mr. Murphy and Michael C. Woyce, on the brief). Lawrence G. Tosi argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0686-11.
Joseph S. Murphy argued the cause for appellant (Mr. Murphy, attorney; Mr. Murphy and Michael C. Woyce, on the brief).
Lawrence G. Tosi argued the cause for respondents. PER CURIAM
In this defamation matter, plaintiff Florence Ackerman, a police officer, appeals from the March 25, 2013 Law Division order, which granted summary judgment to defendant Paterson Pulse, Inc., a corporation that publishes a newspaper known as the "Paterson Pulse" (the Pulse), and defendant Keith S. Baldeo, a newspaper reporter. Because there was no evidence of actual malice from the evidence presented, we affirm.
At all times relevant to this appeal, Ackerman was assigned to the downtown Paterson traffic unit, where she was responsible for maintaining the flow of traffic and enforcing traffic and parking regulations. On September 4, 2010, Ackerman saw Baldeo's illegally parked vehicle, which bore a Police Benevolent Association (PBA) courtesy plaque, and told him to move it or it would be ticketed or towed. Baldeo claimed that Ackerman threatened, intimidated, harassed, and bullied him, and screamed at and humiliated him in front of some public officials.
Ackerman claimed that Baldeo published three defamatory articles about her in retaliation for the September 4 incident. Among other things, the articles reported that private citizens referred to Ackerman as a "Hitler Cop" who bullied, intimidated, and cursed at citizens, and unfairly issued them tickets. The articles also reported that an employee of the Department of Public Works (DPW) told Baldeo about his encounter with Ackerman, and that an anonymous source told Baldeo that Ackerman was targeting the Muslim community. Ackerman asserted that Baldeo acted in reckless disregard for the truth by failing to verify or corroborate this information.
At his deposition, Baldeo testified that he obtained information about Ackerman from his observations of her while on duty. He also obtained information from individuals who approached him or called the Pulse, including the DPW worker, and said that Ackerman was harassing, bullying, and intimidating people in the community, and unfairly issuing them tickets. These individuals referred to Ackerman as a "Hitler Cop," and asked that they not be identified for fear of retaliation by Ackerman.
Baldeo also testified that he took steps to verify the information he received by interviewing individuals, submitting requests for information under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, attempting, unsuccessfully, to obtain information from the Internal Affairs Division about citizen complaints against Ackerman, and reviewing Ackerman's personnel file, which corroborated some of the information he had received. He also attempted, unsuccessfully, to corroborate that Ackerman was targeting the Muslim community, and when unable to do so, he did not publish the substance of that claim. He also used the word "alleged" when discussing what was said about Ackerman.
Defendants filed a motion for summary judgment. In granting summary judgment, the trial judge determined that Ackerman could not establish actual malice by clear and convincing evidence. The judge found there was no evidence that Baldeo "knew his articles were false or whose veracity was highly in doubt." The judge noted that nothing in the record contradicted the facts that Baldeo investigated, verified and reported incidents that he either personally observed or heard from citizens.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). As our Supreme Court has held,
Summary judgment must be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.Thus, we consider, as the motion judge did, whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid. (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)).
[Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)) (internal quotation marks omitted).]
If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litigation Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas, supra, 213 N.J. at 478.
To survive summary judgment in a defamation action, in addition to damages, the plaintiff must make a prima facie showing that "the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff." Feggans v. Billington, 291 N.J. Super. 382, 391 (App. Div. 1996). A public figure, such as Ackerman, see Costello v. Ocean Cnty. Observer, 136 N.J. 594, 613 (1994), must also provide clear and convincing evidence that the defendant acted with actual malice. Durando v. Nutley Sun, 209 N.J. 235, 253 (2012). "Although courts construe the evidence in the light most favorable to the non-moving party in a summary judgment motion, the clear and convincing standard in [a] defamation action adds an additional weight to the plaintiff's usual preponderance of the evidence burden." Ibid. (alteration in original) (internal quotation marks omitted) (quoting Costello, supra, 136 N.J. at 615).
"Mere failure to investigate all sources does not prove actual malice." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 172 (1999). "The existence of malice depends on publishing with knowledge that a statement is false, rather than with ill will. Spite, hostility, hatred, or the deliberate intent to harm demonstrate possible motives for making a statement, but not publication with a reckless disregard for its truth." Id. at 166-67. To prove actual malice in a defamation action involving a media defendant, "'a plaintiff must establish "that the publisher knew the statement to be false or acted in reckless disregard of its truth or falsity.'" Durando, supra, 209 N.J. at 251 (quoting Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 151 (1986).
"[E]stablishing reckless disregard requires a showing that the defendant made the statement with a 'high degree of awareness of [its] probable falsity.'" Ibid. (alteration in original (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216, 13 L. Ed. 2d 125, 133 (1964)). "[R]eckless conduct 'is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325, 20 L. Ed. 2d 262, 267 (1968).
"That an editor or reporter 'should have known' or 'should have doubted [the] accuracy' of an article before publishing it is insufficient to show reckless disregard for the truth." Durando, supra, 209 N.J. at 251-522 (quoting Lawrence v. Bauer Publ'g & Printing Ltd., 89 N.J. 451, 467 (1982)). "To act with reckless disregard of the truth, a defendant must "'actually doubt[]' the veracity of the article." Ibid. (quoting Lawrence, supra, 89 N.J. at 468). "Only '[i]f recklessness approaches the level of publishing a knowing, calculated falsehood' based on the summary judgment record, should the case go to the jury." Ibid. (quoting Maressa v. N.J. Monthly, 89 N.J. 176, 200 (1982)).
Here, there is no evidence, let alone clear and convincing evidence, from which a reasonable jury could conclude that Baldeo acted with actual malice in publishing the articles. Assuming the articles contained defamatory statements of fact that were false, there is no evidence whatsoever that Baldeo knew the statements were false or that he actually doubted their veracity. Accordingly, summary judgment was properly granted.
The judge made no finding that the statements were, in fact, defamatory. His opinion rested solely on the lack of evidence of actual malice.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION