Summary
finding that to warrant a defense at public expense, when a public official is sued individually for libel, the public official must have been performing, in good faith, a duty of his office or position in furtherance of the work of the board for which he was purportedly acting
Summary of this case from Mccurrie v. Town of KearnyOpinion
Argued May 5, 1964 —
Decided May 18, 1964.
Appeal from the Superior Court, Appellate Division.
Mr. Harold A. Price argued the cause for appellant ( Mr. Wilbur M. Rush, attorney).
Mr. Robert N. Errington argued the cause for respondent, pro se ( Mr. Robert E. Frederick, attorney).
Mr. Thomas P. Cook argued the cause for State Federation of District Boards of Education, intervening as amicus curiae.
After being subjected to the publication in newspapers of the plaintiff's letters attacking the board of education, the president of the board published a letter which the plaintiff alleges to be defamatory. On November 7, 1962 the plaintiff filed a libel action against Catherine D. Harsha, president of the board, and when a majority of the other members of the board adopted a resolution dated November 15, 1962 stating that Mrs. Harsha was acting on behalf of the board and authorizing her legal defense by the board's counsel, the plaintiff filed a libel action against them. On December 13, 1962 a motion was adopted that they also be defended by board counsel. Answers have been filed in both libel actions and they are now awaiting trial.
On February 8, 1963 the plaintiff filed a complaint in lieu of prerogative writ against the board. It alleged that there was no authority for the board to expend public funds in defense of the libel suits and sought a restraint against such expenditures. The Law Division granted summary judgment for the plaintiff and the Appellate Division affirmed. Errington v. Mansfield Tp. Bd. of Ed., 81 N.J. Super. 414 (1963). We granted certification. 41 N.J. 519 (1964). The record before us is meagre and the issue presented is of public importance. It appears to us that the sound course would have been to permit the libel actions to proceed to trial and thereafter the issue could have been fairly determined below upon the basis of a full record. Counsel for the board has expressed his agreement that such course now be taken, has represented that the board received reimbursement of its expenditures to date, and has agreed that no public funds would be expended in defense of the libel suits pending ultimate determination of the issue raised in this action.
Reversed and remanded for further proceedings not inconsistent with this opinion.
For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For affirmance — None.