Expungement of Conviction Does Not Make Reference to That Conviction Tortious

G.D. v. Kenny, 205 N.J. 275 (2011).  A political campaign flyer charged that a candidate had as an aide “a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school.”  That assertion was not completely accurate.  Moreover, that conviction was later expunged.  The aide sued on defamation, false light and other privacy-based theories, and wrongful infliction of emotional distress.  The Supreme Court unanimously affirmed the dismissal of his complaint.

Justice Albin’s opinion first addressed the effect of the expungement of the conviction.  G.D. had argued that the expungement made his conviction a “non-event” that was to be “deemed not to have occurred.”  But the conviction was a fact that remained a fact even after expungement occurred.  As Justice Albin colorfully stated, “no one has argued that a newspaper that has reported on the arrest or conviction of a person whose record is later expunged must excise from its archives a past story or, similarly, that the New Jersey judiciary must razor from the bound volumes of its reporters a published case.”  Similarly, “people will not banish from their memories stored knowledge” of a prior conviction even if they later learn of an expungement order. 

G.D. cited N.J.S.A. 2C:52-30, which makes it a disorderly persons offense to “reveal[ ] to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged.”  G.D. argued that the statute meant that truth could not be a defense to his defamation claim.  The Court rejected that position.  “We cannot conclude that N.J.S.A. 2C:52-30 transforms political debate between neighbors and friends and discourse on matters of public interest into disorderly conduct, just because the subject of the discussion is contained in a record known to be expunged.”  For that and other reasons, the expungement did not deprive the defendants of the defense of truth.

The Court also rejected the defamation claim because the flyers, though inaccurate in certain respects, were “substantially true,” which is all that is required for the defense of truth.  For example, G.D. did not “go to jail for five years.”  He was, however, sentenced to five years, but was released on parole before he had served the full term.  The burden of proving that the flyer was not “substantially accurate” was on G.D., and the Court held that he had not carried that burden.

Dismissal of the remaining counts of G.D.’s complaint was also proper.  Some of those theories essentially duplicated the defamation claim, so that the same result was required on those counts.  The privacy claim failed because “an offender has no protected privacy interest in expunged criminal records.”