Fox News analyst and ex-judge Andrew Napolitano could have difficulty with his libel suit against a plaintiff who accused him of sexual assault and judicial corruption, according to legal experts.
After a lawsuit accused him of sexually assaulting Charles Corbishley while serving as a Bergen County judge in 1988, Napolitano filed his own suit accusing Corbishley of running a smear campaign. But the libel suit’s impact will be limited by the litigation privilege, which protects statements made in a judicial proceeding, according to several lawyers familiar with the case.
Napolitano is expected to have no trouble getting the sexual assault lawsuit transferred out of the Southern District of New York, where it was filed on Sept. 11, to the District of New Jersey, where the libel suit was filed days later. Corbishley’s suit identifies Napolitano as a New York resident, but Napolitano said he resides in New Jersey.
“Andrew Napolitano can’t win a lawsuit claiming what was said in that lawsuit is defamatory—there’s a litigation privilege,” said Jennifer Borg, a media lawyer at Pashman Stein Walder Hayden in Hackensack. “The privilege exists to encourage parties, counsel and witnesses to speak freely in court proceedings without fear of being sued for defamation or other torts,” said Borg, who served as general counsel for North Jersey Media Group, the former publisher of The Record.
But less clear is whether Napolitano has a claim for libel based on Corbishley’s statements to family and friends and in press releases about the case.
Those statements made about the case by Corbishley after his suit was filed might be protected from libel claims based on New Jersey’s ”fair report” privilege, generally afforded to the press, to fairly and accurately report on complaints and other court records. But Napolitano’s suit suggests some of those statements were made before the suit was filed, and any such statements would not be protected by the privilege, even assuming it were deemed to apply to nonmedia defendants such as Corbishley, Borg said.
It is also possible that the U.S. District Court will not extend the litigation privilege to Corbishley, but instead find that a person cannot confer this privilege upon himself by making a defamatory publication himself and then reporting to other people what he had stated, as the Restatement (Second) of Torts, Sec. 611 indicates, Borg said
John Connell, who practices media law at Archer in Haddonfield, also thinks the libel litigation is likely to fail, and that the litigation privilege applies to protect the allegations in Corbishley’s suit from libel claims.
“The reason the privilege exists is so the legal process can get to the truth of the matter. It’s anticipated that allegations will be made and evidence will be proffered for the truth or falsehood of the litigation. That’s exactly why the privilege exists—any such allegations must be tested by the law,” Connell said. “I don’t think there’s much hope for it.”
But David Mazie, a personal injury attorney at Mazie, Slater, Katz & Freeman in Roseland, thinks filing the libel suit in New Jersey and seeking to move the sexual assault suit to New Jersey are smart moves.
“If, in fact, this is a frivolous lawsuit, it’s smart to go on the offensive. Put yourself in his shoes—if this was a false allegation, why wouldn’t you? What this could do to his reputation is devastating,” Mazie said.
Corbishley claims in his suit that he was 20 years old and facing an arson charge when his case was assigned to Napolitano, then a judge in Bergen County Superior Court. The suit says the attorney then representing Corbishley, Robert Hollis, instructed him to go to Napolitano’s house with a snow shovel. The suit says Corbishley was greeted by Napolitano, who told him to shovel the snow from the library’s entrance way. Later, the suit claims, Napolitano came outside and sexually assaulted Corbishley in the backyard.
Corbishley’s suit says unbeknownst to him, Hollis was running a national prostitution ring at the time. The suit references a New York magazine article describing Hollis’ role in the prostitution ring. Hollis pleaded guilty to money-laundering charges for his involvement and served 18 months in jail, the suit claims.
After the sexual assault, Corbishley’s suit says, he pleaded guilty in his criminal case but Napolitano dismissed some of the charges and gave him a noncustodial sentence, which was “exceptionally light” under the circumstances.
Keith Miller, a media lawyer at Robinson Miller in Newark, said Napolitano’s decision to bring claims of reputational harm would leave him exposed to discovery about all aspects of his personal reputation, even details that are unrelated to any interactions with Corbishley.
“I usually advise people not to file libel claims. Your whole personal life becomes fair game,” Miller said.
Gregory Gianforcaro, a Phillipsburg lawyer who represents victims of sexual abuse in suits against abusers, said Corbishley’s sexual assault claims against Napolitano fall under the scope of the 2019 New Jersey law extending the statute of limitations on civil suits over sexual abuse. While most of the cases applying the law involve victims under age 18 and abusers who are priests or scouting leaders, the law is not limited to those groups, Gianforcaro said.
That law provides a two-year window from enactment for the filing of any civil case alleging adult or minor sexual abuse that occurred in the past, without the statute of limitations applying.
Gianforcaro said he believes Napolitano is seeking to move the abuse suit to New Jersey so it can be heard in conjunction with the libel claims. Based on Napolitano’s assertion that he is a New Jersey resident, and Corbishley’s residency in South Carolina, the New York court would not have jurisdiction over the libel claims, said Gianforcaro.
“I think it is easier to bring the alleged abuse lawsuit over to New Jersey because that’s where the plaintiff is saying the abuse occurred. Judge Napolitano has a much stronger case bringing that New York lawsuit over to New Jersey. He would have a more difficult case bringing the slander case to New York because if he’s saying his residence is in New Jersey, there’s a very strong argument that that’s where jurisdiction on the libel suit lies,” Gianforcaro said.
Borg, the media lawyer, likewise believes Napolitano should win his motion to have the case transferred to a federal court in New Jersey. Since he is a resident of New Jersey and the alleged abuse took place in that state, and all his claims are based on New Jersey law, that venue is appropriate.
And although Corbishley’s lawyer said Napolitano’s filing in New Jersey violates the first-filed rule, Gianforcaro doesn’t see that as a problem.
“The first-filed rule is not an inflexible doctrine because courts have held that in the presence of special equities, a court may disregard that rule,” Gianforcaro said. “The problem here that the survivor is going to have is that if Judge Napolitano lives here in New Jersey and the alleged abuse occurred in the state of New Jersey and [Napolitano] says he does not live in New York, a strong argument can be made that the alleged victim’s case should have been brought in New Jersey and not New York. My assumption is that this is going to be the argument that the judge is going to make,” Gianforcaro said.
As for the credibility of Corbishley’s claims of assault and judicial corruption on the part of Napolitano, Mazie said the fact that Corbishley claims he was abused at age 20 sets the case apart from typical claims of suppressed memories of sexual abuse. And Corbishley’s claim that the abuse took place at a house with a driveway and yard, while Napolitano says he lived on the 26th floor of a high-rise condominium is “another hole,” Mazie said.
Borg noted that defense attorney Hollis, now deceased, was apparently the only witness. “Discovery will tell us if there’s any evidence. Looking at the complaint, it appears it’s going to be a he said, he said,” according to Borg.