author: Jasen, J.

text:
    Katherine James et al., Individually and on Behalf of Their Minor Children, et al., Respondents, v Board of Education of the City of New York et al., Appellants.
    Argued June 29, 1977;
    decided July 14, 1977

      W. Bernard Richland, Corporation Counsel (Leonard Koerner, L. Kevin Sheridan, Michael S. Cecere and Paul T. Rephen of counsel), for appellants.

      John E. Le Moult and Steven Delibert for respondents.

      Laura B. Hoguet, Todd B. Sollis, Robert N. Landes and Barbara Ann Cook for McGraw-Hill, Inc., amicus curiae.

   Jasen, J.

Whether the courts have power to enjoin, even temporarily, the administration of examinations to school pupils based on contentions that the integrity of the examinations had been fatally compromised is the issue presented for our consideration. Special Term, affirmed by the Appellate Division, granted a preliminary injunction against the scheduled administration of comprehensive reading and mathematics examinations to pupils throughout the entire New York City school system. There should be a reversal. The temporary injunction issued by the courts below was an unlawful interference with an educational policy judgment made by the appropriate school authorities in exercise of constitutional and statutory power. Whether or not an examination had been so compromised as to strip it of validity as a device for measuring educational achievement is a matter committed to the professional judgment and discretion of those responsible for the administration of the public schools. It is not a matter for the courts.

The Chancellor of the City School District of the City of New York is required, by law, to "cause a comprehensive reading examination to be administered to all pupils in all schools under the jurisdiction of the community districts annually.” (Education Law, § 2590-j, subd 5, par [a].) Comprehensive examinations are not intended to measure the proficiency of particular students in a particular area of instruction as do, for example, the examinations administered annually under the direction of the State Board of Regents. Instead, comprehensive examinations are designed to provide an assessment of how programs in basic skills, reading and mathematics, conducted by the administering school district, compare in relation to national standards. Comparisons are drawn between current performance and performance registered in past years by students taking similar examinations at comparable points in the school year, as well as between the results obtained by the particular school district and results obtained by comparable districts elsewhere in the country. Test results are calculated on accumulation of individual student scores, yet programmatic assessment takes place at the school and district levels.

In New York City, the chancellor is mandated by statute to use comprehensive examination results to rank each school in order of the percentage of pupils reading at or above grade level. The ranking must be accomplished by October 1 of each school year. (Education Law, § 2590-j, subd 5, par [a].) Results are also used by both New York City and New York State educational authorities to satisfy requirements imposed by Federal law in connection with Federal educational assistance programs. (See, e.g., US Code, tit 20, § 241e, subd [a], par [6]; 45 CFR 116.31 [f].) In New York City, therefore, reading ability is tested at grades 2 through 9; and mathematics is tested at grade 5. Examination scores of individual students are considered, but are not determinative, in resolving such matters as promotional requirements for students, pupil admission to special programs and private schools, the organization of classes, teacher evaluation and assessment, class ranking, allocation of Federal, State and local funds, and in the allocation of teachers to schools.

For many years, the New York City school district utilized nonexclusive, nonsecure comprehensive reading tests developed by private publishers. These examinations are sold to, and used by, school systems throughout the country. Use of this form of testing permits a particular school system to measure performance of its pupils against the results obtained by students in other school districts using the same examination. Also, nonexclusive examinations provide a measure of economy since the cost of preparing the examination, and the profit of the private publisher, can be spread through the school districts purchasing the identical test. Use of nonexclusive tests, however, poses dangers that the examination might be compromised. Hence, the private publisher stores the examinations in secure warehouses, carefully regulates who may purchase, or have access to, the tests, and imposes security measures to be implemented in the course of examination administration.

Following administration of a comprehensive examination by New York City in 1974, there were allegations that cheating occurred in some of the city’s schools. An investigation revealed that there were instances of unacceptable examination practices. To avoid recurrence of these difficulties, the board of education decided to purchase and employ exclusive, secure tests for the 1975 and 1976 annual examinations. These tests were not previously administered in any school district in the country and the opportunities for prior disclosure, or cheating, were thereby reduced. New York City was the only school district in the country to administer, even briefly, a secure or exclusive comprehensive test. Despite additional security precautions and "the use of the secure form of examination, there were still allegations that cheating had occurred in both 1975 and 1976. The scores on both tests were appreciably higher than those of prior years, but, since the test had not previously been administered, scientifically accurate comparison was not possible.

A committee of teachers, superintendents and testing experts recommended a return to the prior practice of purchasing nonexclusive tests. The disadvantage of the exclusive test, the inability to compare results, was considered to outweigh whatever advantages lay with exclusive, supposedly more secure, examinations. The board of education invited bids for the 1977 city-wide test and CTB/McGraw-Hill, a division of the McGraw-Hill Publishing Company, submitted the lowest bid, $408,000. The test purchased from McGraw-Hill, the Comprehensive Tests of Basis Skills, Form S, had been previously administered in four States and in at least 17 major cities throughout the country, including San Francisco, Los Angeles, San Diego, Washington, D.C., and Newark, New Jersey.

In accordance with usual practice, the examination was scheduled for late March. Beginning in January, 1977, the board began to distribute test instructions and materials. The actual examinations were delivered to schools two weeks in advance of the test date to permit teachers sufficient time to complete test forms. The forms required information that had to be obtained from the record cards of individual students. On March 16, 1977, the Community Superintendent of District 6 in Manhattan notified the chancellor that copies of the actual reading portion of the examination had accidentally been distributed as sample materials to schools within the district. By March 28, 1977, the day before the examination, District 6 reported that at least 30 classes had received advance disclosure of examination materials. Other districts also reported instances of premature release to students. Although the mathematics portion of the examination was not affected, the chancellor postponed the entire examination pending an investigation. The investigation disclosed that no more than 3,000 students had seen the reading portion of the examination. Since the examination was to be administered to approximately 720,000 students in 23,000 classes throughout the city, the chancellor concluded that the examination had not been fatally compromised. It was determined that Form S would be administered in those schools where no allegations of irregularity had been made or where irregularity had not been established. In schools that had been affected, an alternative form of examination would be utilized.

The petitioners, parents and teachers of students in various community school districts and the Superintendent of Community School District 4, contended that the irregularities were more widespread than believed by the chancellor. They unsuccessfully sought to obtain administrative relief from the New York City Board of Education and from the State Commissioner of Education. This proceeding was commenced, pursuant to CPLR article 78 to challenge the decision to administer the examination. A temporary restraining order was secured and the court subsequently granted the parties additional time within which to submit further affidavits. On April 11, 1977, the court granted petitioners a temporary injunction against administration of the test. The court acted solely on the strength of the papers submitted without holding a hearing.

. Special Term stated that the "unrefuted allegations by petitioners demonstrate that, apparently to avoid the cost of security measures, these examinations were delivered well in advance of the examination date, instead of being delivered to the teachers administering the examinations only at the time of the examinations, as was the prior practice.” The court agreed with petitioners that the examination had been fatally compromised. "The full and precise extent of the dissemination of the examinations may not be known, but it has plainly been pervasive. To administer these examinations now would be a futile exercise. To rely upon the results would be unfair to those who have lacked prior familiarity with the examinations.” Scheduling difficulties and the added expense of purchasing a new examination were held to be outweighed by the prejudice and harm which might result from the administration of a compromised examination. "The only appropriate conclusion, in this Court’s view, is for the compromised examinations to be entirely discarded, and new examinations, suitably secure, to be administered.” The court directed an expeditious trial of the factual issues.

The Appellate Division unanimoulsy affirmed the award of preliminary injunctive relief for the reasons stated by Special Term. The respondents indicated that they would apply to our court for leave to appeal. Since the intention to apply for leave to appeal automatically stayed enforcement of the preliminary injunction (CPLR 5519, subd [a]), petitioners requested that we vacate the automatic stay. On May 5, 1977, we denied the motion to vacate the statutory stay "to the extent only that the examination may be administered and graded except that the New York City Board of Education must not use or divulge the examination results or enter them against the individual records of students, unless authorized by this Court upon appropriate application, pending submission and determination of motions for leave to appeal.” A motion for leave to appeal was made and, subsequently, was granted.

First, a matter of practice must be addressed. The power of our court to entertain this appeal having been decided in the motion for leave to appeal, attention must be focused on the nature of the order sought to be reviewed. Ordinarily, decisions on applications for injunctions, and provisional remedies generally, are within the discretion of the Special Term, and, perforce, the Appellate Division. In fact, when based on pure discretion, orders determining requests for preliminary relief are not even appealable to our court. (E.g., Walker Mem. Baptist Church v Saunders, 285 NY 462, 474, rearg den 286 NY 607; Hudson Riv. Tel. Co. v Watervliet Turnpike & R. R. Co., 121 NY 397; Paul v Munger, 47 NY 469, 473-474; cf. Rosemont Enterprises v Irving, 41 NY2d 829, 830.) Nonetheless, appeals are appropriately entertained where the action taken by the courts below presents a serious question of law determinative of the case. An appeal from an order granting a preliminary injunction lies if there are advanced serious legal arguments which raise a substantial question of abuse of discretion as a matter of law. (Cohen and Karger, Powers of the New York Court of Appeals, § 158, pp 615-619; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.17; 7A Weinstein-Korn-Miller, NY Civ Prac, par 6301.13; cf. Patron v Patron, 40 NY2d 582, 585; Rosemont Enterprises v Irving, supra'.) Similarly, we may entertain an appeal which presents a significant issue as to whether, on the facts deemed to be established, the lower courts had the power to grant the injunctive relief that they did. (See Barclay’s Ice Cream Co. v Local No. 757 of Ice Cream Drivers & Employees Union, 41 NY2d 270, 271; Cohen and Karger, Powers of the New York Court of Appeals, § 157, pp 611-613.) In short, "whether, as a matter of law, there was a legal barrier to the exercise by the Appellate Division of its authority to grant an injunction pendente lite.” (41 NY2d, at p 273.) Finally, and traditionally, if it plainly appears on the face of the complaint that the case is one in which, under settled principles of law, the plaintiff, on the facts alleged, is not legally entitled to final relief, then a preliminary injunction in plaintiff’s favor is reviewable. (E.g., Hudson Riv. Tel. Co. v Watervliet Turnpike & R. R. Co., 121 NY 397, 399-400, supra; Birge v Berlin Iron Bridge Co., 133 NY 477, 483; Hatch v Western Union Tel. Co., 93 NY 640; McHenry v Jewett, 90 NY 58, 62; Collins v Collins, 71 NY 269, 271; Cohen and Karger, Powers of the New York Court of Appeals, § 157, pp 609-611, and n 31.)

In this case, substantial questions have been raised as to the power of the courts below to interfere with matters of educational policy. If, as we will hold, the courts below were without authority to set aside, even temporarily, a policy decision by school administrators with respect to the integrity of a school examination, then the grant of preliminary injunctive relief is erroneous as a matter of law. Further, if judicial authority is altogether lacking, petitioners would not be entitled to the final relief, a permanent injunction, they seek. Therefore, it is concluded that the appeal is properly before us and that the order appealed from is reviewable. We turn, now, to the merits.

The conflicting contentions of the parties may be briefly summarized. The petitioners argue that the examination has been flagrantly compromised and use of the results under the circumstances would prejudice the decisions in which examination results may be a factor. It is particularly stressed that the test scores may be utilized in determining in what classes a student may be placed and whether a student will be admitted into special programs or into private school. It would be unfair, it is argued, if certain students obtained the benefit of specific coaching or advance perusal of the examination while others were not so privileged. The board counters by stressing that the instances of security breaches are relatively insignificant when compared against the total student population to be examined. The school authorities state that the percentage of irregularities is not high enough to warrant invalidation of the entire examinhtion. Further, it is asserted, advance coaching or knowledge would not, in the majority of instances, affect test results. The examinations are designed to measure basic skills Acquired over several years. In the space of a few weeks’ time, a student cannot significantly improve his reading skills nor acquire greater understanding of the principles of mathematics. Only sheer memorization of questions and answers could alter the outcome. In this respect, it is noted that the delay between the time of the security breaches and the date the examination was actually administered will serve to reduce the chances of successful memorization.

The City of New York constitutes but a single city school district (Education Law, § 2590.) While local district boards have been granted considerable authority to operate the schools within their communities (see Education Law, § 2590-b, subd 2; § 2590-e), responsibility for decision-making on a city-wide level rests with a centralized administration. The chancellor is the chief executive officer of the school district (see Education Law, § 2590-h), but is subject to the general supervision of the board of education (see Education Law, §§ 2590-g, 2590-h; see, generally, Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 119). Yet the decisions of even the city-wide officials, both by Constitution and statute, are subject to review by the Commissioner of Education. The commissioner, a constitutional officer, is, in turn, under the supervision of the State Board of Regents. (NY Const, art V, § 4; art XI, § 2; Education Law, §§ 301, 305; see Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 23 NY2d 483, 485.) The Legislature has established a procedure whereby persons conceiving themselves aggrieved by specific acts of local school authorities or, indeed ”[b]y any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools”, may seek review by the Commissioner of Education. (Education Law, § 310, esp subd 7.) Although petitioners sought administrative relief from both the city-wide board of education and the State Commissioner of Education, neither the board nor the commissioner saw fit to interfere with the chancellor’s determination to administer the examination.

Petitioners predicate their request for injunctive relief on the claim that results from a compromised examination might be unfairly used to influence significant decisions such as the promotion of pupils, admission of students to special programs and private schools, and allocation of teachers and funds within the school system. However, it is not contended, nor could it be, that, in the absence of some explicit statutory or constitutional violation, any of these decisions, reflective of educational policy judgments, would be cognizable in the courts. To be sure, where a statutory or constitutional provision is at root of a dispute, the courts may offer the definitive resolution of these issues of law. Similarly, where the educational authorities have acted in a judicial, or quasi-judicial capacity, judicial review is available, with the substantiality of the evidence constituting the standard to be applied. Illustrative of these principles are the myraid of tenure, racial discrimination, and teacher dismissal cases heard by our courts. Although these matters touch, often deeply, educational policies, because discrete law issues are raised which are wholly apart from matters of policy, such issues are judicially cognizable.

Here, petitioners contend that judicial review may be had because the chancellor has an explicit statutory duty to administer a comprehensive reading test. (Education Law, § 2590-j, subd 5, par [a].) It is argued that, implicit in the statutory direction, is a requirement that the test be administered fairly and without undue advantage to particular students. With this argument, we have no disagreement. However, the nub of the issue is who is to decide whether a particular test, under the relevant circumstances, will satisfy the statutory direction. We conclude that the responsiblity for this determination rests with the chancellor and, in turn, the board of education and Commissioner of Education.

The statute itself places first instance responsibility upon the shoulders of the chancellor. The general legislative and constitutional system for the maintenance of public schools secures review by the board of education and, on the State level, by the Commissioner of Education. The purpose of these provisions "is to make all matters pertaining to the general school system of the state within the authority and control of the department of education and to remove the same so far as practicable and possible from controversies in the courts.” (Bullock v Cooley, 225 NY 566, 576-577; see, also, People ex rel. Board of Educ. v Finley, 211 NY 51, 57.) Indeed, at one time, the statute specifically forbade review of the commissioner’s decision "in any place or court whatever”. (Education Law, § 310, amd by L 1976, ch 857, § 1.) Although the determinations of the Commissioner of Education are now specifically subject to review, pursuant to CPLR article 78, in the same fashion as those of other administrative officers or bodies (see Governor’s Memorandum of Approval, 2 McKinney’s Session Laws of NY [1976], p 2450), the statutory alteration is of limited impact for, even under prior law, the courts possessed the authority to set aside the commissioner’s decisions if arbitrary or illegal. (See, e.g., Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137, 142; Matter of Baer v Nyquist, 34 NY2d 291, 298; Matter of Board of Educ. v Nyquist, 31 NY2d 468, 473, n 2; Matter of Vetere v Allen, 15 NY2d 259, 267, cert den 382 US 825.) Here, it must be noted, the petitioners challenge only the determinations of the chancellor and city-wide board of education; the decision of the Commissioner of Education not to interfere is not disputed. Indeed, the commissioner is not a party to this proceeding, nor is he a party to this appeal.

The courts had no role, and it is not argued that they should have, in selecting the form of examination to be administered. Statute requires the administration of a comprehensive examination and the examination purchased, if simon-pure, would surely be adequate for the purpose. It is not for the courts to say that considerations of educational policy, of the needfulness to make valid comparisons, of the need to prevent cheating* of the need to keep down costs, should have led the chancellor, and the board, to purchase a different form of examination.

The chancellor has determined, as a result of investigation, that the examination actually purchased still has validity as an educational indicator. This conclusion is bottomed on the comparatively slim evidence of irregularity his investigation turned up, as well as upon his view that because of the very structure of the examination, cheating would have little impact. While petitioners have uncovered further evidence of irregularity, it cannot be said that the chancellor’s investigation was inadequate. Nor can this court evaluate the merits of petitioners’ disagreement with the educational assumptions relied upon by the chancellor. (Matter of Vetere v Allen, 15 NY2d 259, 267, supra.) Finally, the court is without power to decide whether the chancellor’s answer to the difficulty, the administration of alternative examinations to students only in schools affected by irregularity, is sufficient to overcome any taint. "While it is possible to question * * * the educational wisdom of this solution, it is not for the courts to do so. As long as the act was within the power of the city board [and, here, also the chancellor], which it was, the courts may not interfere. The courts may not under the guise of enforcing a vague educational public policy, suggested to it, assume the exercise of educational policy vested by constitution and statute in school administrative agencies. This is not to say that there may never be gross violations of defined public policy which the courts would be obliged to recognize and correct.” (Matter of New York City School Bds. Assn. v Board of Educ., 39 NY2d 111, 121, supra.) Under the circumstances presented, judicial intervention, of even a temporary nature, was unwarranted and in excess of authority.

There is but one further point to be made. The petitioners seek to compel executive officials to engage in a general course of conduct and in a series of continuous acts, all for the purpose of providing what petitioners would perceive to be an appropriate examination. They would have the school system purchase a more expensive, presumably more secure test, develop and enforce better test administration procedures, and more closely review the test-related activities of teachers, principals, supervisors, and community district officials. It would be impossible for a court to oversee the performance of these acts and it would be "particularly inappropriate” to do so since the "relevant statutory duty involves the exercise of judgment and discretion” on the part of the chancellor. (Matter of Community Action Against Lead Poisoning v Lyons, 43 AD2d 201, 203, affd on opn of App Div 36 NY2d 686.) In this case, petitioners raise "questions of judgment, discretion, allocation of resources and priorities inappropriate for resolution in the judicial arena”. (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992.) The responsibility for resolving these questions is vested in a network of officials and boards, on both the local and State level. To permit this injunction to stand, and this proceeding to be continued, "would in effect attempt displacement, or at least overview by the courts and plaintiffs in litigations, of the lawful acts of appointive and elective officials charged with the management of’ the New York City public school system. (39 NY2d, at p 992.) With these officials, the matter rests.

Accordingly, the order of the Appellate Division should be reversed; the motion for a preliminary injunction should be denied; the preliminary injunction granted by Special Term should be vacated; and the petition should be dismissed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed, without costs, motion for preliminary injunction denied, preliminary injunction vacated, and petition dismissed.


source: Caselaw Access Project

author:
Jasen, J.
      Chief Judge Breitel (concurring). Fuchsberg, J. (concurring) Gabrielli, J. (dissenting in part).

license: Public Domain

text:
    Dominic S. Rinaldi, Respondent, v Holt, Rinehart & Winston, Inc., et al., Appellants, et al., Defendant.
    Argued April 26, 1977;
    decided July 14, 1977

      Carleton G. Eldridge, Jr., John M. Keene, III, and Jerry Slater for Holt, Rinehart & Winston, Inc., appellant.

      Victor A. Kovner, Heather Grant Florence and Robert C. Bickford for Jack Newfield, appellant.

      Irwin N. Wilpon for respondent.

      Henry R. Kaufman, Ira M. Millstein and R. Bruce Rich for Association of American Publishers, Inc., and another, amici curiae.

   Jasen, J.

This is an action for defamation. The plaintiff is a Justice of the Supreme Court, Second Judicial District. His complaint alleges that he was libeled in the book, "Cruel and Unusual Justice”, authored by defendant Jack Newfield and published by defendant Holt, Rinehart & Winston, Inc. After extensive pretrial discovery, defendants moved for summary judgment. Their motion was denied by Special Term. The Appellate Division, by a closely divided court, affirmed (53 AD2d 839), but granted defendants leave to appeal to our court upon a certified question.

The issue before us is whether plaintiff has established the existence of material facts sufficient to create a triable issue on his libel cause of action. More specifically, resolution of this appeal turns on whether plaintiff, a public official, has set forth facts sufficient to generate a triable issue on the constitutional elements of the libel complaint. (New York Times Co. v Sullivan, 376 US 254.) We hold that defendants’ motions for summary judgment should have been granted and, therefore, the order of the Appellate Division should be reversed.

Jack Newfield is a controversial, well-known, investigative journalist. In 1972, Newfield focused his attentions on the criminal justice system in New York State, with particular emphasis on the administration of criminal justice in New York City. In the fall of 1972, he authored five articles on judicial conduct which appeared in the Village Voice, a weekly newspaper. An additional article, "The Ten Worst Judges in New York”, was published in New York Magazine. The thrust of these articles was that Judges in the New York City courts were selected for political reasons and not on the merits of their qualifications for judicial office. Several Judges, identified by name, were described as incompetent or corrupt, and several decisions rendered by these Judges were cited by the author to illustrate his criticisms. The author contended that these Judges were lenient on defendants with political influence and with defendants charged with distribution of significant amounts of narcotics. By contrast, it was asserted, these same Judges were too harsh on defendants from disadvantaged backgrounds, especially on common narcotics addicts charged with comparatively minor offenses. Newfield advocated the removal of these Judges from the Bench and called for over-all reform of the method of selecting Judges. Listed as among the 10 worst Judges in New York was plaintiff. The Newfield articles were highly critical of plaintiff’s judicial performance.

Prior to the publication of the Newfield series, a separate news article appeared in the New York Daily News reporting that Justice Rinaldi was one of four Judges accused by the Joint Legislative Committee on Crime of handing down "wrist-slap” sentences in felony narcotics cases. During the time that the Newfield articles were appearing, the New York Times published a news story that plaintiff had sentenced an organized crime figure, charged with bribery of a police officer, to a fine of $250, while, on that same day, he imposed a sentence of imprisonment, with a maximum of five years, on a 19-year-old youth alleged to have robbed a drugstore.

In May, 1973, plaintiff brought an action against the Village Voice and its advertising agency for libel and invasion of privacy committed in an advertisement for the Voice which appeared in the New York Times. The advertisement contained a caricature of the plaintiff and the text referred to the first of the original articles in the Newfield series. Defendants’ motion for summary judgment was denied and the action was subsequently settled before trial. (See Rinaldi v Village Voice, 47 AD2d 180, cert den 423 US 883.) The complaint was predicated on the assertion that, after publication of the original articles, the Voice received information which refuted Newfield’s allegations of misconduct.

Plaintiff was indicted, on November 13, 1973, by the Extraordinary Special Grand Jury of Kings County on two counts of perjury committed before the Grand Jury. The Grand Jury had been investigating Justice Rinaldi’s disposition of two cases unrelated to those reported earlier by New-field. Upon indictment, plaintiff was suspended from performance of judicial duties. He was acquitted of these charges in August, 1974, and was re-elected to the Supreme Court, without opposition, in November, 1974.

During the pendency of the criminal charges against plaintiff, Holt, Rinehart & Winston, Inc., a publishing house, published a book by Jack Newfield entitled "Cruel and Unusual Justice”. The book consisted largely of reprints of Newfield’s original Voice and New York Magazine article. The articles were edited slightly for style and form during the course of preparation of the book and were updated through the addition of postcripts. The book is divided into two parts. The first part, "Prisons”, related to a description of alleged abuses committed in various penitentiaries located in New York State. The latter portion of the book, "Courts”, contains the reprints of Newfield’s original series on judicial performance and selection in New York City.

Plaintiff commenced this action for libel against Newfield, Holt, Rinehart & Winston, and the Village Voice. Special Term granted summary judgment to the Voice on the ground that the Voice had merely acquiesced in the republication of the alleged libel. However, motions by the other two defendants for summary judgment were denied. On cross appeals, the Appellate Division affirmed. The only issue presented to our court is whether the separate motions for summary judgment of defendants Newfield and Holt, Rinehart & Winston were properly denied.

Plaintiff alleged, in his complaint, that defendants maliciously published false, scandalous and defamatory matter by which defendants meant "that the plaintiff was and is a corrupt, venal, biased, incompetent and unqualified justice of the Supreme Court of the State of New York who should be removed from office.” The particular statements in each chapter contended to be objectionable may be briefly excerpted and summarized. Importantly, the passages of the book to which we refer are only those specifically put at issue by the plaintiffs complaint. Equally important, the passages that are at issue contain serious charges that have never been substantiated in a court of law. The ultimate truth of the Newfield charges has never been determined. Of the greatest significance, and an important caveat, our references to, and discussion of, the Newfield charges at the root of this case, in no way reflect any view as to the accuracy, or even the legitimacy, of the extremely grave accusations that have been made by Newfield against the plaintiff.

In a chapter entitled, "The Ten Worst Judges in New York”, Newfield wrote that plaintiff "is very tough on long-haired attorneys and black defendants, especially on questions of bail, probation, and sentencing. But his judicial temper softens remarkably before heroin dealers and organized crime figures.” Newfield set forth three illustrative cases. In August, 1972, a narcotics distributor, named Norman Burton, with a history of 12 prior arrests, had been held on a charge of heroin possession and on a charge of attempted bribery of a police officer. Plaintiff released Burton without bail. In October, 1970, another narcotics dealer, Clifton Glover, had been permitted to plead guilty and was then given a conditional discharge. Glover could have received a maximum sentence of 25 years’ imprisonment. Glover had been charged with a class C felony for which the statute specifically prohibited the imposition of conditional discharges. The third case, People v Vario, arose in Suffolk County, where plaintiff was assigned for the summer of 1967. Plaintiff "caused a local scandal” by permitting three prominent organized crime figures, charged with bribery and conspiracy, to plead guilty to misdemeanors and assessing only $250 fines. The prosecutor had recommended that the three each serve at least one year in prison.

In a second chapter, "Justice Gets a Fix”, Newfield again reported plaintiff’s dispositions in People v Burton and People v Glover. With reference to his release of Burton without bail, it was stated, "[t]his was not the first time Judge Rinaldi has let a heroin dealer go free. He has a reputation among lawyers and court reformers for going soft on pushers, especially when they are represented by certain well-connected bail bondsmen and lawyers”. Newfield wrote that "what Judge Rinaldi is doing is no small thing. He is putting people on the street who sell death for a profit.” It was reported that, in the Burton case, plaintiff "abused” the officer who had reported the bribery attempt-

Newfield stated that he had spent several weeks carefully analyzing records of plaintiff’s previous dispositions. Newfield detected a "disturbing pattern”. "Blacks and Puerto Ricans got high bail and long sentences. Defendants connected with organized crime families were treated permissively—motions granted, misdemeanor pleas accepted, suspended sentences given, fines imposed instead of jail terms. Occasionally large-scale heroin dealers would get inexplicably lenient sentences, even conditional discharges, for Class A felonies. And certain Brooklyn lawyers would almost always win their cases against Rinaldi. My instincts smelled a rat. I decided to begin a personal crusade to alert the judicial, legal, and political establishments to this incompetent and probably corrupt member of the judiciary.”

Although these two chapters contained the bulk of the criticism of plaintiff, plaintiff was also mentioned in several other portions of the book. Newfield advocated the removal of plaintiff from judicial office, asserting that there was a "sufficient pattern of incompetent decisions” made by plaintiff "to justify the rare spectacle of a judicial trial.” Further, Newfield contended that plaintiff has "influential friends outside the court system”, as evidenced by his assignment to Suffolk County part of the year, despite the objections of the local District Attorney. Plaintiff allegedly was "cruel and abusive to defendants”. Finally, it was reported that "[ejvery law enforcement agency in the state is aware” of plaintiff’s "reputation for going easy” on members of organized crime. Assertedly, "the Joint Legislative Committee on Crime has a whole file full of suspicious dispositions” by plaintiff in cases involving organized crime.

In his complaint, the plaintiff alleged that, as a result of the book, his good name and reputation have been damaged and he has been held up to public scorn, ridicule and contempt. He sought $5,000,000 in damages. No special damages were alleged. Plaintiff’s contention is that Newfield failed to accurately report the facts of the cases relied upon to illustrate his conclusion that plaintiff was "incompetent”, "probably cor-rapt”, and "suspiciously lenient”. He points to the fact that, in People v Burton, the defendant was before him solely on the bribery charge and not for any drug offense. Another Judge had previously released Burton without bail on the drug charges and plaintiff, with the consent of the District Attorney, followed the prior disposition. However, the transcript of the proceedings indicates that plaintiff had originally decided to put the defendant in jail and did not change his decision until after he had an angry altercation with the arresting officer. In reference to People v Glover, plaintiff admits he imposed an illegal sentence, but contends that this was done, again with the prosecutor’s consent, so that defendant might immediately commence service of a Federal sentence (which was based upon a judgment on which the time to appeal had expired). Thus, Glover was not freed and permitted to walk the streets, as alleged by Newfield. Plaintiff also contends that he permitted the misdemeanor pleas in People v Vario because the prosecutor recommended it in light of an appellate decision which directed the suppression of wiretap evidence crucial to the felony count. Yet, the transcript does reflect that plaintiff assessed only fines, whereas the prosecutor had sought one-year terms of imprisonment.

There is a fourth case in dispute as well, People v Agro, mentioned in the New York Times account. In this case, defendants were charged with having conspired to swindle large sums of money from Macy’s department store. Upon the recommendation of a prosecutor, all defendants were permitted, by plaintiff, to plead to petit larceny. Plaintiff subsequently gave Salvatore Agro a suspended sentence. The official transcript reflects that only the attorney for the defendant, and no prosecutor, appeared at the sentencing proceeding.

Plaintiff also relies upon two reports which found Newfield’s accusations to be without merit. The first report is by the Brooklyn Bar Association and is dated November 13, 1972. This report was issued after the publication of the original article but prior to the publication of the book. In the book, Newfield refers to the report and quotes from it. Newfield countered the report by writing that the author of the report was a "Court Street” lawyer "with ties to the Brooklyn clubhouses” and had interviewed only the plaintiff in preparing the report. The second report, dated June 8, 1973, is by the Committee on State Courts of Superior Jurisdiction of the Association of the Bar of the City of New York. Although the report is dated prior to the publication of the book, the copy in this record is marked "confidential” and the report was not actually released until 10 months later, after "Cruel and Unusual Justice” had been printed and shipped to retail outlets for sale. However, both reports concluded that Newfield’s accusations against plaintiff were unfounded.

There is only one further fact to be noted. In the course of an examination before trial, Newfield stated that the sources for some of his disparaging comments about Justice Rinaldi were attorneys, some from the Legal Aid Society, who regularly practice in the Brooklyn courts. While he disclosed the identity of a few of his sources of information, Newfield, for the most part, invoked the benefits of a statute shielding newsmen from contempt for failure to reveal a news source. (Civil Rights Law, § 79-h.) His authority to do so has not been challenged but the defendants have been precluded from calling as witnesses at the trial any source who Newfield refused to identify.

It is true, as noted by the dissent (p 388), that Newfield in the course of an examination before trial in the earlier action against the Voice, made a self-serving statement that he had not intended to allege corruption or venality. It is also true, and more to the point, that, in Newfield’s answer in this action, it was admitted that the articles complained of "speak for themselves”. Newfield’s affidavit, submitted on the summary judgment motion in this action, specifically states that it is his contention "that the allegedly defamatory material originally published in the Voice (and later republished in [the book]) was true at the time of publication.” Indeed, he later asserted that "at the time I completed work on [the book], I had no reason to doubt the accuracy of the material contained therein and to this very day continue to believe in the accuracy of all the factual material contained in the book, as well as the reasonableness of the many opinions I drew therefrom.” It is concluded, then, from a realistic appraisal of the record that, aside from three minor inaccuracies upon which plaintiff places no reliance, the truth of the statements made by Newfield, including the ultimate accusation of corruption, is in open dispute.

To begin with, we have no doubt that the complaint states a good cause of action for libel per se and that there was no need for plaintiff to allege special damage. "Any written or printed article is libelous or actionable without alleging special damages if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of,their friendly intercourse in society.” (Sydney v Macfadden Newspaper Pub. Corp., 242 NY 208, 211-212; Gates v New York Recorder Co., 155 NY 228, 231, 232.) Certainly, to falsely state that a Judge is incompetent and corrupt, especially where, as here, there are strong undertones of illegality, is to hold him up to disgrace and contempt. Thus, unlike James v Gannett Co. (40 NY2d 415, mot for rearg den 40 NY2d 990), there is no question but that at common law, as it stood prior to New York Times Co. v Sullivan (376 US 254, supra), the statements complained of are defamatory. But the matter does not end there.

The plaintiff is a public official and this libel action is, therefore, governed by the constitutional principles first enunciated in New York Times Co. v Sullivan (376 US 254, supra). In the Times case, the Supreme Court took note of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (376 US, at p 270.) The court ruled that the First Amendment prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless the official proves that the statement was made with actual malice—i.e., with knowledge that the statement was false or with reckless disregard of whether it was false or not. (376 US, at pp 279-280.) The constitutional standard requires that the plaintiff establish the existence of actual malice by proof of "convincing clarity”. (376 US, at pp 285-286.)

More recent decisions make clear the great extent to which New York Times and its progeny have altered traditional rules governing libel actions. At common law, the libelous statement was presumed to be false and the defendant carried the burden of pleading and proving, in defense, that the statement was true. (See, e.g., Prosser, Torts [4th ed], § 116, p 798; Seelman, Law of Libel and Slander in New York, pars 170, 392.) Although there has been doubt (see Restatement, Torts 2d, § 582 and comment thereon), the burden is now on the libel plaintiff to establish the falsity of the libel. (Cox Broadcasting Corp. v Cohn, 420 US 469, 490.) This requirement follows naturally from the actual malice standard. Before knowing falsity or reckless disregard for truth can be established, the plaintiff must establish that the statement was, in fact, false.

The nature of the statement is critical. The First Amendment does not recognize the existence of false ideas. "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.” (Gertz v Robert Welch, Inc., 418 US 323, 339-340.) Opinions, false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions, provided that the facts supporting the opinions are set forth. (Buckley v Littell, 539 F2d 882, 893, cert den 429 US 1062; Restatement, Torts 2d, § 566.) Especially in a State in which Judges are elected to office, comments and opinions on judicial performance are a matter of public interest and concern. The rule of the Times case was designed to protect the free flow of information to the people concerning the performance of their public officials. (Garrison v Louisiana, 379 US 64, 77.) The public, clearly, has a vital interest in the performance and integrity of its judiciary.

The expression of opinion, even in the form of pejorative rhetoric, relating to fitness for judicial office or to performance while in judicial office, is safeguarded. (Cf. Letter Carriers v Austin, 418 US 264, 283-284.) Erroneous opinions are inevitably put forward in free debate but even the erroneous opinion must be protected so that debate on public issues may remain robust and unfettered and concerned individuals may have the necessary freedom to speak their conscience. (See New York Times Co. v Sullivan, 376 US 254, 271-272, supra.) Plaintiff may not recover from defendants for simply expressing their opinion of his judicial performance, no matter how unreasonable, extreme or erroneous these opinions might be. (See Hotchner v Castillo-Puche, 551 F2d 910, 913.)

"Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” (Craig v Harney, 331 US 367, 376.) Judicial office is not a place for those who are oversensitive to comments made in the public press. As Mr. Justice Powell stated in Gertz v Robert Welch, Inc. (418 US 323, 344, supra): "An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.” Judicial office demands an even higher price. Judges are constrained, by principles of judicial ethics, to refrain from engaging in unseemly public debate. (Cf. Code of Judicial Conduct, Canon 3, subd [A], par [6].) Obedience to the rule of silence can be painful when matters of personal integrity are at stake.

Whether a particular statement constitutes fact or opinion is a question of law. (Letter Carriers v Austin, 418 US 264, supra; Gregory v McDonnell Douglas Corp., 17 Cal 3d 596, 601.) To state that a Judge is incompetent is to express an opinion regarding the Judge’s performance in office. Likewise, to advocate a Judge’s removal from office is to express the opinion that the Judge is unfit for his office. Both opinions, even if falsely and insincerely held, are constitutionally protected, if the facts supporting the opinion are set forth. Here, Newfield set forth the basis for his belief that plaintiff is incompetent and should be removed. Based upon the facts stated and public debate provoked by the statements, each reader may draw his own conclusion as to whether Newfield’s views should be supported or challenged. In short, the matter is subject to public debate. Plaintiff may not delimit that debate by seeking to punish, through libel damages, those who would contribute to the debate through the circulation of strong, even harsh, contrasting opinions. By our holding, we do not necessarily imply our acceptance of Newfield’s views; we say only that he has the right to express and circulate his opinion, whether he is right or not.

Newfield’s assertions that plaintiff is "probably corrupt” and that his sentences of certain defendants were suspiciously lenient, with their strong undertones of conspiracy and illegality, rest on a different footing than his opinions as to plaintiff’s judicial performance. These words were not used merely in a "loose, figurative sense” to demonstrate Newfield’s strong disagreement with some of plaintiffs dispositions. (See Letter Carriers v Austin, 418 US 264, 284, supra.) The ordinary and average reader would likely understand the use of these words, in the context of the entire article, as meaning that plaintiff had committed illegal and unethical actions. Accusations of criminal activity, even in the form of opinion, are not constitutionally protected. (Gregory v McDonnell Douglas Corp., 17 Cal 3d 596, 604, supra; cf. Palm Beach Newspapers v Early, 334 So 2d 50, 52 [Fla]; St. Amant v Thompson, 390 US 727, 730; but see Garrison v Louisiana, 379 US 64, 76-77, supra.) While inquiry into motivation is within the scope of absolute privilege, outright charges of illegal conduct, if false, are protected solely by the actual malice test. As noted by the Supreme Court of California, there is a critical distinction between opinions which attribute improper motives to a public officer and accusations, in whatever form, that an individual has committed a crime or is personally dishonest. No First Amendment protection enfolds false charges of criminal behavior. (Gregory v McDonnell Douglas Corp., supra; cf. James v Gannett Co., 40 NY2d 415, supra.)

Here, plaintiff has not set forth sufficient evidentiary facts to generate a triable issue of fact as to the falsity and actual maliciousness of the accusations of criminal conduct. It is the plaintiffs burden to establish that he is not "probably corrupt” and that no sentences were unduly lenient. Although plaintiff was acquitted of criminal charges, the acquittal came after publication and involved dispositions other than the ones at issue in this case. While plaintiff has established that Newfield omitted certain facts from his statement of the cases, Newfield’s over-all accusations have not been rebutted by anything more than a general denial of wrongdoing. Hence, there are no evidentiary facts which would support plaintiff’s claim that Newfield’s accusations are false. Further, there is no triable issue as to actual malice. Newfield did undertake a certain amount of investigation and there is no proof that he published his allegation of probable corruption knowing that allegation to be false or in reckless disregard of its truth. Even if his accusations are false, as they may well be, the Constitution, as interpreted by the United States Supreme Court, bars recovery.

As to Holt, Rinehart & Winston, the case is even stronger. The publisher placed its reliance upon Newfield’s reportorial abilities and there is no showing that Holt, Rinehart & Winston had, or should have had, substantial reasons to question the accuracy of the articles or the bona fides of its reporter. (E.g., James v Gannett Co., 40 NY2d 415, 424, supra; St. Amant v Thompson, 390 US 727, 733, supra; Trails West v Wolff, 32 NY2d 207, 219.) Indeed, the New York Times article and plaintiffs subsequent indictment lent credence to Newfield’s account. Similarly, the publisher could elect to credit its author’s version of the facts as well as his reasons for discrediting the Brooklyn Bar Association report. That the articles drew criticism when originally published did not preclude a responsible publishing house from reprinting them. (See, also, Edwards v National Audubon Soc., 556 F2d 113.)

It is true, of course, that false statements of fact can be actionable. However, the omissions in this case are not so material as to alter significantly the conclusion to be drawn from the episodes reported. (Cf. Hotchner v Castillo-Puche, 551 F2d 910, 913-914, supra.) Although a sentencing court may place a certain amount of reliance upon representations of the attorneys appearing before it, including, of course, prosecutors, the court, and not the prosecutors, has the ultimate responsibility for the sentences imposed. Furthermore, the book was clearly not designed to be an objective account of plaintiffs judicial dispositions. The book took definite editorial positions on significant issues and advocated reforms and corrective action. Plaintiff was not the central focus of the book. It was a book written from a subjective, rather obvious, point of view and did not purport to be anything else. Although he could not make up facts out of whole cloth (cf. Spahn v Julian Messner, Inc., 21 NY2d 124, app dsmd 393 US 1046), omission of relatively minor details in an otherwise basically accurate account is not actionable. This is largely a matter of editorial judgment in which the courts, and juries, have no proper function. (James v Gannett Co., 40 NY2d 415, 424, supra.) To paraphrase Chief Justice Burger’s statements in Miami Herald Pub. Co. v Tornillo (418 US 241, 258), the choice of material to go into a book and the decisions made as to limitations on size and content, and treatment of public issues and public officials, whether fair or unfair, constitute the exercise of editorial judgment. "It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.” Moreover, the factual omissions are not at the root of this action. The gravamen of the complaint is directed at the opinions advocated by Newfield and, for the reasons previously set forth, those opinions are not actionable.

The award of summary judgment in libel actions, as in civil actions generally, is appropriate where there are no material triable issues of fact. (E.g., CPLR 3212; James v Gannett Co., 40 NY2d 415, supra; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 200; Trails West v Wolff, 32 NY2d 207, 221, supra; Gilberg v Goffi, 21 AD2d 517, 527, affd 15 NY2d 1023; Bandelin v Pietsch, 563 P2d 395 [Idaho, 1977].) After a thorough review of the extensive record compiled in this case, we are of the view that plaintiff has failed to establish the existence of triable issues, which, if resolved in his favor, would warrant a finding of libel liability. The defendants’ motions for summary judgment should have been granted.

With reference to the dissent, it should be noted that the rule of the Times case is not to be applied woodenly or mechanically. The principles established in New York Times Co. v Sullivan and developed in subsequent cases, represent significant protections for the lifeblood of a free, fair, responsive and responsible press. To be independent of political influence, to inform the reading public on matters of concern and interest, and to perform its important, yet informal, task, especially valued in this decade, of light-shedding on the activities of government officials, the press must be safeguarded from crippling libel suits, brought to punish those who exercise free speech and to deter others, by chilling the atmosphere, from expressing disagreement in public forums. To be sure, the standards enunciated in the Times case are strict. But laxity is not permitted here, because under Federal constitutional principles, loose rules and only casual judicial review with a bias toward the tort plaintiff would hamper the operations of the free press. Judge J. Edward Lumbard has stated the guiding principles well. "These strict tests may sometimes yield harsh results. Individuals who are defamed may be left without compensation. But excessive self-censorship by publishing houses would be a more dangerous evil. Protection and encouragement of writing and publishing, however controversial, is of prime importance to the enjoyment of first amendment freedoms. Any risk that full and vigorous exposition and expression of opinion on matters of public interest may be stifled must be given great weight. In areas of doubt and conflicting considerations, it is thought better to err on the side of free speech.” (Hotchner v Castillo-Puche, 551 F2d 910, 913, supra.)

In response to Judge Fuchsberg’s concurring opinion, only two comments are necessary. It is totally unwarranted to suggest that, somehow, judicial immunity from libel suit bears on, or relates to, the imposition of a constitutional burden of proof on a Judge who brings a libel action. Quite apart from whether the statements of Judges should be privileged, which is a matter of State law, Judges are public officers to whom the Federal constitutional decision in New York Times Co. v Sullivan is applicable. This is the point of the majority opinion. To the extent that it misses the point, the concurring opinion reflects a misunderstanding of the constitutional law of libel.

Secondly, the comments made in the same concurring opinion with respect to the desirability of increasing the effectiveness of the legal profession in rising to the defense of allegedly falsely maligned Judges are expressly disapproved. Whether the organized legal community should develop rules to govern the question of protecting Judges from assertedly unfair criticism is a matter for the legal community itself to resolve. It would be tasteless and inapt for our court as an institution, or for any one of us, to express any view on this matter at this time, much less approvingly cite proposed rules only recently put forward for discussion purposes. Finally, we have no doubt that the profession will, as it has always done, rise to the defense of reputable Judges falsely accused in the public press. Indeed, in this case, two different bar associations studied the matter and publicly supported the plaintiff. The honorable will be doubtless defended; only those whose conscience is stained need fear.

To conclude, the Supreme Court has required that a libel plaintiff who is a public official must carry a constitutional burden of proof with convincing clarity. On this record, we cannot say that there are triable issues of fact, which if resolved in plaintiff’s favor, would permit a jury to conclude that the constitutional burden of proof by convincing clarity has been satisfied.

Accordingly, the order of the Appellate Division should be reversed and defendants’ motions for summary judgment granted. The question certified by the Appellate Division is answered in the negative.

Chief Judge Breitel (concurring).

I concur in result and subscribe to the opinion of Judge Jasen. I do so however on the constraint of the controlling Supreme Court cases which at this time place undue burdens of proof on the defamed, whether public officials or private persons injected into the arena of public interest. For an illustration, I find it virtually impossible to bear the burden of proving that one is not "corrupt” or "probably corrupt”. Moreover, ordinarily, the test of clear and convincing evidence of malice would be one addressed as an evidence-weighing standard for fact finders to follow rather than a standard applied as a matter of law on summary judgment. Yet the present state of the law as declared by the Supreme Court makes necessary the implications and analysis cogently drawn by Judge Jasen. Consequently, I vote to reverse and grant summary judgment in accordance with the majority opinion.

Fuchsberg, J. (concurring)

While joining the decision to reverse, I believe some additional comments about the position of a Judge who is unfairly maligned are in order.

To discourage possible inhibition of the vigourous, forthright and independent performance of their official duties, Judges, in our society, are afforded an absolute immunity from any suit arising therefrom (e.g., Pierson v Ray, 386 US 547). The existence of such an immunity, though not rooted in constitutional principles alone (Yates v Lansing, 5 Johns 282 [Kent, Ch. J.], affd 9 Johns 395), renders the role of public criticism of the judiciary all the more critical. If anything, it emphasizes the fact that Judges are entitled to no exemption from the virtually absolute protection accorded by the First Amendment to public expression regarding public officials generally. It is generally agreed that one of the supporting pillars of our society, perhaps more so now than when life was less impersonal, is the rigorous enforcement of this right.

Thus, assuming that the defendants’ comments about Judge Rinaldi were, as he painstakingly points out, one-sided, inaccurate and unfairly damaging, the remedy, as with so much other false or unwise speech, has to be "more speech, not enforced silence” (Whitney v California, 274 US 357, 377 [Brandeis, J., concurring]). None of us can be unsympathetic to the real anguish that unwarranted attacks can engender. But public need outweighs personal considerations.

Perhaps the answer lies in Judges themselves. We must recognize that, in the absence of facts tending to prove actual malice, all criticism of the judiciary is protected; in that regard, I must say I am somewhat less persuaded than is the majority by the distinction it draws between "opinions” and "accusations” or that the latter is entitled to lesser constitutional protection than the former. In any event, if the fact is that Judges may be subject, without legal recourse, to attacks, which sully their reputation without cause, I most respectfully, but firmly, suggest it is the obligation of the legal community to speak out in their defense in such circumstances with greater effectiveness. I further suggest, with equal respectfulness and equal firmess, that, in such a matter, which bears on public confidence in the administration of justice, it is most appropriate for us to say so. (For movement in that direction see, generally, Rules for Responding to Unjust Criticism Proposed by Judges, New York State Bar Association, State Bar News, vol 19, No. 4, June, 1977, p 8.)

Gabrielli, J. (dissenting in part).

I respectfully dissent as to the grant of summary judgment in favor of the defendant Jack Newfield. As the majority quite properly observes, the charge that plaintiff is "probably corrupt” is a statement of fact and not an expression of opinion. To utter a charge that someone is "corrupt” or "probably corrupt” is to assert that the individual is, as a matter of fact, guilty of a crime or an act of moral turpitude (compare Buckley v Littell, 539 F2d 882, 895; cert den 429 US 1062, where the court held that defendant’s charge that plaintiff was a "libeler” was a defamatory statement of fact; Edwards v National Audubon Soc., 556 F2d 113, in which the court held that defendant’s statement that plaintiffs were "paid liars” was defamtory because it implied corruption and and did not merely constitute a poor opinion of scientific integrity; cf. Rosenblatt v Baer, 383 US 75). There may be those who find difficulty in the precise delineation of the distinction between fact and opinion but I submit that defendant Newfield’s statement of "probable corruption” in the context of this case must be categorized as factual in nature. The statement is not one of opinion or comment as to plaintiff’s judicial ability or fitness for office, or a characterization of his attitude toward the various categories of litigants appearing before him, but is instead a specific and pointed assertion relating to his honesty and integrity which should be deemed libelous per se (cf. Berney, Libel and the First Amendment—A New Constitutional Privilege, 51 Va L Rev 1, 10-13). Thus, I agree that the charge of corruption stands on a different footing from some of the other comments with respect to plaintiffs competence and fitness for judicial office. I reject however the majority’s conclusion that plaintiff has not met his burden of proving that he is not "probably corrupt”. There is no burden upon him to do so at this stage of the lawsuit. On a motion for summary judgment to dismiss the complaint it is necessary only that a genuine issue of fact be shown to exist and, of course, it is manifestly significant and important to recognize as we must, that all factual inferences must be drawn in favor of the party opposing the motion (6 Carmody-Wait 2d, NY Prac, § 39.29, p 476). Plaintiff has advanced a sufficient showing of the falsity of the charge of corruption to survive the present motion. The report of the Association of the Bar for the City of New York concluded that "Newfield failed to substantiate his charges against Justice Rinaldi”. Several counts of the indictment against plaintiff were dismissed and he was acquitted following a jury trial of the remaining counts. Other sources including the Brooklyn Bar Association and attorneys familiar with the cases reported by Newfield, indicated the inaccuracy and incompleteness of his version of Judge Rinaldi’s sentencing and bail decisions in those cases. In his moving papers, defendant does not assert the truth of the statement that plaintiff is "probably corrupt”, nor does he attempt to advance any support for that statement. Contrary to the majority’s belief, Newfield’s assertion that the "allegedly defamatory material originally published in the Voice * * * was true” does not relate to the charge that plaintiff is "probably corrupt” which did not appear in the original articles. Newfield himself, in fact, stated that "in none of these [Voice] articles do I allege corruption or venality”.

It must be concluded that Newfield’s additional characterization of the plaintiff as "suspiciously lenient” is libelous per se for, even as states the majority, "we have no doubt that the complaint states a good cause of action for libel per se” since it is the law that: " '[a]ny written or printed article is libelous * * * if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace’ ” (p 379). Indeed, the majority concedes that the characterization of plaintiff as "suspiciously lenient” stands as an accusation of criminal behavior which is not constitutionally protected (p 382).

This brings me to the crucial issues in this case: whether plaintiffs cause of action against defendant Newfield may survive a motion for summary judgment on the issue of actual malice. Notwithstanding the propriety of the vehicle of summary judgment in a libel case (see Trails West v Wolff, 32 NY2d 207, 221), to prevail on a motion for summary judgment the moving party must demonstrate that there are no triable issues of fact (see, generally, 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05c). As indicated above, it is of utmost importance that, in determining such a motion, the court must draw all inferences of fact in favor of the party opposing the motion (6 Carmody-Wait 2d, NY Prac, p 476); and a motion for summary judgment should be granted only when it is absolutely clear that no triable issue of fact is presented (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212.1, p 424). On the facts of this case as revealed in the pleadings and the motion papers, one is compelled to conclude that the question of defendant Newfield’s actual malice must be submitted to the jury. In this case, "[t]he finder of fact * * * [should] determine whether the publication was indeed made in good faith” (St. Amant v Thompson, 390 US 727, 732). Defendant Newfield has advanced no basis other than plaintiff’s dismissed indictment for his charge of corruption. The facts pertaining to the dispositions of various cases by plaintiff reported on by the defendant did not provide the factual basis for the charge. Newfield was aware that the articles were factually incomplete and presented a biased view of Judge Rinaldi’s decisions. While such a presentation could not, of course, itself be the basis of a libel action, the omission of glaring facts favorable to Judge Rinaldi bears significant relevance to the issue of actual malice. Attorneys having knowledge of the specific cases reported by Newfield had written letters to New York Magazine and the Village Voice, the publishers of the original articles, identifying specifically the misleading and incomplete portions of Newfield’s accounts. Newfield was made aware of the content of these letters during his deposition in a prior, separate action for libel based on the publication of the original articles (Rinaldi v Village Voice, 47 AD2d 180, cert den 423 US 883). That deposition of course, preceded the publication of the book which generated the instant libel action. Also, prior to the publication of the book Newfield had received a copy of a report by the Brooklyn Bar Association which outlined the inaccuracies and omissions in Newfield’s accounts of certain cases presided over by plaintiff. Newfield also admitted reading the minutes in those four cases which themselves confirmed the unbiased report made by the bar association. In light of this undisputed knowledge, there is, at the very least, a triable issue of fact whether Newfield had "serious doubts” as to the truth of the charge of corruption. The defendant places great reliance on the fact that plaintiff had been indicted for perjury and obstruction of justice to negate the claim of actual malice. However, the indictments in those cases were in no way related to the cases which were the subject of Newfield’s book. Furthermore, the indictment provides no independent basis for the statement of probable corruption because an indictment has no probative value (People v Cook, 37 NY2d 591, 596). As defendant is undoubtedly aware, in our system of law, a person is presumed innocent until proven guilty. On the basis of the specific allegations of fact concerning defendant Newfield’s awareness of the lack of support for his charge of corruption, I do not believe that it would be proper to conclude at this stage that plaintiff could not, as the law requires, establish with clear and convincing evidence that defendant Newfield’s statement was made with knowledge of falsity or reckless disregard of truth or falsity (Kent v City of Buffalo, 29 NY2d 818, 819; New York Times Co. v Sullivan, 376 US 254, 279-280; Gertz v Robert Welch, Inc., 418 US 323, 342). These specific allegations of evidentiary fact compel a denial of defendant Newfield’s motion for summary judgment; if. proved at trial, they would provide ample support for a jury finding that Newfield certainly entertained "serious doubts” concerning the truth of the statement that plaintiff was "probably corrupt” (compare Indig v Finkelstein, 23 NY2d 728, 729; Still-man v Ford, 22 NY2d 48, 53; Shapiro v Health Ins. Plan of Greater N. Y, 7 NY2d 56, 63). On the record in this case the issue of clear and convincing evidence is, as indeed it should be, one for the jury to pass upon. To require any plaintiff to demonstrate by motion papers the existence of a triable issue of fact with respect to "actual malice” more clearly and convincingly than plaintiff has done in this case is to summarily foreclose the possibility of ever bringing a libel action to the trial stage. Even the United States Supreme Court has not sought to erect so formidable and impenetrable a barrier for plaintiffs in libel actions. By its decision in this case, the majority today effectively outlaws the disposition of libel cases except by summary judgment in favor of defendants. Even more foreboding is the fact that today’s decision makes public officials fair game for those who are quick to fire off allegations of wrongdoing on the basis of knowingly or recklessly false and inaccurate reports. I cannot conclude that the New York Times Co. v Sullivan rule was intended to render public officials the helpless targets of reckless reporting and ill-founded allegations of corruption.

In conclusion, it should be emphasized that this case presents a delicate and difficult dilemma. We are profoundly committed to a strong and free press especially in the area of political debate and critique of government, even to the extent that a certain degree of harm to the reputation of public officials will be permitted in order to preserve the unimpeded flow of information to the public and to prevent the muffling of the critic’s voice (see Time, Inc. v Pape, 401 US 279, 290-292; New York Times Co. v Sullivan, supra, p 279). Indeed, our society is probably unique in its tolerance of sharp and robust criticism of public officials and government. On the other hand, however, we are equally committed to individual rights and in particular to the guarantee that one is presumed innocent until proven guilty in accord with the mandates of due process of law (US Const, 14th Arndt). Situations arise when these rights come into conflict. The task of balancing the competing interests may not be shirked by the ritualistic incantation of the rule of New York Times Co. v Sullivan (supra), as the majority concedes. Rather, the balancing must be achieved by a painstaking examination of the particular facts of each individual case in which the rights of the press and the rights of the individual are counterpoised. Newfield may entertain and express whatever opinion he may have concerning plaintiff’s judicial abilities and his performance of the duties of his office. His right to do so is the very essence of the First Amendment. However, to state that a public official is guilty of illegal conduct without any factual basis whatsoever or with a knowingly inadequate foundation to support such a statement (as in this case where Newfield was made aware of the gross errors in factual statements he made before the book was published) should not fall within the sphere of expression protected by the First Amendment. The harsh and drastic remedy of summary judgment should not be granted where such baseless allegations of corruption and incompetence have been made and the plaintiff has set forth sufficient factual allegations to demonstrate that the maker of the statements in "reckless disregard” of his awareness. Thus, I vote to modify the order of the Appellate Division by granting the motion of defendant Holt, Rinehart & Winston for summary judgment and, would otherwise affirm, thus allowing the case against defendant Newfield to proceed to trial.

Chief Judge Breitel and Judges Jones, Wachtler and Cooke concur with Judge Jasen; Chief Judge Breitel concurs in a separate opinion in which Judge Wachtler also concurs; Judge Fuchsberg concurs in result only in another opinion; Judge Gabrielli dissents in part and votes to modify in another opinion.

Order reversed, with costs, and appellants’ motions for summary judgment granted. Question certified answered in the negative.

       There are three relatively minor inaccuracies which are conceded by Newfield and upon which plaintiff does not place any degree of reliance. Newfield had reported that all three defendants in the Vario case had received $250 fines. However, only the principal defendant, Paul Vario, received such a fine. The other two defendants were fined $500. In People v Glover, the maximum sentence which defendent could have received was 15 years’ imprisonment, not the 25-year term reported by Newfield. Finally, as discussed in text, Norman Burton had been arraigned solely on the bribery charge, not upon both bribery and drug selling charges as Newfield had written. However, plaintiff was, admittedly, aware of the narcotics charges that gave rise to the bribery allegation.

      . A charge of corruption goes essentially to the motive behind an individual’s acts. As one court has noted, "[t]he state of a man’s mind is as much a fact as the state of his digestion” (Edgington v Fritzmaurice, 29 Ch D 459, 483 [CA]).

      . I am required to concur in the majority’s disposition of the case with respect to defendant Holt, Rinehart & Winston. The record does not sustain a finding that the publisher possessed a high degree of awareness or serious doubts as to the falsity of the claim of corruption. Holt reasonably relied on defendant Newfield’s investigative reporting (cf. Edwards v National Audubon Soc., 556 F2d 113, supra), although it later developed to be without factual foundation or warrant.