This is the return date of an order to show cause why the prosecutor of Hudson County should not be enjoined from presenting to the Hudson County grand jury testimony and evidence of allegedly fraudulent challenge permits employed in the June 3, 1969 primary. The order further directs the prosecutor to show cause why he should not be superseded in this investigation by the Attorney General and why he ought not recognize Harold J. Ruvoldt, Jr. as associate counsel pursuant to N.J.S.A. 19:34-63 in any presentation to the grand jury.
The proceeding involves a number of novel legal issues which must be understood in the political context of Hudson County, 1969.
On May 13, 1969 Jersey City underwent the initial phase of its mayoral election. Since no one received a majority, the two highest candidates, Thomas J. Whelan, backed by the county Democratic organization, and Thomas Gangemi vied in the June 17 runoff.
On June 3, 1969 the gubernatorial primary election in Hudson County to a large extent pitted the same forces against each other. This time the standard bearer for the organization was Senator William Kelly, while former Governor Robert B. Meyner drew the support of the Gangemi and other anti-administration forces.
It is alleged in the affidavit of Nicholas D'Agosto, acting clerk of the Hudson County Board of Elections, that on June 3, 1969 he discovered several fraudulent challenge permits in circulation. He notified the prosecutor, who immediately initiated an investigation and began issuing subpoenas to various persons to appear before the grand jury on the following Monday. It is admitted that over 70 persons were subpoenaed to appear before the grand jury prior to the institution of this action.
On June 5, 1969 plaintiffs Harold J. Ruvoldt and Harold J. Ruvoldt, Jr., two of the persons subpoenaed, who are also members of the bar of this State, filed a complaint in the Law Division of the Superior Court charging, among other things, that the prosecutor was illegally exercising powers delegated by the Legislature to the superintendent of elections and that he was using his office to influence the Jersey City runoff election in violation of plaintiffs' constitutional rights.
Plaintiffs sought an injunction against the prosecutor, his supersedure by the Attorney General, and his recognition of Harold J. Ruvoldt, Jr. as his associate counsel in any presentation of these matters to the grand jury.
This court issued a temporary restraint enjoining the prosecutor from presenting any testimony or compelling any witnesses to appear before the grand jury pending this return date. The prosecutor's motion to dissolve the restraint was denied on June 6, 1969. At the hearing upon that motion
the Attorney General intervened on behalf of the superintendent of elections as well as on behalf of all the people of the State to request that the restraint continue until this return date. The Attorney General argued that this would insure a free and unimpaired election without any possibility of intimidation. He further argued that the investigation was properly for the superintendent of elections, and not the prosecutor, to make. The court, therefore, directed that the superintendent and the Attorney General be made parties defendant. The court further directed that plaintiffs file an amended complaint amplifying their allegations of constitutional injury. The amended complaint was filed only yesterday, June 18, 1969.
Plaintiffs in their brief state that they seek relief both individually and as members of a class. The complaint makes no allegation that it is a class action. However, since this was the obvious, though inarticulated, intent, the court considers the pleadings amended as such, and treats the suit as a spurious class action. R.R. 4:36-1(c). There is some question whether this action should technically be considered a complaint in lieu of prerogative writs sounding in prohibition, or whether it is more correctly denominated as an equitable action. In view of our practice, and since the jurisdiction of this court includes both law and equity, this question is academic. In any event, it is accepted law that the court can enjoin a prosecutor who under color of his office acts beyond his authorized powers. Brex v. Smith , 104 N.J. Eq. 386 (Ch. 1929); Bantam Books, Inc. v. Melko , 25 N.J. Super. 292 (Ch. Div. 1953) modified 14 N.J. 524 (1954). While it is true that both these cases spoke of equity protecting property rights from an overzealous prosecutor, it cannot be gainsaid today that personal rights warrant at least as much ...