Decided As Amended August 25 1989.: June 5, 1989.
On appeal from Superior Court, Law Division, Union County.
Antell, Brochin and Conley. The opinion of the court was delivered by Antell, P.J.A.D.
Samuel H. Rodriguez appeals from an order of the Law Division dated October 11, 1988, directing that a transcript of his testimony before the Union County Grand Jury on August 24, 1988, be released to the Mayor of the City of Elizabeth "and thereafter to the public." The order was issued on application of the Union County Prosecutor neither to serve the purpose of any pending civil or criminal judicial proceeding nor to support the allegations of a grand jury presentment, but only to shed light on the veracity of statements made by Rodriguez during the course of a political campaign. By our orders dated October 11 and October 19, 1988, the order under review was stayed pending this appeal. The material facts follow.
Rodriguez, a councilman of the City of Elizabeth, challenged the incumbent mayor, Thomas Dunn, in a Democratic primary election scheduled for June 7, 1988. On June 1, 1988, a political advertisement paid for by the "Committee to Elect Sam Rodriguez" entitled "Truthfully Speaking," appeared in the county newspaper. Among other things it stated the following:
The past twenty-four years have been filled with the corruption and scandals of the Dunn Administration. He put his son on the City payroll, rewards his friends with tax breaks and lives a very good life on City taxes and an
overflowing campaign treasury. Sam Rodriguez will restore ethics and honesty to City government. While Elizabeth has come to be known as the "Drug Capital of the East" Dunn lets drug pushers sell drugs on our streets and in our schools! It took him twenty four years, until an election year, to create a Narcotics Division in our Police Department. Sam Rodriguez will expand the police role and make sure it has the resources to get drugs off our streets and out of our schools. * * * It is time to end the corruption, the payoffs, and the scandals. The Dunn years have been costly and embarrassing. On June 7, elect a new team with new ideas. With Sam Rodriguez as Mayor, and Dexter Martin, Jack McKenna and "Mike" Guarino, Councilmen at Large, we can restore ethics and honesty to Elizabeth.
On June 8, 1988, following the election, in which Mayor Dunn prevailed, a local daily newspaper published an article written about Rodriguez in which the following excerpts appeared:
"Tom Dunn and his machine had the money to buy, the power to intimidate," Rodriguez said, prompting cheers and shouts of "Amen." "His votes were very, very expensive. He had to deceive the people."
When asked if he would pursue corruption allegations against Dunn as he promised earlier, Rodriguez said, "We will substantiate any allegations we made." Rodriguez said he would let his attorney decide how to proceed with the charges.
On June 14, 1988, Rodriguez was quoted in a local daily newspaper as stating that the advertisement which appeared on June 1 was drafted without his approval, but that he would assume responsibility for it, "just like a father whose son is making a mistake is responsible for the child's actions." He was also quoted as saying "I did not necessarily mean it was the 'capital.' I probably meant to say Elizabeth is one of the cities that has one of the largest drug problems of the East." The article also stated that Mayor Dunn had called upon the Union County Prosecutor to investigate Rodriguez' allegations.
Following two invitations by the prosecutor, to which he did not respond, Rodriguez was subpoenaed to appear before the grand jury on August 24, 1988. The testimony which he gave before that body is the subject of the order under review.
Before applying to the court for a disclosure order on September 14, 1988, the prosecutor asked Rodriguez to consent to public disclosure of his ...