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Cupano v. Gluck

Decided: July 22, 1993.


On appeal from the Superior Court, Appellate Division.

For Vacation -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- none. The opinion of the Court was delivered by Clifford, J.


This appeal probes the reach of a county prosecutor's authority to investigate alleged election-law violations before receiving a referral from the Election Law Enforcement Commission (ELEC). The trial court refused to grant a permanent restraint of the defendant Prosecutor's investigation and to quash subpoenas that the Prosecutor's office had issued in connection with that investigation. The Appellate Division granted leave to appeal and entered an Order staying the investigation until ELEC had concluded its investigation and issued a report.

We granted leave to appeal, 130 N.J. 589, 617 A.2d 1215 (1992), and now vacate the Order of the Appellate Division.


Attempting to split the Democratic party in New Brunswick, several residents of that City formed a political organization known as the "New Democrats." The New Democrats created a ticket for positions on the City Council in the June 2, 1992, Democratic primary, to run against the ticket supported by the traditional Democratic organization in New Brunswick known as the "Regular Democrats."

Shortly before May 29, 1992, the New Democrats paid Wayne Dibofsky, a lobbyist for the New Jersey Education Association, $3,500 as a consulting fee, which was reported to ELEC as "consulting costs." In an interview with the Home News, a local newspaper, Dibofsky revealed that he had used the $3,500 to pay an anonymous printer who had done some work for the New Democrats' campaign. If Dibofsky did indeed make an anonymous

campaign payment, that payment could be construed as violating section 20 of the Campaign Contributions and Expenditures Reporting Act, N.J.S.A. 19:44A-1 to -47 (the Act), which prohibits anonymous campaign contributions and expenditures.

On May 29, 1992, after reading the account of the interview with Dibofsky, the Chairman of the Regular Democrats requested that Frederick Herrmann, the Executive Director of ELEC, investigate whether the election laws had been violated. The Chairman also sent a letter to Robert W. Gluck, the Middlesex County Prosecutor, requesting an "early investigation by [his] office into circumstances involving the 'New Democrats' campaign organization in New Brunswick."

On May 30, 1992, another article appeared in the Home News, which included an alleged statement by Joseph Vincze, campaign manager for the New Democrats, that a new report would be prepared and filed with ELEC identifying the printer who had accepted the payment from Dibofsky. As part of the investigation by the Middlesex County Prosecutor's Office, an investigator spoke with Vincze regarding the statements he had made in the Home News article. Vincze allegedly told the investigator that no new report would be filed.

On June 2, 1992, the investigator prepared subpoenas directed to plaintiff Vincze and to plaintiff Yirgu Wolde, treasurer of the New Democrats, to produce various campaign-related documents, including those related to printing, as well as samples of all campaign literature printed for the New Democrats' campaign. Those subpoenas called for the documents to be delivered before a Middlesex County Grand Jury on June 9, 1992.

Plaintiffs filed a Verified Complaint in the Law Division, seeking to stay temporarily the Prosecutor's investigation and to quash the subpoenas that the Prosecutor's office had issued. On June 9, 1992, the court granted that motion and also issued an Order to Show Cause why the restraint should not be made permanent. On June 16, 1992, the court denied plaintiffs' application for permanent relief, noting that N.J.S.A. 19:34-62, which provides

that a prosecutor in a first-class county may not exercise the authority of the Superintendent of Elections to investigate alleged violations of election laws in such counties, did not apply here because Middlesex County is a county of the second class. (Counties are classified according to population and population density. See N.J.S.A. 40A:6-1).

On June 17, 1992, the Prosecutor issued subpoenas that required plaintiffs Brown, Cupano, Russo, Vincze, and Wolde, as well as Dibofsky, to present the campaign-related documents to the grand jury. On that same day plaintiffs filed an emergent application to the Appellate Division for leave to appeal the denial of permanent relief, arguing that the Prosecutor had exceeded his authority by initiating the investigation without awaiting a recommendation from either ELEC or the Middlesex County Election Commission. Additionally, plaintiffs contended that the Prosecutor should have been precluded from participating in this matter because he is the former law partner of Thomas Kelso, the Executive Director of the Regular Democrats. Finally, plaintiffs argued that the subpoenas were overbroad in that many of the documents requested concerned issues that were irrelevant to the alleged illegal payment to lobbyist Dibofsky.

The Appellate Division granted plaintiffs' emergent application, stayed the Law Division order of June 16, 1992, and summarily reversed it. The Appellate Division reinstated the temporary stays that had been imposed on June 9, 1992, and directed that the stays continue until ELEC issued its report and recommendations regarding the alleged violations, pursuant to N.J.S.A. 19:44A-6b(10). That statutory section authorizes ELEC to "[f]orward to the Attorney General or to the appropriate county prosecutor information concerning any violations of this act [that] may become the subject of criminal prosecution or [that] may warrant the institution of other legal proceedings by the Attorney General." The order also provided that "[i]n the event of a further ...

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