John J. Lemken is the duly elected Surrogate of Hudson County. As the result of an indictment returned against him by the Hudson County grand jury, the Supreme Court entered an order on May 31, 1973 (amended on June 14, 1973) which "restrained and enjoined [him] from serving as Judge and Clerk of the Surrogate's Court of Hudson County and as Clerk of the Probate Division of the Hudson County Court pending the disposition of the indictment."
Thereafter, Lemken applied to the Supreme Court for clarification of the order, seeking permission to perform certain functions in the surrogate's office which he asserted were beyond the ambit of the aforesaid restraining order. The Supreme Court denied the application without passing upon the merits of the same and without prejudice to an application to the assignment judge for the presentation of proofs with respect to items which the applicant asserts to be beyond the scope of the Supreme Court's restraining order.
Accordingly, application was made to me as assignment judge of Hudson County, pursuant to which a hearing was
held at which the surrogate and the county were represented by counsel and proofs were offered in support of the application.
The surrogate contends that there are a group of functions performed by him as an elected constitutional officer which are not encompassed within his functions as "Judge and Clerk of the Surrogate's Court and as Clerk of the Probate Division of the Hudson County Court," and therefore beyond the reach of the imposed restraints. He argues, furthermore, that the Supreme Court did not remove or suspend him as surrogate because such an act would have been beyond the power of the court, citing In re Mattera , 34 N.J. 259, 268 (1961), and that the recent statute authorizing the Supreme Court to suspend or remove a judge does not include a surrogate within its specific terms. N.J.S.A. 2A:1B-1 et seq.
The question whether the Supreme Court has the power to suspend a surrogate is not before me for decision, nor am I called upon in this proceeding to consider the power of the Supreme Court to issue the restraints involved. That underlying legal problem has been argued and determined by the Supreme Court adversely to the applicant by virtue of the assumption of jurisdiction and the entry of the restraining order.
It is within the foregoing framework that I must determine the limited issue whether there are any residual functions of a surrogate which may be continued by the applicant without violating the order of the Supreme Court.
In the testimony before me Lemken advanced the suggestion that he should be permitted to perform the following functions as beyond the reach of the restraint:
1. Preparation of the budget for the surrogate's office.
2. Review and certification of payrolls.
3. Supervision of ordering and purchasing of office ...