On appeal from Superior Court of New Jersey, Law Division, Essex County, whose opinion is reported at N.J. Super. .
Furman, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D. Furman, P.J.A.D. (dissenting).
[219 NJSuper Page 254] Defendant appeals from an order of the Law Division directing him to vacate one of his two elected offices, Surrogate of Essex County or Councilman-at-large of the City of Newark. The trial judge based his decision upon a perceived duty under R. 1:18 to enforce R. 1:17-1(g), prohibiting a Surrogate from
holding another elective public office and from all political activity except as directly related to seeking reelection.
Defendant has raised four issues, with subparts. He first attacks the subject-matter jurisdiction of the Superior Court, contending that neither R. 1:18 nor the general rule-making power of the Supreme Court can confer subject-matter jurisdiction upon the court. The second point challenges plaintiff's standing. The third issue contests the constitutionality of the trial court's direction to defendant to resign one of his two offices in three aspects: its applicability to a municipal councilman; its establishment of a remedy in addition to impeachment for removal of a constitutional officer; and its alleged violation of the separation of powers provision of the Constitution. The last issue alleges a general violation of the rights of defendant and the electorate.
The facts giving rise to this litigation are relatively simple. Defendant, then a councilman-at-large of the City of Newark, ran for and was elected to the office of Surrogate of Essex County in November 1986. He took office January 1, 1987 for a five-year term expiring December 31, 1991. His four-year term as a councilman will expire June 30, 1990. He avers that he does not plan to seek reelection as a councilman and, therefore, will not run for election for another public office while holding the office of surrogate. He receives annual salaries of $28,000 for his city council position and $50,000 as surrogate. Neither position is required to be full-time.
Plaintiff is an attorney-at-law of New Jersey and a resident and taxpayer of the City of Newark. He contends that his sole interest in initiating this action was to vindicate the public interest, since he perceived that defendant held the office of surrogate in direct violation of R. 1:17-1(g).
Under the New Jersey Constitution of 1947, county surrogates are elected constitutional officers who serve a five-year term. N.J. Const. (1947), Art. VII, § II, par. 2. Surrogates' functions and procedures, which are governed by statute, see
N.J.S.A. 2A:5-1 et seq., include the probate of wills, issuance of letters of administration of estates, appointment of guardians, filing and clerical administration of various Superior Court matters (including adoptions and accountings) and supervision of pools of money awarded to minors resulting from litigation but which cannot be distributed until the minor reaches 18. Where a dispute arises in any matter, such as whether the technical requirements for a will are satisfied, the surrogate relinquishes jurisdiction and the issue is litigated in the Superior Court. See In re Conda, 72 N.J. 229, 233-234 (1977); and see generally N.J.S.A. 2A:3-1 to 2A:3-7.
In his March 30, 1987 opinion granting judgment for plaintiff, 219 N.J. Super. 402, the trial judge observed that the Superior Court was required by R. 1:18 to enforce the restrictions set forth by R. 1:15 and 1:17 on judges and surrogates concerning private practice of law and political activity and, therefore, had subject matter jurisdiction over the action brought by plaintiff. Noting that "being embroiled in political controversy is Mr. Harris' bread and butter" in his city council post, the trial judge determined that defendant would not be able to avoid a "juxtaposition of allegiances, either real or perceived" between his city council position and his role as judicial officer. The trial court cited In the Matter of Randolph, 101 N.J. 425, cert. den. U.S. , 106 S. Ct. 2289, 90 L. Ed. 2d 730 (1986), to illustrate the concern of the New Jersey Supreme Court and of the drafters of both the New Jersey and Federal Constitutions over the separation of politics from the judiciary. Because defendant was mistaken as to his right to hold the two offices simultaneously and did not intentionally violate R. 1:17-1, the court determined that Harris would not be required to reimburse either Essex County or the City of Newark for salaries he received for whichever of the two offices he chooses to resign. Plaintiff has not cross-appealed from this latter determination.
After plaintiff initiated this lawsuit, defendant petitioned the New Jersey Supreme Court, requesting that he be granted
permission to continue to hold both offices concurrently until the end of his current city council term. The Supreme Court denied this petition without prejudice on February 18, 1987 pending the disposition of the Law Division proceedings, permitting defendant to seek "leave to renew the . ...