Conda, Matter of

• Decision Date: 23 February 1977
• Citation: 72 N.J. 229,370 A.2d 16
• Parties: In the Matter of Elton A. CONDA, Surrogate of the County of Burlington.
• Court: New Jersey Supreme Court

Page 229

72 N.J. 229

370 A.2d 16

In the Matter of Elton A. CONDA, Surrogate of the County of Burlington.

Supreme Court of New Jersey.

Argued Jan. 6, 1977.

Decided Feb. 23, 1977.

Charles H. Hoens, Jr., Newark, for respondent (Lum, Biunno & Tompkins, Newark, attorneys).

Robert E. Cowen, Trenton, for Advisory Committee on Judicial Conduct.

PER CURIAM.

This proceeding had its inception in an investigation by the Advisory Committee on Judicial Conduct (Rule 2:15) of complaints received concerning the conduct of respondent in his capacity as Surrogate of Burlington County. While the complaints comprised six separate transactions or series of transactions, the Committee, after a full hearing, at which respondent was represented by counsel and testified, found four categories of cited conduct not substantiated but that, as to the two others, respondent had engaged in actions proscribed by the Code of Judicial Conduct. The first was the alteration of the designation of bank depositories set forth in orders made by county court judges so as to substitute the names of banks selected by respondent and to cause the deposits to be made in such banks rather than those specified in the court orders. The second was the use of respondent's Surrogate office facilities and employees for political purposes.

On the basis of the stated findings the Committee recommended that the court order repondent to desist from both of the objectionable courses of conduct specified and that he be publicly censured for such conduct as violative of the Code of Judicial Conduct. The Committee chose to recommend censure rather than removal, stating that becaure 'the Supreme Court has not ruled definitively upon the status of Surrogates and the standards of conduct applicable to them, it is the Committee's opinion that censure rather than removal would be the appropriate action in the first case in which the question is presented.'

We accordingly issued the order to show cause, directed to censure rather than removal, upon which we now render our determination.

I

We deal first with respondent's motion to dismiss these proceedings on the grounds that (a) the Committee and the Court have no jurisdiction to discipline respondent because he is not a 'judge' over whom the Court has disciplinary or removal power under either the Constitution of 1947 or the judicial removal act, L.1970, c. 151, N.J.S.A. 2A:1B--1 Et seq., and (b) the actions of repondent here complained of were not as a judge but as a clerk of the Surrogate's Court, rendering removal proceedings or judicial disciplinary sanctions inappropriate.

The first branch of respondent's motion is simply stated. The Constitution of 1947 does not mention surrogates in Article VI, the Judicial Article thereof, but does in Article VII, entitled 'Public Officers and Employees', which renders the office of surrogate an elective one. Moreover, the Constitution provides for removal of judges, apart from impeachment, only by Article VI, Section VI, par. 4, which provides that 'the Judges of the Superior Court and the Judges of the County Courts' shall be subject to removal by the Suprrme Court for such causes and in such manner as may be provided by law. The judicial removal act, cited above, provides for the removal of 'any judge of the superior court, county court, county district court, juvenile and domestic relations court and municipal court'. Respondent's position is that the office of surrogate is neither named in nor comprehended by the removal statute and that therefore R. 2:15--8, which implements the statute and includes 'Surrogate's Court' among the courts whose judges may be removed under the statute and rule, is to that extent invalid and ineffective.

The argument made by respondent in this regard is a substantial one. However, we need not resolve the point in this case as the order to show cause herein does not look to removal of respondent but rather to censure of him as a judicial officer. As will be seen, the Court has ample authority in that respect.

II

Notwithstanding respondent's contention that the Constitution of 1947 treats surrogates as public officers rather than judges, this classificatory nomenclature cannot derogate from the fact that a surrogate is a judicial officer and holds a court in our existing judicial system. N.J.S.A. 2A:5--1 states that:

There shall be but one surrogate elected in each county of this state. He shall hold the surrogate's court of the county and shall be both the judge and clerk thereof. * * *

In Mellor v. Kaighn, 89 N.J.L. 543, 546, 99 A. 207, 208 (E. & A. 1916), the court said: 'The surrogate of a county in probating wills acts judicially and holds a court'. Other judicial acts performed by surrogates include the issuance of letters of administration, appointment of guardians of minors, determination of decedent's domicile for purposes of jurisdiction to probate a will, determination of the value of small estates for purposes of devolution of estate to spouses and the issuance of commissions for the taking of depositions from out of state witnesses to wills. The fact that all such actions and determinations are Ex parte and that the surrogate may not resolve a contested or doubtful matter does not affect the judicial character of the acts and determinations involved. They are distinct from the separate function of the surrogate as clerk of the surrogate's court and as clerk of the probate division of the County Court. N.J.S.A. 2A:3--2.

It is thus apparent that the surrogate is a judicial officer performing important judicial functions in our court system. From that standpoint it is appropriate and in accord with sound public policy that he be held to be a judge, and subject both to the administrative oversight of the Chief Justice and the Supreme Court, see Constitution of 1947, Article VI, Section...