For relaxation of Administrative Policy -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the Court was delivered by Hughes, C.J.
[69 NJ Page 188] This application for the review and relaxation of an administrative policy enunciated by the Court is somewhat unusual in nature. It was initiated by a petition filed by one affected by the policy, Mrs. Ellen Gaulkin, wife of a Judge of the New Jersey Superior Court. In a most appropriate way she had sought the views of the Supreme Court as to the propriety of her intended candidacy for public office in view of her husband's judicial position. Upon the expression of our negative opinion, she acceded for the time, although disagreeing with it, and reserved the right to contest further. She is properly here now, as are the amici who have also briefed and argued the cause, which in itself is not adversarial in nature. Cf. In re National Broadcasting Co., 64 N.J. 476 (1974). Through its chairman the Supreme Court's Advisory Committee on Professional Ethics joined in argument for explication of the reasons relevant to the origin and existence of the policy. There has been no adjudicatory hearing as such, nor indeed is such hearing necessary where the Court is exercising legislatively its constitutional power to formulate court rules and policy. Cf. American Trial Lawyers Assoc. v. New Jersey Supreme Court, 66 N.J. 258 (1974).
Since 1948, when the judicial system created by Article VI of the 1947 Constitution came into existence, judges and others officially associated with that court system have been wholly divorced from involvement in partisan or other political activity, as a necessary sacrifice for the sake of judicial integrity and the public appearance thereof. This separation is thought in this State (all judges in New Jersey are appointed) to be indispensable to public confidence in the courts and their probity, impartiality, disinterested objectivity and freedom from outside pressures in their dealing with causes coming before them. Such public confidence in judicial integrity is the foundation (along with Constitution and law) of our courts' power, influence and acceptance as necessary instruments in the effective administration of justice.
In recognition of that concept the people of New Jersey, in adopting our present Constitution, reposed in the New Jersey Supreme Court, a non-political entity, exclusive responsibility for the making of rules concerning practice and procedure in the courts thereby created, and for the admission and discipline of those admitted to the practice of the law. N.J. Const. (1947), Art. VI, § II, par. 3. The constitutional voice of the people thus vested in the Supreme Court a responsibility to "'keep the house of the law in order,'" American Trial Lawyers Assoc., supra at 264 (quoting from Gair v. Peck, 6 N.Y. 2d 97, 111, 188 N.Y.S. 2d 491, 502, 160 N.E. 2d 43, 51 (1959), appeal dismissed, 361 U.S. 374, 80 S. Ct. 401, 4 L. Ed. 2d 380 (1960)), and this responsibility obviously extended to the conduct of judges as well as attorneys in practice. In re Mattera, 34 N.J. 259, 264-65 (1961).
It was to implement this mandate that our Court perceived the need for extension of the judge's disqualification
from political involvement to include that of the spouse.*fn1 (To avoid confusion, this opinion will refer to the wife or husband of a judge as the "non-judicial spouse.")
In reaffirming this policy the present Court, through a letter to Judge Gaulkin on December 31, 1973, opined that the candidacy for public office of his spouse represented "a form of political activity which would, unintentionally but seriously, affect public confidence in the judicial system." This was then our position despite an assurance that such candidacy would not involve the typical indicia of political campaigns, such as association with a slate, or acceptance of campaign financing, or solicitation of endorsements, and Mrs. Gaulkin's further belief that her tenure and its incidents would not be subversive of the policy of the Court.
Mrs. Gaulkin, in forbearing her candidacy for the public office involved (an elected member of the Weehawken Board of Education; N.J.S.A. 18A:9-4, 18A:9-10, 18A:14-9), suggested that despite such temporary deference she would wish at a later time, pro bono publico, to ask the Court more formally to "reconsider the position it has taken." She expressed the hope, too, that meanwhile "the Justices [would] maintain an open mind on the subject so that it can be explored afresh at an early opportune occasion." The instant proceeding represents that occasion for the Court to consider further argument on the merits. But now we view the matter not only in the narrow aspect of reconsidering the views we expressed as to the Gaulkin candidacy, but with the broader reach of reexamining the whole policy of judicial abstention from political involvement and particularly the
wisdom as well as the constitutionality of the vicarious disqualification of a judge's spouse from that participation.
It goes without saying that our system of government is predicated upon the premise that every citizen shall have the right to engage in political activity. It is a basic freedom enshrined in the First Amendment. Sweezy v. New Hampshire, 354 U.S. 234, 250-51, 77 S. Ct. 1203, 1212, 1 L. Ed. 2d 1311, 1325 (1957); DeJonge v. Oregon, 299 U.S. 353, 364, 57 S. Ct. 255, 260, 81 L. Ed. 278, 283-84 (1937). This important right (except of course for the private exercise of the voting franchise) is relinquished by our judges upon ascendancy to the bench. In this state, at least, it has been clearly established that courts do not belong in politics, that the independence of the judiciary depends upon that separation, and that political ties and debts and their accommodation would demean and degrade the courts and ultimately corrupt them. So fixed are these principles that as to the judges themselves the withdrawal of the right of political participation, which enjoys constitutional protection, see, e.g., Storer v. Brown, 415 U.S. 724, 729, 94 S. Ct. 1274, 1278, 39 L. Ed. 2d 714, 723 (1974), is based upon the clearest of compelling needs for the decent operation of ...