On petition for review of Rule 1:17-1.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock and O'Hern. For reversal -- Justices Handler and Garibaldi. Pollock, J., concurring in part and dissenting in part. Garibaldi, J., dissenting. Pollock, J., concurring in the result.
This case raises questions concerning the proper balance of a public employee's First Amendment rights of freedom of expression and association with the performance of the public's business. It is necessary to state at the outset what this case is not about, and what it is about. The case is not about a neighborhood housewife serving on a PTA who wishes to work in the court system. The case is primarily about a holder of three appointed political offices who wants to remain active in other branches of government while serving as a courtroom officer. One of the great reforms of the judicial article of the 1947 New Jersey Constitution was the complete separation of politics from the judiciary. We do not believe that constitutional principles of free speech and association require our sanction of a politicized judicial system. We deny the court officer's request to continue to serve in the political offices while employed as a court officer. We also deny the court officer's request to continue to serve in an advocacy role as an officer in two private organizations involved in issues that inevitably spill over into the public arena.
This case involves a judicial employee's challenge to court restrictions upon her right to serve on other governmental boards and bodies and as an officer of nonprofit associations that influence governmental policymaking. We hold that when such activities pose a realistic likelihood of (1) involving the judicial employee in important and recurring public issues that
are frequently the subject of political controversy; (2) giving the impression of judicial involvement in those issues; and (3) creating the appearance of a judiciary lacking in impartiality either in general or on such social or political issues, these activities interfere with the paramount responsibility of the judiciary to maintain the independence of its members and employees in both fact and appearance. We find that the activities considered in this record realistically pose the likelihood of such a disruptive effect upon the work of the judiciary. Accordingly, we deny the employee's request to continue the activities while serving as an officer of the court.
The petitioner, Norma Randolph, was hired by the Sheriff of Monmouth County as a court attendant in January 1983. She is a uniformed employee who attends the judges of one or more of the courts located in the Monmouth County Court House in Freehold, New Jersey. Her duties include supervision of the activities of parties, jurors, and witnesses in the courtroom; the work of court crier; swearing in witnesses; sequestering jurors; and in general the performance of nonsecurity tasks related to the conduct of courtroom business. Shortly after the commencement of her employment, petitioner submitted a list of her outside activities to the Monmouth County trial court administrator. After review, the Administrative Office of the Courts advised petitioner that she could not continue to serve, as requested, on the Monmouth County Mental Health Board, the Freehold Borough Municipal Youth Guidance Council, the Freehold Borough Citizens Participation Committee for HUD, or the Freehold Borough Board of Assessment, "primarily because they are committees of other branches of government, and also they involve a significant likelihood of involvement in political activity." The letter further advised Mrs. Randolph that she could not continue as an officer in the National Association for the Advancement of Colored People and the United Progressive Homeowners and Taxpayers Association, Inc. because these activities also hold a substantial potential for political activity.
On May 6, 1983, the Assignment Judge of Monmouth County entered an order for compliance with these restrictions, requiring the Sheriff of Monmouth County to reassign Mrs. Randolph should she continue to be engaged in these outside activities. On May 30, 1983, a notice of petition for review on behalf of the Sheriff of Monmouth County was filed with the Supreme Court. The Supreme Court granted the petition and ordered a factual hearing as to the organizational activities of Mrs. Randolph. 94 N.J. 549 (1983). A hearing was held on October 21, 1983 before a judge of the Superior Court of Monmouth County. That court submitted recommended findings of fact in accordance with the Supreme Court's order. The petitioner does not take exception to any of those findings, merely adding to them that Mrs. Randolph is the mother of four children and that on the modest salary of a court attendant she supports herself and her youngest son, who is about to enter college; that she has been involved in community activities for over thirty years; that she is an exemplary citizen whose service to the community has gained her many awards, and is deeply committed to the service of her community.
It is no longer appropriate to dispatch such worthy goals and desires with an epigram as Justice Holmes could do when sitting on the Supreme Judicial Court of Massachusetts: "A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517-18 (1892). "It is [now] too late in the day to doubt that the liberties of * * * expression may be infringed" indirectly, but just as improperly as directly, by labeling them as conditions upon the privilege of employment. Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 1794, 10 L. Ed. 2d 965, 971 (1963). Public employees do not shed their constitutional rights when they undertake such service. Hence, careful attention must be paid to Norma Randolph's petition to engage in the activities while she serves as a judicial employee. None doubts that she is indeed an exemplary citizen whose desire to continue to serve
her community on its public boards and through community organizations fulfills for her a deep commitment to help others. The question is whether that desire can be reconciled with the public's need for confidence that the judiciary will be unquestionably impartial in resolving the disputes that necessarily arise in community life.
In Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), the Supreme Court reviewed its development of the law relating to the rights of government as employer to regulate the speech of employees. In Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), the Supreme Court held that government cannot condition public employment on the surrender of First Amendment rights. Nonetheless, in Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), the Court recognized that government as an employer has interests "in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 568, 88 S. Ct. at 1734, 20 L. Ed. 2d at 817.*fn1 In Pickering, the Court invoked a balancing test: the
First Amendment rights asserted by the employee must be weighed against the disruptive effect of the activities on the government's ability to provide services. 391 U.S. at 568, 88 S. Ct. at 1734, 20 L. Ed. 2d at 817.
In Connick v. Myers, supra, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708, the Court refined the test by holding that if "employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community," disciplinary measures taken in response to such expression cannot be challenged under the First Amendment absent the most unusual circumstances. Id. at 146-47, 103 S. Ct. at 1689-1690, 75 L. Ed. 2d at 719-20. In that case an assistant district attorney about to be transferred from one section of the criminal court to another circulated a questionnaire among her colleagues soliciting their views about office conditions. The prosecutor, viewing this as a "mini insurrection," fired the assistant prosecutor. The Supreme Court held that the protection afforded under Pickering extends only to "matters of legitimate public concern" and regarded this incident as only an individual grievance. It therefore was not a matter of public concern (with the exception of one issue concerning pressure to work in electoral campaigns).
We need not engage in the sharp debate that divides the Supreme Court over Connick 's threshold requirement of a "public concern" test for protected employee speech and expression. Here, there is no question that Norma Randolph's concerns are deeply public and invoke none of the strictly internal employee grievances that Connick speaks of.
Both the majority and the dissent on the Supreme Court would appear to agree that the Pickering-Connick rationale is
to seek a balance "between the interest of public employees in speaking freely and that of public employers in operating their workplaces without disruption." Rowland v. Mad River Local School Dist., U.S. , , 105 S. Ct. 1373, 1376, 84 L. Ed. 2d 392, 395 (1985) (Brennan, J., dissenting from denial of certiorari in Mem. No. 84-532).
Petitioner contends that In re Hinds, 90 N.J. 604, 614 (1982), mandates a stricter standard under the New Jersey Constitution, requiring a court to consider that:
First, the limitation must "further an important or substantial governmental interest unrelated to the suppression of expression." Procunier v. Martinez, 416 U.S. 396, 413, 94 S. Ct. 1800, 1811, 40 L. Ed. 2d 224, 240 (1974). Second, the restriction must be "no greater than is necessary or essential to the protection of the particular governmental interest involved." [ Id. ]
We must observe, however, that Hinds did not arise in the context of employee speech. Hinds was an attorney speaking on the quality of justice in a pending trial. Had a court employee undertaken to offer a rebuttal expressing an opinion on the defendant's guilt, there can be no doubt that the judiciary as employer would have been able to prohibit such interference with the defendant's right to a fair trial. The Pickering Court specifically declined to state a "general standard" by which all conflicts could be judged. Note, "Politics and the Non-civil Service Public Employee: A Categorical Approach to First Amendment Protection," 85 Colum.L.Rev. 558, 560 (1985).
We are satisfied that the balancing process to be employed will take into account the two factors of Hinds as we weigh in the balance the substantial interest of the judiciary, the forms of expression involved, and the availability of other means to achieve the goals of the judiciary. We believe that the same considerations are implicit, if not explicit, in the analysis under both constitutions and point toward the same result. See Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985). We do not perceive, then, the protections afforded by the New Jersey Constitution as distinctly different in this context. Hence, we must focus carefully on the specific activities and expression
that the employee wishes to continue in order to determine whether these activities will have a disruptive effect upon the work of the judiciary.
We begin by emphasizing New Jersey's unique commitment to an independent judiciary. This concern for an independent judiciary is at the heart of the American legal system. One of the great advances made in the structure of government by our Federal Constitution was its provision for an independent judiciary whose judges could perform their duties as they saw fit without fear or favor. The plan of our Federal Constitution was to preserve as far as possible the liberty of our people by guaranteeing that they have judges wholly independent of the government or any of its agencies. A judiciary is not independent unless courts of justice are enabled to administer justice, absent pressure from without.
Especially in the administration of the criminal law -- that most awesome aspect of government -- society needs independent courts of justice. This means judges free from control by the executive, free from all ties with political interests, free from all fears of reprisal or hopes of reward. The safety of society and the security of the innocent alike depend upon wise and impartial criminal justice. [ Pennekamp v. Florida, 328 U.S. 331, 356-57, 66 S. Ct. 1029, 90 L. Ed. 1295, 1309 (1946) (Frankfurter, J., concurring).]*fn2
The founders of our institutions, deeply distrustful of judges beholden to the Crown, sought to guarantee forever liberty under law. To preserve their freedoms, they created three branches of government, and vested executive, legislative, and judicial powers in these separate agencies to guarantee the
independence of each. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 962, 103 S. Ct. 2764, 77 L. Ed. 2d 317, 351 (1983) (Powell, J., concurring). The judicial article of our 1947 Constitution largely mirrors Article III of the United States Constitution. Our judges shall be appointed by the Executive with the advice and consent of the Senate; they "shall hold their offices for initial terms of seven years and upon reappointment shall hold their offices during good behavior." N.J. Const. of 1947 art. VI, sec. 6, paras. 1 and 3. They are and must be divorced from all aspects of public life. "They shall not, while in office, engage in the practice of law or other gainful pursuit." N.J. Const. of 1947 art. VI, sec. 6, para. 6. Like judges in the federal system, they are to hold their office during good behavior, their compensation is not to be diminished during their continuation in office, and they may be removed only by impeachment or statutory removal proceedings. N.J. Const. of 1947 art. VI, sec. 6, paras. 3, 4 and 6. In addition, they shall hold no other office and "[a]ny such Justice or Judge who shall become a candidate for an elective public office shall thereby forfeit his judicial office." N.J. Const. of 1947 art. VI, sec. 6, para. 7. The Code of Judicial Conduct recommended by the American Bar Association and adopted by this Court reinforces the strict impartiality of the judiciary. In particular, Canon 7 of the Code of Judicial Conduct admonishes a judge to refrain from political activity. Our Court's concern for restriction of activities has been evidenced by restrictions upon judges that exceed the minimum restrictions imposed by the Code of Judicial Conduct. For example, we believe that we are alone in expecting that judges will not teach or lecture for compensation. In short, we have imposed restrictions in the public interest and in the interest of an independent judiciary that far exceed the minimal restrictions suggested by the American Bar Association Canons.
This policy has been implemented by Rule 1:17-1, which applies the ban on political activity and candidacy for an
elective public office not only to judges but to all court personnel. The rule provides:
The following persons in or serving the judicial branch of government shall not hold any elective public office nor be a candidate therefor, nor engage in political activity * * *:
(b) The Administrative Director of the Courts, the Clerk of the Supreme Court, the Clerk of the Superior Court, the Clerk of the Tax Court, and all employees of their respective offices, and official court reporters;
(c) Probation officers and all employees of county probation departments;
(f) Law secretaries, stenographers, sergeants-at-arms, court criers, assignment clerks, courtroom clerks, court attendants and all public employees regularly assigned to a judge or court;*fn3
(i) Clerks, deputy clerks, violations clerks and all persons employed by or regularly assigned to a municipal court.
At stake here is the fulfillment of the constitutional ideal:
It was almost fortuitous that the pre-1948 system produced so many fine judges and was in fact so seldom touched by the pressure of outside politics. In any event, the turnabout in 1948 was complete, such that there exists today a court system independent of partisan political or other outside pressures of any kind. So was and is being served the interest of the people of New Jersey in an independent judiciary. [ In re Gaulkin, 69 N.J. 185, 192 (1976).]
What can we say of this ideal of judicial independence that has not been said? That "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution," The Federalist No. 78, at 484 (A. Hamilton) (H. Lodge ed. 1888); that any "lessening [of] the independence of the judiciary [attacks] not only the judicial power, but the democratic republic itself," A. de Tocqueville, Democracy in America 289 (Vintage Books 1945); that "we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of
liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact," S.Rep. No. 711, 75th Cong., 1st Sess. 14 (1937) (rejecting the 1937 court-packing plan). These are not the words of dreamers, these are the words of realists reminding us to remain true to the ideal. The judiciary seeks to advance these governmental interests by its rule proscribing political activities by judicial employees. That ideal requires "judges beholden to no man, independent and honest and -- equally important -- believed by all men to be independent and honest * * *." Chief Justice A. T. Vanderbilt, The Challenge of Law Reform (Princeton Univ. Press 1955) at 11 (emphasis added).
In application of the rule to petitioner, several threshold questions have been raised. The first is whether we should limit our rule to partisan political activity. Petitioner points out that the prior rule referred to " partisan political activity," rather than simply "political activity," suggesting that such interpretation would fully effectuate the purposes set forth in Canon 7 of the Code of Judicial Conduct. We disagree. There is more to political activity than party politics. Those who "attempt to influence governmental policymaking, their activities -- and the views of members who disagree with them -- may be properly termed political." Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231, 97 S. Ct. 1782, 1797, 52 L. Ed. 2d 261, 281 (1977). In our pluralistic society advocacy organizations play a vital role in the exercise of political power. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. , 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985). It is naive to think of even advisory boards or bodies as not influencing the body politic. It has been traditional in New Jersey's judiciary to construe "political activity" to include activity supporting or opposing different sides of social, political, and legislative issues. Not only is a judge prohibited from engaging
in political activities, Canon 7, but the permission of Canon 5(B) to engage in "civic and charitable activities" is qualified by the language that they "not reflect adversely upon his impartiality or interfere with the performance of his judicial duties" and further that the organization is "not conducted for the economic or political advantage of its members." Our construction of the restriction on political activity to cover issue activity is based on the inevitable identification of the judge with the particular parties, organizations, or candidates advocating positions on the issues that may come before the court. Simply put, issue activity is political activity. Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981). Moreover, the consistent administrative interpretation of our Rule, even in its prior form, has been to limit outside political activities, even those that were not partisan in nature. As we shall see in the substantive discussion of the petitioner's activities, we are convinced that there is a clear danger to the appearance of neutrality that must be maintained by all connected with the judiciary, including judges and employees.
Second, petitioner contends that although these restrictions are appropriate for judges, they are unnecessary for nonjudicial employees whose role in the system is not perceived as being as direct as that of the judge. The Pennsylvania Supreme Court in In re Prohibition of Political Activities by Court-Appointed Employees, 473 Pa. 554, 375 A.2d 1257 (1977), articulated the reasonableness of such political activity bans on persons such as assistant probation officers by stating: "The purpose of [the ban], of course, was to maintain not only the independence, integrity and impartiality of the judicial system but also the appearance of these qualities." Id. at 560, 375 A.2d at 1259 (emphasis added); see also Opinion of the Justices to the Senate, 375 Mass. 795, 376 N.E. 2d 810 (1978) (judicial employees may be required to file financial disclosure statements to sustain confidence in impartiality of justice system).
Thus, in Connealy v. Walsh, 412 F. Supp. 146 (W.D.Mo.1976), an officer of the juvenile court was terminated from her job because she refused to remove a "McGovern" bumper sticker from her car. The court upheld the dismissal largely because of the possible appearance of bias and the potential effect of a display of political affiliation on her relationship with those individuals she was to help.
The court in Connealy emphasized that where the employee's duties "require establishment and maintenance of a relationship of trust and confidence . . . the state has a valid interest in prohibiting activities which would adversely affect that relationship." Id. at 155. Although the bumper sticker represented traditional party affiliation, that court noted that a sticker supporting candidates of the Nazi party or the Ku Klux Klan, for example, could destroy the relationship of confidence between court officers and the juveniles who appear in the court system. Id. at 156. Regardless of the affiliation, there are members of society who see such symbols as signs of oppression or enmity, which when identified with the judiciary or its employees are equally dangerous to the independent stance of the judiciary.
[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. [ Id. at 158 (quoting Civil Service Comm'n v. Letter Carriers, supra, 413 U.S. at 565, 93 S. Ct. at 2890, 37 L. Ed. 2d at 809).]
Missouri's interest in preserving public confidence in the fact and appearance of the integrity and impartiality of the judiciary was compelling and outweighed the employee's interest in publicly expressing her political preference. Connealy v. Walsh, supra, 412 F. Supp. at 158; see also Phillips v. Adult Probation Dep't of San Francisco, 491 F.2d 951 (9th Cir.1974) (deputy probation officer may be prohibited from displaying signs expressing opinion in favor of fugitive radicals). But see Abbott v. Thetford, 529 F.2d 695 (5th Cir.1976) (judicial prohibition against institution of litigation by probation officer invalid
because motivated by judge's disapproval of the litigation, not disruption of court practices).
In each of these instances it is recognized that speech, association, and expression of judicial employees may be restricted if there is a substantial likelihood of interference with or disruption of the administration of the court's services. It is the practice that we have long followed.
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 public appearance thereof. [In re Gaulkin, supra, 69 N.J. at 189 (emphasis added).]*fn4
That continuous tradition was molded in a series of decisions, the most prominent of which followed closely upon the adoption of a 1961 Court Rule specifically banning partisan political activity by court employees and requiring the covered employees to request prior approval to hold any other public office.*fn5 In the early years following the adoption of the Rule, the Court quickly determined that the prohibition of "partisan political [101 NJ Page 440] activity" was broader than the concept of traditional party politics. Thus it ruled that judicial employees should not be active in non-partisan movements to change the forms of city government or in voter registration drives because such activity was, although non-partisan in the party sense, clearly political in the sense of involving the judiciary in political activity. In a series of decisions interpreting the Rule, the Court would not permit court attendants or court aides or court clerks or probation officers to serve, among other things, as members of a local board of education, on a board of adjustment, as a tax assessor, on a commission for youth and economic rehabilitation, on the municipal utilities authority, in an anti-poverty program, on a county community action planning committee. These restraints, as noted, became express following the 1969 amendment to the Rules that specifically prohibited any form of political activity by court officials; and, generally speaking, since then our decisions have precluded service by such persons as probation officers and court clerks on parking authorities, boards of adjustment, planning boards, library boards, boards of health, drug abuse commissions, local property owners' associations, youth guidance councils, and a national political organization of women. At the same time, the Court was not intractable in adopting a rule that would ban all outside activity by court employees. Its decisions reflect a focus on two guiding factors: (1) the closeness of the employee to the judge; and (2) the probability that the political issues, whether partisan or not, are those around which political campaigns might be shaped.*fn6 From these decisions and principles, then, we have
distilled a flexible rule that is tailored to the relationship or proximity of the employee to the decision-maker and to the nature and extent of the political activities sought to be engaged in by the employee. Each case requires a careful balancing of the interests involved. Thus the Court has determined that service by a probation officer on a municipal shade tree commission be approved because the appointment was not likely to involve the officer in controversy; that a probation officer be allowed to serve on a county advisory committee on alcoholism because of the special role of the probation services in understanding such concerns and because of the assistance it could render in the program and the limited role of the agency itself. These decisions reflect a balance that is related to the closeness of the employee to the judicial decision-maker and the realistic likelihood that the activities will become the focus of public controversy.
Our dissenting members chide us on two scores: they claim that we have adopted a "blanket ban" on all community and civic involvement, post at 474, but at the same time accuse us of inconsistency through "uneven application," post at 464. What they see is a process at work. In almost every judicial decision, sound arguments can be made for the opposite result. Only the actual exercise of that balancing process will determine whether the activities pose a realistic likelihood of involving the employee in important and recurring public issues that are a frequent subject of political controversy, that create the appearance of judicial involvement in those issues, and that
generally give the appearance of a judiciary lacking in impartiality on the issues involved.
With these specific principles for guidance, we turn to the particular activities to determine whether they can be continued without offending the outlined principles and without ...