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RANDOLPH v. LIPSCHER

August 22, 1986

NORMA RANDOLPH, et al., Plaintiffs
v.
ROBERT D. LIPSCHER, et al., Defendants



The opinion of the court was delivered by: THOMPSON

 Plaintiffs Norma Randolph and Nancy Menke *fn1" bring this action to challenge the constitutionality of Rule 1:17-1 of the Rules Governing the Court of the State of New Jersey ["Rule"] the relevant parts of which are as follows:

 
The following persons in or serving the judicial branch of government shall not hold any elective office nor be a candidate therefor, nor engage in political activity, nor, without prior written approval of the Supreme Court, requested through the Administrative Director of the Courts, hold any other public office, position or employment:
 
a) Judges;
 
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;
 
. . . .
 
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;
 
i) Clerks, deputy clerks, violations clerks and all persons employed by or regularly assigned to a municipal court.

 Plaintiffs describe their challenges to the Rule in five counts, which may be summarized as follows:

 
First Count : The Rule violates court employees' First Amendment rights to free speech and association.
 
Second Count : The Rule creates a "chilling effect" on court employees' exercise of their First Amendment rights.
 
Third Count : The Rule is unconstitutionally vague.
 
Fourth Count : The Rule is unconstitutionally overbroad.
 
Fifth Count : The Rule fails to utilize the "least drastic means for achieving its purported purpose," i.e., the regulation of speech and association.

 The plaintiffs assert that the Rule is unconstitutional both as applied to each of them and on its face. They seek declaratory, injunctive and compensatory relief, as well as an award of attorney's fees and costs. Defendants are William Lanzaro, the Sheriff of Monmouth County and Ms. Randolph's employer; Robert Lipscher, the Administrative Director of the Courts of the State of New Jersey; and the Justices of the Supreme Court of the State of New Jersey.

 On February 6, 1986, we signed an Order to Show Cause With Temporary Restraints, and on May 6, 1986, we signed an Order Granting Preliminary Injunction, to which defendants did not object. The effect of these orders was to preserve plaintiffs' employment status during this litigation. Ms. Randolph is currently on unpaid leave of absence, and Ms. Menke is presently employed as a clerk-typist, a position not within the scope of the Rule. Presently before the court is the motion of defendants Lipscher and the Justices of the Supreme Court of the State of New Jersey to dismiss the complaint. *fn2" They argue that this court does not have subject matter jurisdiction over this action, which they argue seeks nothing less than appellate review of decisions of the New Jersey Supreme Court. They further argue that the claims of plaintiffs, to the extent that they are within this court's jurisdiction, are barred by the doctrine of res judicata.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 The facts which gave rise to New Jersey Supreme Court's decisions, and subsequently to the present action, are essentially undisputed. We address them only to the extent that they are relevant to the present motion.

 Randolph was hired by defendant Lanzaro in January 1983. *fn3" Her position, whether described as that of "court attendant" or "court aide," involves "the performance of nonsecurity tasks related to the conduct of courtroom business" in the Monmouth County Court House in Freehold, New Jersey. In the Matter of Randolph, 101 N.J. 425, 428, 502 A.2d 533 (1986), cert. denied 476 U.S. 1163, 106 S. Ct. 2289, 90 L. Ed. 2d 730, 54 U.S.L.W. 3794 (1986) ["IMO Randolph "]. Randolph submitted a list of her public activities for review pursuant to the Rule. The list revealed that Randolph was a member of five organizations with formal ties to a non-judicial branch of state or local government: the Monmouth County Mental Health Board, the Freehold Borough Municipal Youth Guidance Council, the Freehold Borough Citizens Participation Committee for HUD, the Freehold Borough Citizens Advisory Council, and the Freehold Borough Board of Assessment. It also revealed that she was an officer of two non-governmental public interest organizations -- she was a member of the executive committee of the Greater Red Bank Chapter of the NAACP, and Second Vice-President of the United Progressive Homeowners and Taxpayers Association.

 By a letter dated March 31, 1983, the New Jersey Administrative Office of the Courts informed Randolph that she could not, consistent with the Rule, continue to serve in the governmental organizations, and that she could not serve as an officer in the two private organizations. On May 6, 1983, the Assignment Judge of Monmouth County entered an Order reflecting this interpretation of the Rule. On May 30, 1983, defendant Lanzaro petitioned the New Jersey Supreme Court for review of the Order. The New Jersey Supreme Court granted the petition on June 16, 1983. 94 N.J. 549, 468 A.2d 197 (1983). A judge of the Superior Court of Monmouth County conducted a factual hearing into the nature of Randolph's activities as a member of the above-listed organizations.

 The Superior Court judge submitted to the New Jersey Supreme Court findings of fact to which Randolph filed no substantive exceptions. The New Jersey Supreme Court accepted briefs on behalf of Randolph, Sheriff Lanzaro, the Judiciary, and the NAACP, as amicus curiae, and heard oral argument. In the brief submitted on behalf of Randolph by her present counsel, the court was urged to interpret the rule narrowly, or to refashion it so as to make it less restrictive. The arguments were couched in both discretionary and constitutional terms, and the First Amendment arguments before this court were prominent.

 The New Jersey Supreme Court issued a per curiam decision affirming the decision of the Assignment Judge of Monmouth County. The comprehensive opinion for the majority of the court weighed Randolph's First Amendment arguments against the particular -- even peculiar -- need of the New Jersey court system to insulate itself from the incidence or appearance of political influence. IMO Randolph, 101 N.J. at 430-31, citing Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The majority concluded that the proper result of the balancing was that Randolph could continue none of her listed activities while acting as a uniformed aide in the New Jersey court system. It reached this conclusion through,

 
adhering to the time-tested commitment of our judicial system to an integrity so austere that not only judges but "others officially associated with the 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." (Chief Justice Hughes in In re Gaulkin, supra, 69 N.J. [185] at 189 [(1976)] (emphasis supplied)).

 101 N.J. at 455.

 The New Jersey Supreme Court produced two minority opinions as well, with one justice concurring in part and dissenting in part, and two justices dissenting. The minority opinions, like the majority, undertook to apply the balancing test of Pickering v. Board of Education, supra and Connick v. Myers, supra to the task of weighing Randolph's federal constitutional rights to free speech and association against the judiciary's interest in independence and the appearance of integrity and impartiality. *fn4"

 The facts surrounding the New Jersey Supreme Court's decision regarding Menke's employment may be stated tersely. Upon her appointment to the position of Deputy Court Clerk of the Municipal Court of Lavallette, an inquiry was apparently addressed to the Assignment Judge of Ocean County regarding Menke's compliance with the Rule. The record of the present action does not reveal how or by whom this "inquiry" was made, or what its substance was. It appears, however, that the Assignment Judge forwarded the inquiry to the Administrative Office of the Courts for consideration. Menke submitted two letters to the Administrative Office of the Courts or the New Jersey Supreme Court in which she described her public activities. On February 5, 1986, defendant Lipscher notified Menke that the New Jersey Supreme Court had decided that she could not, consistent with the Rule, serve as a Deputy Clerk and as "an officer of, executive of, or spokesperson for" the Save Our Oceans Committee of Lavallette. See Appendix to Defendants' Brief in Support of their Motion to Dismiss, p. 122a. Although Menke requested the opportunity to appear before the New Jersey Supreme Court prior to its decision, or to know the materials upon which it would base its decision, she was permitted to do neither. See, generally, Defendant's Appendix pp. 122a-131a.

 We now address defendants' motion.

 II. JURISDICTION

 Defendants argue that the present action is an attempt to invoke the jurisdiction of this court for the purpose of securing appellate review of final decisions of the New Jersey Supreme Court. They argue that we may not exercise such jurisdiction, as jurisdiction to review a final decision of a state's highest court is reserved for the United States Supreme Court. They conclude that the present action, to the extent it seeks review of the Rule as applied, must be dismissed for lack of subject matter jurisdiction.

 Defendants accurately characterize the limits of this court's subject matter jurisdiction. It is well settled that "lower federal courts possess no power whatever to sit in direct review of state court decisions." Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296, 26 L. Ed. 2d 234, 90 S. Ct. 1739 (1970); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 68 L. Ed. 362, 44 S. Ct. 149 (1923). Federal jurisdiction to review state court decisions is reserved, by the terms of 28 U.S.C. § 1257, for the United States Supreme Court. Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1142 (2d Cir. 1986); Thomas v. Kadish, 748 F.2d 276, 277 (5th Cir. 1984) cert. denied 473 U.S. 907, 105 S. Ct. 3531, 87 L. Ed. 2d 655 (1985); Schwartz v. Judicial Retirement System of New Jersey, 584 F. Supp. 711, 715 (D.N.J. 1984).

 Plaintiffs respond by arguing that they are not seeking appellate review of an adjudication by the New Jersey Supreme Court, and that their constitutional challenge to the Rule, both on its face and as applied is therefore within this court's original jurisdiction. They argue that the New Jersey Supreme Court did not act, with respect to Menke or Randolph, in a judicial capacity, but rather in a rule-making or ministerial capacity, and ...


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