Gaulkin, Application of

• Decision Date: 28 January 1976
• Citation: 69 N.J. 185,351 A.2d 740
• Parties: Application of Ellen GAULKIN, Petitioner.
• Court: New Jersey Supreme Court

Page 185

69 N.J. 185

351 A.2d 740

Application of Ellen GAULKIN, Petitioner.

Supreme Court of New Jersey.

Argued Nov. 3, 1975.

Decided Jan. 28, 1976.

Samuel M. Koenigsberg, Montclair, for petitioner Ellen gaulkin.

Mary Jean Gallagher, Rumson, and Rosemary Higgins Cass, Bloomfield, for amicus curiae N.J. State Bar Ass'n Everett M. Scherer, Newark, for amicus curiae Advisory Committee on Professional Ethics.

Nadine Taub, Newark, for amici curiae American Civil Liberties Union, American Ass'n of University Women, Nat. Council of Jewish Women, Nat. Organization for Women, Women's Political Caucus, Women's Group of Rutgers Law School, Women's Rights in Tenafly, and Women's Equity Action League (Cynthia Jacob, Trenton, and Nadine Taub, on the brief).

Mary Little Parell, for amicus curiae League of Women Voters of N.J.

The opinion of the Court was delivered by

HUGHES, C.J.

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, 317 A.2d 695 (1974). Through its chairman the Supreme Court's Advisory Committee on Professional Ethics joined in argument for explication of the reasons relevant to the orgin 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, 330 A.2d 350 (1974).

I.

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, 330 A.2d at 353 (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 rpactice. In re Mattera, 34 N.J. 259, 264--65, 168 A.2d 38 (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. ¹ (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.

II.

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 government. ² Neither petitioner nor any Amicus has suggested to the contrary. That question is not issuable in any event, for the Court takes this opportunity to reaffirm in the strongest possible terms its scrupulous adherence to the stern policy of absolute noninvolvement in politics of members of the New Jersey judiciary--a policy adamantly enforced during the years of life of the present court system, largely responsible for the high respect in which that system is held throughout the nation, See K. W. Smith, The Politics of Judicial Reform in New Jersey, 200--01, 214--15 (University Microfilms, Inc. 1973), and therefore necessary for meticulous preservation in every respect. As once pointed out by Chief Justice Weintraub, this attitude implies no disrespect to the political process as such nor the involvement therein of political parties, but is merely conducive to separation therefrom of the judiciary. See In re Pagliughi, 39 N.J. 517, 523, 189 A.2d 218 (1963).

Historically, the stringent scope of the Court's policy as conceived in 1948 appears to have been a necessity of the times. It was chronologically identified with the American Bar Association Canons of Judicial Ethics, which were adopted by the first Supreme Court under the new court system by R.1:7--6 (1948). But it was particularly needful in New Jersey at that time. That prophylactic policy followed an era during which it was not considered unethical for a judge of courts existing under our 1844 Constitution to participate rather directly in the political process, at least to the extent of making campaign speeches and contributions. And while most of those judges were unconnected with such activities, indeed probably were unknowing of them given the random nature of involvement of the few who were so politically inclined, nevertheless the atmosphere accommodated by that casual and permissive tie with politics was not conducive to a totally independent judiciary. 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.

III.

But the years which demonstrated the wisdom of this basic policy have also wrought other changes bearing upon the question now directly before us, namely, whether and to what extent the proscription of all political activity on the part of a judge should extend to the non-judicial spouse.

We focus first upon the trend of modern law which reflects society's realistic appreciation of the independence of both spouses in marriage and more specifically represents modern awareness and sensitivity to individual freedoms, rights, responsibilities and development. A married woman in New...