Matter of Randolph

POLLOCK, J.,

concurring in part and dissenting in part.

The majority and dissenting opinions agree that our endeavor is to strike a balance between two crucial, but contending, values: a public employee’s constitutional rights of free speech *458 and association, and this Court’s power to regulate the speech and conduct of employees associated with the judiciary. In striking that balance, the two opinions reach contradictory conclusions. The majority would not permit Mrs. Randolph to engage in any of her requested activities, but the dissent would permit her to engage in all of them.

In reaching opposite results, both the majority and the dissent draw upon the balancing test announced in Pickering v. Board of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), and refined in Connick v. Meyers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983). I agree that the appropriate standard is the Pickering balancing test, but for me the proper balance rests between the polar positions of the majority and dissenting opinions.

Basically, I agree with the majority’s formulation that the Court should recognize the difference between a judicial employee who is intimately involved in decision-making, such as a judge or a law clerk, and a court aide, such as Mrs. Randolph, who is not close to that process. Ante at 446. That difference becomes the mainstay of the dissent, which vigorously contends that a court aide “is not at all like a judge * * Post at 468.

Although court aides are employed by the county sheriff, they work in and around the courtroom. Through the discharge of their duties, court aides create the appearance that they are part of the judge’s official family, an appearance that could lead a member of the public, such as a litigant, a witness, or a juror to conclude that the aides are involved in the decision-making process. Thus, we must be concerned with apparent, as well as actual, improprieties. To this extent, I disagree with the dissent, which suggests that a court aide’s activities could never affect the public impression of judicial independence and impartiality. Post at 470.

A proper balance of interests should take into account that partisan political conduct poses more of a danger to judicial *459 independence than does non-partisan activity. Even non-partisan political conduct, however, can threaten that independence. Moreover, the closer any public office held by a court aide is to the inner-workings of government, the greater is the threat to the independence of the judiciary. As the majority recognizes, “Mppointment to any public office poses a greater likelihood of impermissible judicial involvement in other levels of government and the political process.” Ante at 446.

Accordingly, I agree with the majority that Mrs. Randolph ought not serve on public bodies such as 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. As the Administrative Office of the Courts advised Mrs. Randolph, “they are committees of other branches of government and they also involve a significant likelihood of involvement in political activity.”

I would, however, permit her to continue to serve on the Executive Committee of the Red Bank Chapter of the National Association for the Advancement of Colored People (NAACP) and as second vice-president of the United Progressive Homeowners & Taxpayers Association, Inc. (Homeowners Association). In my judgment, her service on the executive committee of a local chapter of the NAACP does not “pose a realistic likelihood of compromising the independence of the judiciary.” Ante at 447.

Her activities on behalf of the Homeowners Association present a closer case. She is the agent for the service of process on the Association and serves as the Association’s spokesperson. Also, she participated in the early plans for leasing a school building to be used for a pre-school program, and she accompanied the Association’s president when they met with a county official concerning the details for the lease. As troublesome as these activities may be, I find that they do not *460 pose a realistic likelihood of compromising judicial independence.

If she should escalate her activities in the private organizations to the point where those activities constitute such a threat, the Court may properly ask her to choose between continued employment and the private organizations. The dissent recognizes as much. Post at 467. Until then, I would not trench upon Mrs. Randolph’s constitutional freedoms of speech and association by requiring her to resign as an officer of two private organizations.