(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 17, 1996 -- Decided October 10, 1996
PER CURIAM
This case concerns whether a sitting municipal court judge may appear on television to comment on
cases pending in other jurisdictions.
Evan W. Broadbelt has been a municipal court judge since 1982. He serves five municipalities in
Monmouth and Ocean counties. A well-respected municipal judge, Judge Broadbelt appeared on "Court TV"
in excess of fifty times since 1992, serving as a guest commentator. Since November 1994, Judge Broadbelt also
appeared on CNBC three times to discuss the O.J. Simpson trial. He also appeared on a local television
program to discuss generally the jurisdiction and procedures of the municipal courts. Judge Broadbelt was not
compensated for any of those television appearances.
In December 1994, Monmouth County Assignment Judge Lawrence Lawson requested that all
Monmouth County municipal court judges notify him before making any television appearances. After twice
giving Judge Broadbelt permission to appear on "Geraldo Live," Judge Lawson withdrew his permission and
requested that Judge Broadbelt refrain from appearing on television. After Judge Broadbelt noted his
disagreement with that decision, Judge Lawson referred the matter to the Supreme Court's Advisory Committee
on Extrajudicial Activities (ACEA). After considering the matter, the ACEA issued Opinion No. 13-95, which
determined that Judge Broadbelt's activities did not conform to Canon 2B of the Code of Judicial Conduct and
the ACEA's implementing Guideline (IV.C.1).
Judge Broadbelt petitioned the Court for review of the ACEA's decision. The Court granted the
petition for review.
HELD: Television appearances by a municipal court judge as a commentator on pending cases in other
jurisdictions violates Canons 3A(8) and 2B of the Code of Judicial Conduct.
1. Canon 3A(8) prohibits judges from commenting on pending cases in any jurisdictions. Judge Broadbelt's
comments violated that Canon, which is clear and unambiguous. The judge's comments had the potential to
compromise the integrity of the judiciary in New Jersey. The ACEA is directed to modify its Guideline III.A.5.a
to conform to the language of the Canon. (pp. 4-11)
2. Judge Broadbelt's regular appearances on commercial television violated Canon 2B, which forbids a judge
from "lend[ing] the prestige of office to advance the private interests of others***." Although not every television
appearance will be improper, or will create the appearance of impropriety, exceptional caution and discretion
are necessary on the part of judges who are invited to participate in television work. The Court looks to the
ACEA to help formulate standards that will govern such appearances in the future. (pp. 12-17)
3. Although Judge Broadbelt's conduct could be viewed as authorized by Canon IV of the Code (a judge "may
engage in activities to improve the law, the legal system, and the administration of justice"), conduct that is
violative of another canon is not excused because it appears to be authorized by Canon 4. (pp. 18-19)
4. The restrictions placed on Judge Broadbelt's speech do not violate the First Amendment because the
regulation of that speech furthers a substantial governmental interest (unrelated to the suppression of expression)
and is no more restrictive than necessary. The preservation of the independence and integrity of the
judiciary -- the interests underlying Canons 3A(8) and 2B are obviously interests of sufficient magnitude to
sustain those canons. (pp. 19-24)
As MODIFIED, the opinion of the Advisory Committee on Extrajudicial Activities is AFFIRMED.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in the
opinion of the Court.
SUPREME COURT OF NEW JERSEY
A-
71 September Term 1995
IN RE: THE INQUIRY OF EVAN W.
BROADBELT, J.M.C.
Argued January 17, 1996 -- Decided October 10, 1996
On review of an opinion of the Advisory Committee on
Extrajudicial Activities.
Francis X. Crahay argued the cause for appellant, Evan
W. Broadbelt, J.M.C. (Tompkins, McGuire & Wachenfeld,
attorneys; Evan W. Broadbelt, J.M.C., pro se, on the
briefs).
Michael J. Haas, Senior Deputy Attorney General, argued
the cause for respondent, Advisory Committee on
Extrajudicial Activities (Deborah T. Poritz, Attorney
General of New Jersey, attorney; Joseph L. Yannotti,
Assistant Attorney General, of counsel).
Floyd Abrams, a member of the New York bar, argued the
cause for amicus curiae, Courtroom Television Network
(Robert S. Steinbaum, attorney).
PER CURIAM
This appeal concerns whether a sitting municipal court judge
may appear on television to comment on cases pending in other
jurisdictions. After the matter was referred to the Advisory
Committee on Extrajudicial Activities, the Committee issued
Opinion No. 13-95, which disapproved of Judge Broadbelt's
appearances on "Court TV" and "Geraldo Live" as a commentator.
We granted review,
142 N.J. 443 (1995).
The facts are undisputed. Petitioner, Evan W. Broadbelt,
has been a municipal court judge since 1982 and serves five
municipalities in Monmouth and Ocean counties. A well-respected
municipal judge, Judge Broadbelt appeared on "Court TV" in excess
of fifty times since 1992 to serve as a guest commentator. Since
November 1994, Judge Broadbelt appeared on CNBC on three
occasions to provide guest commentary on the "O.J. Simpson case,"
People v. Simpson, No. BA097211 (Cal. Super. Ct. 1995). He also
appeared on a local television program in 1994 to discuss
generally the jurisdiction and procedures of the municipal
courts. Judge Broadbelt did not receive compensation for any of
those television appearances.
In December 1994, Judge Lawrence M. Lawson, A.J.S.C.,
requested that all municipal court judges notify the Assignment
Judge before making any television appearances. After twice
giving Judge Broadbelt permission to appear on "Geraldo Live,"
Judge Lawson, on March 20, 1995, withdrew his approval and
requested that Judge Broadbelt refrain from appearing on
television. After Judge Broadbelt noted his disagreement with
Judge Lawson's decision, Judge Lawson referred the issue to the
Advisory Committee on Extrajudicial Activities (Committee). That
Committee, which is appointed by this Court, accepts inquiries
about extrajudicial activities from a judge or this Court. R.
1:18A -1, -2. After an oral decision, the Committee issued
Opinion No. 13-95, pursuant to Rule 1:18A-4, and determined that
Judge Broadbelt's activities did not conform with Canon 2 of the
Code of Judicial Conduct (Code) and Guideline IV.C.1. of the
Guidelines for Extrajudicial Activities for New Jersey Judges.
The Code consists of seven canons that provide guidance to
judges on the manner in which they are to conduct themselves.
The canons are intended to maintain the integrity of the
judiciary and to foster public confidence in the integrity of the
judiciary. In re Seaman,
133 N.J. 67, 96 (1993); see Pressler,
Current N.J. Court Rules, comment on Code of Judicial Conduct,
Canons 1 and 2 (1996). Although we conclude that Judge
Broadbelt's conduct violated Canons 3A(8) and 2B, we note that we
have not previously addressed the issues presented by this appeal
and that adequate guidance concerning appearances by judges on
television may not previously have been available.
Although not the focus of the Committee's determination, we first consider whether Judge Broadbelt's commentary violated Canon 3A(8). Canon 3 provides that judges "should perform the duties of judicial office impartially and diligently." Extrajudicial duties should not encroach on or conflict with
those duties. Report of Supreme Court Committee on Extrajudicial
Activities,
117 N.J.L.J. 367, 367 (Mar. 20, 1986)(Report). Canon
3A(8) of the CodeSee footnote 1 provides:
A judge should abstain from public comment about a
pending or impending proceeding in any court and
should require similar abstention on the part of
court personnel subject to the judge's direction
and control. This subsection does not prohibit
judges from making public statements in the course
of their official duties or from explaining for
public information the procedures of the court.
Judge Broadbelt argues that Canon 3(A) does not govern his
televised legal commentary about pending cases because his
conduct was extrajudicial in nature, and not a "duty of office"
subject to the strictures of Canon 3. Additionally, petitioner
and amicus both urge this Court to apply Guideline III.A.5.a
(which prohibits only comment on cases pending in New Jersey
courts), contending that under that Guideline the conduct is
permissible. Amicus asks this Court to adopt a special test,
pursuant to which a judge would be prohibited from commenting on
a pending case only if there is a showing of harm to the judicial
system.
The Committee argues that Judge Broadbelt's conduct,
although extrajudicial, is governed by Canon 3A(8). Moreover,
the Committee argues that although the Canon and the Guideline
conflict, the Canon should control.
We find unpersuasive the judge's argument that the Canon
does not apply because the judge's conduct is extrajudicial in
nature. Canon 3A(8) specifically states that "[t]his subsection
does not prohibit judges from making public statements in the
course of their official duties. . . ." That language suggests
that the Canon applies both to public statements made in the
course of a judge's official duties and to statements made that
are independent of those duties.
Similarly, we find unpersuasive the judge's argument that
Guideline III.A.5.a governs his conduct in this case. Guideline
III.A.5.a provides:
To preserve the independence and prestige . . .
respect for and confidence in the judicial office,
and to dispel any doubt [about a judge's ability]
to decide impartially any issue pending or likely
to come before the judge, a judge, in speaking,
lecturing or otherwise, shall not:
a. comment on cases or proceedings pending in
New Jersey courts except to explain what the
issues are . . . .
Clearly, the Guideline limits the ban on public comments
regarding pending cases to those public comments relating to
cases pending in New Jersey. That limitation is inconsistent
with the language of Canon 3A(8) that prohibits public comment
regarding cases pending in any court. The phrase "any court" has
been interpreted to refer to any court in any jurisdiction. See
In re Hey ("Hey I"),
425 S.E.2d 221, 222-24 (W. Va. 1992)
(concluding that phrase "any court" includes courts other than
commenting judge's court); N.Y. Adv. Comm. on Judicial Ethics,
Op. 93-133 (1994) (concluding that Canon prohibits judges from
commenting on cases pending in any court, even those outside of
judge's jurisdiction). We note that the Guidelines are not
intended to supplant or modify the Code. Report, supra,
117
N.J.L.J. at 367. Moreover, the canons are to be construed
broadly to vindicate their purpose of maintaining public
confidence in the judicial system. In re Blackman,
124 N.J. 547,
554 (1991).
Canon 3A(8) does not prohibit a judge from making statements
in the course of his official duties. In re Schenck,
870 P.2d 185, 201 (Or.), cert. denied, ___ U.S. ___,
115 S. Ct. 195,
130 L. Ed.2d 127 (1994). A judge may also make comments concerning
court procedure. Disciplinary Counsel v. Souers,
611 N.E.2d 305,
306 (Ohio 1993). A judge is not forbidden from commenting on a
case that is no longer pending. Goldman v. Nevada Comm'n on
Judicial Discipline,
830 P.2d 107, 136-37 (1992); Wenger v.
Commission on Judicial Performance,
630 P.2d 954, 965 (Cal.
1981). The Second Circuit Court of Appeals has ruled that the
Canon is not violated when the judge's comments to the media
about a pending case are a restatement of comments previously
made by the commenting judge in open court. United States v.
Yonkers Bd. of Educ.,
946 F.2d 180, 184-85 (1991).
In In re Sheffield,
465 So.2d 350 (Ala. 1984), the court
observed that although judges are prohibited from commenting
about the merits of a pending case, a general discussion of legal
principles is permitted. Id. at 355. As such, "judges walk a
fine line between the duties and prohibitions of Canon 3A[(8)]."
Ibid. In Papa v. New Haven Fed'n of Teachers,
444 A.2d 196, 208
(Conn. 1982), the court stated that not all public comments made
about a pending case will be improper and result in
disqualification of the judge. Although the Canon clearly
prohibits most forms of public comment about pending cases, the
National Conference of State Trial Judges Committee on News
Reporting and Fair Trial has suggested that
[j]udges should encourage representatives of the news
media [to] inquire of them for background information
relating to the operation of the court system. While
judges may not comment on the merits of a pending case,
a judge may and should explain legal terms, and
concepts, procedures, and the issues involved in the
case so as to permit the news representatives to cover
the case more intelligently. . . . Often there is no
one, other than the judge, who is in a position to give
a detailed and impartial explanation of the case to the
news media.
[Sheffield, supra, 465 So.
2d at 355 (quoting Nat'l
Conf. of State Trial Judges Comm. on News Reporting and
Fair Trial, Judicial Guidelines for Dealing with News
Media Inquiries and Criticism (5th Draft, June 5,
1984)).]
In United States v. Garwood,
16 M.J. 863, 868 (A.C.M.R.
1983), aff'd,
20 M.J. 148 (C.M.A.), cert. denied,
474 U.S. 1005,
106 S. Ct. 524,
88 L. Ed.2d 456 (1985), a trial judge engaged in
press and media interviews on national broadcast networks, the
television program "Nightline," and for the Associated Press. In
those interviews, the judge expressed his opinion about tactical
decisions by the defense, the relevance of certain discovery
items, and his opinion on whether the defendant should take the
stand in a pending case. Ibid. The reviewing court found the
judge's conduct "inexcusable" and concluded that, no matter how
well-motivated, the judge's comments crossed the line between
permissible and impermissible commentary. Id. at 869.
In In re Benoit,
523 A.2d 1381, 1382-83 (Me. 1987), the
court found it inappropriate for a judge, after a case was
remanded, to write a letter to the editor of a local newspaper
defending his original sentences. The court stated that
"citizens, whose legal rights and freedoms were at risk, were
subjected to a public prejudgment of their cases by the very
judge who was assigned to reimpose sentence. We cannot tolerate
such a conspicuous display of judicial bias regarding pending
cases." Id. at 1383 (footnotes omitted).
In Ryan v. Commission on Judicial Performance,
754 P.2d 724
(Cal. 1988), the court ruled that a judge clearly violated the
dictates of Canon 3A(8) in three separate instances. In one, the
judge discussed a draft opinion with the press before notifying
the parties of his ruling. Id. at 738. In another, the judge
made statements to the press concerning a pending contempt order.
Id. at 738-39. Finally, the judge discussed another pending
matter with the press and wrote a letter to the editor of a local
newspaper explaining his sentence in a specific case. Id. at
739. In all three instances, the judge violated the Canon by
commenting on pending cases. Id. at 738-39; see also Shapely v.
Texas Dep't of Human Resources,
581 S.W.2d 250, 253 (Tex. Ct.
App. 1979) (holding that judge violated Canon when he spoke to
reporters about pending case, and that judge "gave public vent to
a bias and prejudice").
The New York Advisory Committee on Judicial Ethics recently
considered an analogous issue. Applying the Canon, the Advisory
Committee disapproved of a full-time judge's appearances on Court
TV to discuss cases pending in courts outside of the state. N.Y.
Adv. Comm. on Jud. Ethics, Op. 93-133 (1994). The Committee
stated:
Comments and observations made in that regard
could prove troublesome, especially in view of
their immediacy in relation to the events being
discussed. These comments and observations are
being made solely in the context of and with
special reference to an ongoing litigation, the
trial of which (or a portion [thereof]) has been
telecast that day. Remarks by the judge could
thus be seen as lending a judicial imprimatur to
legal positions being advanced by one of the
parties in an existing legal action, which legal
positions may not have yet been ultimately
determined. Such remarks would constitute public
comment about a pending matter and, therefore, are
not permitted . . . .
The New Jersey Advisory Committee on Extrajudicial Activities has recommended that to avoid conduct in violation of Canon 3A(8) judges should not participate in seminars or symposia if the principal subject is a pending case, because "the give and take [of the discussion] might expose the judge to the hazard of . . . commenting on the issues [in the pending case], no matter how hard the judge tried to avoid the pitfalls." Adv. Comm. on Judicial Ethics, Op. 1-89 (1989); Adv. Comm. on Judicial Ethics, Op. 3-88 (1988). The Advisory Committee also recommended that a judge should decline an invitation to participate in a law school seminar on post-conviction issues in death penalty cases when the subject matter of the seminar is a pending capital case over
which the judge presided. Adv. Comm. on Judicial Ethics, Op. 2-88 (1988).
The purpose of this Canon is to protect the integrity of the
judiciary. See Benoit, supra, 523 A.
2d at 1383. In Benoit,
supra, the court stated that the Canon
prevents a judge from publicly prejudging or
creating the appearance that he is prejudging any
aspect of an issue that has not been finally
decided. It thereby minimizes the risk that such
comments will either unfairly prejudge
individuals' rights or create a public impression
that citizens are not being treated fairly because
different judges may not agree as to how those
citizens' rights should be decided under the law.
We find the Canon to be clear and unambiguous: a judge should not comment on pending cases in any jurisdiction. By prohibiting judges from commenting on pending cases in any court, we avoid the possibility of undue influence on the judicial process and the threat to public confidence posed by a judge from one jurisdiction criticizing the rulings or technique of a judge from a different jurisdiction. William G. Ross, Extrajudicial Speech: Charting the Boundaries of Propriety, 2 Geo. J. Legal Ethics 589, 598 (1989); see also David M. Rothman, California Judicial Conduct Handbook 1-39 (1990) (observing that judges should not comment on cases pending in courts outside of their jurisdictions because (1) such comments could affect outcome, (2) comments could appear to exert pressure on judge to decide a certain way, and (3) such comments could undermine public confidence in judicial decisions).
We conclude that Judge Broadbelt should not have commented
on pending cases from any jurisdiction. Moreover, we are
persuaded that Judge Broadbelt's commentary on pending cases on
"Court TV" and on "Geraldo Live" was inappropriate and had the
potential to compromise the integrity of the judiciary in New
Jersey. We direct the Advisory Committee to modify Guideline
III.A.5.a to conform with Canon 3A(8).
We also determine whether Judge Broadbelt's conduct violated
Canon 2B. Canon 2 states that a judge "should avoid impropriety
and the appearance of impropriety in all activities." Canon 2B
forbids a judge from "lend[ing] the prestige of office to advance
the private interests of others . . . ."See footnote 2 The Commentary to
Canon 2B states:
Public confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. A
judge must avoid all impropriety and appearance of
impropriety and must expect to be the subject of
constant public scrutiny. A judge must therefore
accept restrictions on personal conduct that might
be viewed as burdensome by the ordinary citizen
and should do so freely and willingly.
Judge Broadbelt argues that his appearance on commercial
television programs to discuss pending cases is neither governed
by nor violative of Canon 2B. The Advisory Committee insists
that the judge's conduct violated Canon 2B because his regular
television appearances allowed the prestige of his judicial
office to advance the private interests of commercial television.
Our case law does not address this issue directly. None of
our decisions concerning Canon 2 relate to a judge's appearance
on a commercial television program. In In re Santini,
126 N.J. 291 (1991), we found that a municipal court judge violated Canon
2 and Rule 1:15-1(b) when he telephoned another municipal court
judge concerning his client's arrest on a warrant for failure to
appear at a zoning hearing. Id. at 293-95. We noted that a
judge must not use his office to advance the private interest of
others, nor should he convey or permit others to convey the
impression that he is in a special position to exert influence.
Id. at 295-96 (citing In re Murray,
92 N.J. 567, 570 (1983)); see
also In re Anastasi,
76 N.J. 510, 514 (1978) (holding that judge
should not be voluntary character witness for friend applying for
racing license because to do so lends prestige of judicial office
to advance private interest of another).
Similarly, in In re Blackman, supra,
124 N.J. 547, we found
that a judge's attendance at a picnic hosted by a convicted felon
violated Canon 2. We reiterated that judges are in a unique
position, and "must accept restrictions of their personal
activities that other citizens might find burdensome and
intrusive." Id. at 551. Because judges are the "subject of
constant public scrutiny," ibid., they must be diligent to ensure
that their conduct does not create the appearance of impropriety.
In its initial report, the Advisory Committee on
Extrajudicial Activities emphasized the importance of preserving
the integrity of the judiciary. Report, supra,
117 N.J.L.J. at
367. The Committee stated:
In a free and democratic society, the independence
and integrity of the judiciary are essential. The
public expects judges to be honest, competent and
devoted to the fair and impartial administration
of justice. Any deviation from these high
standards or any perception on the part of the
public that judges are deficient in any of these
qualities will inevitably result in a loss of
confidence in the judiciary and seriously impair
its effectiveness.
That Committee also addressed the issue of judges writing for commercial, law-related publications, and promulgated Guideline III.C concerning the circumstances under which a judge could write for a commercial publication. Most notably, judges writing for commercial publications may not receive any compensation for their work. The Committee noted:
Writing differs from teaching and other forms of oral presentation in the degree of permanence of the record, the relative non-exclusivity of the body of readers and the opportunity for review and revision of the finished work. The need to avoid the appearance of prejudgment becomes more acute in the case of writing. A judge who has criticized the state of law or expressed a view on what the law ought to be in a published article or treatise may later, while on the bench, hear those views quoted by counsel during argument on the
same issue. It would be difficult for opposing
counsel or litigants to become convinced that the
judge would respond affirmatively to a contrary
argument.
In 1961, the ABA issued an opinion barring judges from appearing on commercial television programs that simulate or recreate judicial proceedings on the ground that such appearances are prohibited by Canon 2B. ABA Comm. on Professional Ethics, Formal Op. 298 (1961). The opinion also stated, however, that it did not consider whether other programs such as panel discussions or interviews would be improper. Ibid. In the same year, the Association approved of a judge's appearance on "Meet the Press" because it was "distinctly . . . a public service type [of show]" similar to a news report dealing with matters of general public interest. ABA Comm. on Professional Ethics, Informal Op. C-230(g) (1961). Moreover, the Committee stated that "the nature of the program and the nature of the appearance of the lawyer or judge on it is the important thing and whether or not it is commercially sponsored is secondary." Ibid.
In Opinion No. 14-1991, the South Carolina Advisory Committee on Standards of Judicial Conduct addressed an analogous question. The Committee decided that Canon 2 prohibited a judge from answering questions on a radio talk show. S.C. Adv. Comm. on Standards of Judicial Conduct, Op. 14-1991 (1991). The Committee stated that "[i]n associating himself with the question and answer Radio Talk Show on a regular basis, the judge would clearly lend the prestige of his office to the advancement of the
radio station, in an area where the public perceives him to be an
expert." Ibid. Furthermore, the Committee added that "[t]he
spontaneous interchange between the judge and the call in
listener could well affect the dignity of the judge, his office
and interfere with his performance of his judicial office, as
well as, having [a] negative impact on the dignity of other
members of the judiciary and the effectiveness of their
performance of their judicial duties." Ibid. The South Carolina
Committee focused on the nature and effect of the judge's
conduct, and not merely on whether the show was commercial or
non-commercial.
The purpose of Canon 2B is to protect the independence and
integrity of the judiciary. That a judge may not lend the
prestige of judicial office to advance the private interests of
others is well settled. However, the question whether a judge
lends the prestige of office to a television program merely by
appearing on that program is more difficult to answer. A number
of factors must be taken into account: the frequency with which
the judge appears on the program, the intended audience, the
subject matter, and whether the program is commercial or non-commercial. In general, a judge should avoid appearing on either
commercial or non-commercial programs when the judge's
association with that program compromises the independence and
integrity of the judiciary.
In the instant case, Judge Broadbelt's regular appearances
on commercial television violated Canon 2B. Because of the
frequency of Judge Broadbelt's appearances, Judge Broadbelt
became regularly identified with the program, thereby lending it
the prestige of his judicial office.
Not every television appearance by a judge on commercial
television will be improper, or will create the appearance of
impropriety. For example, it might be permissible for a
municipal court judge to make an isolated appearance on public
television to comment on the role of municipal court judges in
the judiciary. Similarly, a one-time appearance by a Superior
Court judge on a commercial television program dealing with the
benefits and disadvantages of televising civil trials might be
permissible. However, a judge's regular weekly appearance on a
television program, whether the program was commercial or non-commercial, to comment on recent court decisions in New Jersey
clearly would be improper.
Because our experience is evolving, we need not now attempt
to prescribe precise limits for judicial appearances on
television programs. We note only that exceptional caution and
discretion are essential. We anticipate that the Advisory
Committee on Extrajudicial Activities will perform a vital role
in formulating standards to govern all such appearances in the
future.
The final Canon involved in this case is Canon 4. Canon 4
states that a judge "may engage in activities to improve the law,
the legal system, and the administration of justice." It further
provides:
A judge, subject to the proper performance of
judicial duties, may engage in the following
quasi-judicial activities if in doing so the judge
does not cast doubt on the judge's capacity to
decide impartially any issue that may come before
the court and provided the judge is not
compensated therefor:
A. A judge may speak, write, lecture, and
participate in other activities
concerning the law, the legal system,
and the administration of justice.
B. A judge may teach concerning the law,
the legal system, and the administration
of justice.
[Code of Judicial Conduct, Canon 4.]
Petitioner insists that his conduct is governed and
permitted by Canon 4 because it is extrajudicial in nature and
constitutes teaching about the judicial system. The Committee
argues that the judge's conduct is not subject to review solely
under Canon 4 because it is extrajudicial in nature; rather, the
conduct is to be examined under each of the canons to determine
its propriety.
Canon 4 does not excuse the violations of other canons.
Schenck, supra, 870 P.
2d at 202; In re Miller,
644 So.2d 75, 78
(Fla. 1994). In Opinion 93-133, supra, the New York Advisory
Committee on Judicial Ethics concluded that although a judge's
comments concerning a pending case may be of educational value
under Canon 4, because the comments violate another canon they
are not permitted. See also Adv. Comm. on Judicial Ethics, Op.
3-88, supra (concluding that judge's comments about pending case,
which are barred by Canon 3A(8), are not excused because they
could be of some assistance to court under Canon 4).
We have no doubt that Petitioner Broadbelt's commentary was
informative and educational. Nevertheless, conduct that is
violative of another canon is not excused because it appears to
be authorized by Canon 4. Although Petitioner's conduct may have
included teaching about the law, the legal system, and the
administration of justice, that conduct is not permitted if it
violates another canon. Accordingly, because Petitioner's
conduct violated Canons 3A(8) and 2B, Canon 4 does not excuse it.
Finally, we address the constitutional question whether placing restrictions on a judge's speech violates the First Amendment. A judge does not relinquish his or her First Amendment rights on ascending to the bench. In re Rome, 542 P.2d 676, 684 (Kan. 1975); William G. Ross, Extrajudicial Speech: Charting the Boundaries of Propriety, 2 Geo. J. Legal Ethics, 589, 594 (1989). However, limitations may be placed on a judge's First Amendment rights. See Halleck v. Berliner, 427 F. Supp. 1225, 1239 (D.D.C. 1977); see also Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990) (observing that "state may restrict the
speech of elected judges in ways that it may not restrict the
speech of other elected officials"); In re Hey, ("Hey II"),
452 S.E.2d 24, 30 (W. Va. 1994) (same). In analyzing a judge's
right to speak freely, courts have employed different
constitutional standards: the Pickering public-employee
balancing test, the strict-scrutiny test, and the hybrid
Pickering/strict-scrutiny test. In addition, commentators have
advocated that courts apply the Gentile middle-tier scrutiny
standard to regulate judicial speech. Erwin Chemerinsky, Is it
the Siren's Call?: Judges and Free Speech While Cases are
Pending,
28 Loy. L.A. L. Rev. 831, 842 (1995).
In Pickering, the Court observed that although public
employees do not shed their constitutional protections on
entering the workplace, a public employee's free speech may be
limited. Pickering v. Board of Educ.,
391 U.S. 563, 568,
88 S.
Ct. 1731, 1734,
20 L. Ed.2d 811, 817 (1968); see Hey II, supra,
452 S.E.
2d at 30-31; Schenck, supra, 870 P.
2d at 204; Scott,
supra, 910 F.
2d at 210. The Pickering test has two prongs:
first, whether the speech addresses a matter of legitimate public
concern; and second, whether the public employee's right to speak
freely outweighs the public employer's interest in regulating the
speech to promote the efficiency of the public services it
performs. Id. at 568, 88 S. Ct. at 1734-35, 20 L. Ed.
2d at 817.
Some courts have applied the strict-scrutiny test to this
issue. To pass constitutional muster under strict scrutiny,
regulations attempting to restrict a judge's right to speak
freely must be (1) narrowly tailored to serve a compelling
governmental interest; and (2) the least restrictive means
available to achieve that interest. Barone v. Department of
Human Services,
107 N.J. 355, 365 (1987) (citing Graham v.
Richardson,
403 U.S. 365,
91 S. Ct. 1848,
29 L. Ed.2d 534
(1971)).
West Virginia and Florida have applied a hybrid
Pickering/strict-scrutiny test. In Hey II, supra, the West
Virginia Supreme Court found that the compelling needs in
maintaining the integrity of the judiciary justified "unusually
stringent restrictions on judicial expression . . . ." Hey II,
supra, 452 S.E.
2d at 30. Finding that the public
employee/Pickering cases provided an appropriate analogy, ibid,
the court defined the test as a two-part inquiry: (1) whether
the state could accomplish its legitimate interest in restraining
a judge's speech through narrowly-tailored limitations, and (2)
whether the regulation exceeded that which is necessary to
accomplish the state's interests. Id. at 31. Engaging in that
analysis, the court found that Canons 1, 2, and 3, which
restricted a judge's free speech rights, were not violative of
the First Amendment. Ibid.; see also In re Judicial Conduct,
603 So.2d 494, 498 (Fla. 1992) (finding that judge's activity could
be regulated because of special role judges play in society, and
finding that Canons involved compelling state interest and were
narrowly drawn to serve that interest).
We have applied a middle-tier scrutiny test in cases
involving regulation of an attorney's speech about pending cases.
In re Rachmiel,
90 N.J. 646, 654 (1982); In re Hinds,
90 N.J. 604, 614 (1982). In Hinds, we found that a disciplinary rule
forbidding an attorney from commenting on a pending case did not
violate the First Amendment.See footnote 3 We applied a two-prong test, in
which a regulation will be found constitutional if it (1)
"further[s] an important or substantial governmental interest
unrelated to the suppression of expression"; and (2) is no more
restrictive than necessary to protect the governmental interest
involved. Hinds, supra, 90 N.J. at 614; Rachmiel, supra, 90 N.J.
at 654-55.
When presented with a similar issue, the United States
Supreme Court adopted the Hinds middle-tier scrutiny test and
concluded that a state may regulate an attorney's speech if it
creates a "substantial likelihood of materially prejudicing [an
adjudicatory] proceeding." Gentile v. State Bar of Nevada,
501 U.S. 1030, 1075-76,
111 S. Ct. 2720, 2745,
115 L. Ed.2d 923-24
(1991).
Although we believe that the imposition of restrictions on a
judge's free speech rights would probably pass constitutional
muster under any of those standards, we find most appropriate the
Gentile/Hinds standard. Under that standard, the regulation of a
judge's speech will be upheld if it furthers a substantial
governmental interest unrelated to suppression of expression, and
is no more restrictive than necessary. Avoiding material
prejudice to an adjudicatory proceeding is one example of a
governmental interest sufficient to uphold restrictions on a
judge's speech. The preservation of the independence and
integrity of the judiciary and the maintenance of public
confidence in the judiciary -- the interests underlying Canons
3A(8) and 2B -- are obviously interests of sufficient magnitude
to sustain those Canons under the Gentile/Hinds standard, and we
are satisfied that the restrictions on a judge's speech imposed
by those Canons are no greater than necessary. Accordingly, we
uphold the constitutionality of their application to Petitioner.
As modified by this opinion, we affirm Opinion No. 13-95 of
the Advisory Committee on Extrajudicial Activities.
JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in the opinion of the Court.
NO. A-71 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO
On review of an opinion of the Advisory Committee on Extrajudicial
Activities.
IN RE: THE INQUIRY OF EVAN W.
BROADBELT, J.M.C.
DECIDED October 10, 1996
Justice Handler PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1In the Model Code of Judicial Conduct this provision
is contained in Canon 3A(6).
Footnote: 2Guideline IV.C.1, on which the Advisory Committee also
relied in finding that Judge Broadbelt's requested appearances
would be improper, contains language similar to Canon 2B. The
guideline provides: "A judge should avoid lending the prestige
of the office to advance the private interests of others and
should avoid conveying or permitting others to convey the
impression that they are in a special position to influence the
judge."
Footnote: 3The Disciplinary Rule in question provided:
During the selection of a jury or the trial of a
criminal matter, a lawyer or law firm associated
with the prosecution or defense of a criminal
matter shall not make or participate in making an
extrajudicial statement that he expects to be
disseminated by means of public communication and
that relates to the trial, parties, or issues in
the trial or other matters that are reasonably
likely to interfere with a fair trial. . . .