N.J. Constitutional Convention: Vol. 4, Page 191

Wednesday, July 2, 1947 (Morning session)

MRS. MILLER: We didn't ask about the rule-making power.

MR. HARRIS: I assume the high court should have all rule-making power.

MR. BROGAN: How far would that go - just as to practice?

MR. HARRIS: Just practice.

MR. BROGAN: But would it mean that there would be any supervision at all in the Legislature, or would it be entrusted entirely to the court?

MR. HARRIS: With respect to procedural matters, all procedural matters, I think, should be entrusted to the court. I wouldn't include evidence. As far as I know, the court has never made any attempt to change rules of evidence.

MR. DIXON: If there was no framework whatever within which these rules had to be made, wouldn't it be possible for the Supreme Court to so make rules that it would entirely alter the intention of the writers of this Judicial Article?

MR. HARRIS: Doesn't it say "not inconsistent with the provisions of this article," in the rule-making power?

MR. DIXON: I am asking how much of a framework. We've got to develop a framework within which those rules should be made.

MR. HARRIS: Of course, you are speaking about construction.

VICE-CHAIRMAN: Of course, any rule-making power would be subject to the provisions of the Constitution, and I think we all have to have faith that the court is going to observe the Constitution.

MR. HARRIS: Section II, paragraph 3, reads: "The Supreme Court shall make rules governing the administration of all of the courts in this State. It shall have power, also, to make rules as to pleading, practice and evidence." Strike that out as far as I am concerned.

VICE-CHAIRMAN: As a matter of basic philosophy, your point is that the rule-making power should be completely in the court, divesting the Legislature of any power over practice and procedure. That seems contrary to history, and it may seem a departure from our doctrine of separation of powers. It may be sound; I am not questioning that.

MR. HARRIS: Why a departure from the powers?

VICE-CHAIRMAN: In our Federal Government we have the rule-making power in the Supreme Court, but only by virtue of the fact that Congress has given it to the Supreme Court. It was quite a struggle, if you look back in the history, as to whether the legislature should divest itself of that power, but it did and it has worked well - I think exceedingly well. But, bear in mind that tomorrow Congress still has dominion over those rules.

Now, in our own State some of our greatest advances in practice

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