N.J. Constitutional Convention: Vol. 4, Page 192

Wednesday, July 2, 1947 (Morning session)

have come from legislative acts as distinguished from judicial rule-making power. Our Practice Act of 1912 was a statutory act. I know that rule-making power in the court works very well now. I am not so sure, though, that I want the Constitution to say that the Legislature shall have no voice in this at all, so that in the event we had a court which refused to make any advances in its exercise of the rule-making power, the hands of the Legislature would be tied and it would have to stand by -

MR. HARRIS: Well, this Constitution, if adopted in something like this form where you have the streamlining of the business end from the Chief Justice down - all rules would be consistent with the Constitution. And who is better able to say how this should be done than the man who is charged with the responsibility of making it run?

VICE-CHAIRMAN: I think the court is the best place to vest it, but on the other hand the court is not accountable to the people, like the Legislature is, and the people are interested in knowing that the rules of practice are modernized. There again, if you look back at history, advances in rules of practice have come from pressure of the people - not so much from lawyers as they have from the public generally. Although, as I say, the court is best equipped to promulgate the rules, it is doing it with knowledge of the fact that the Legislature has the ultimate power.

MR. McMURRAY: Under the Dean's suggestion, do I understand that the Supreme Court would have the right to make its own rules in consonance with the Constitution, but they, of course, would be the judge of whether or not their rules were in consonance with the Constitution?

VICE-CHAIRMAN: The court still would have the ultimate determination as to whether the rules as promulgated by the Legislature were within the Constitution.

MR. DIXON: The thing I have in mind is this - if you give complete rule-making power to the court, we all, it is pretty generally agreed or stated, should do away with or change prerogative writs from the present situation. Now, then, if we gave the complete rule-making power to the court, would they still have power to go ahead regardless of what we might intend to do, and put back all the prerogative writs in just the shape they are now?

MR. HARRIS: That is why I say you must have expressed in the Constitution the prohibition of writs, or substitution of one for three, or whatever the number.

MR. SOMMER: Dean, you would simply have a single extraordinary writ?


MR. SOMMER: And grant under that single writ -

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