N.J. Constitutional Convention: Vol. 4, Page 195

Wednesday, July 2, 1947 (Morning session)

is the court which would pass on it. As has been done in the past where the Supreme Court is to determine the constitutionality of an act and there is to be no delay about it, all the members of the Supreme Court sit together en banc, and then having decided the case it is not subject to any review because there could not be any quorum in the New Jersey Court of Errors and Appeals because there would be only six judges left and the Chancellor, which would be seven. So when you have that review, you have it, as I say, by the Supreme Court judges.

Now, suppose there are three of them who are not going to sit or must be left out. Suppose they couldn't sit in the Supreme Court; you would then have six lay judges on the Court of Errors and Appels and three Supreme Court Justices and possibly the Chancellor sitting in the Court of Errors and Appeals, and they would review the Supreme Court's ruling on the Constitution. Whereas if you had the present Supreme Court, being the court now to determine such a question, and have them be the court which would in the future be the appellate court, you would have a continuity there which would present no difficulty.

MR. BROGAN: You say you see no problem with respect to the so-called six lay members?

JUDGE SMITH: No. What I was going to suggest was that the six lay members, and I see no reason why you couldn't take the Circuit Court judges, of which there are 14 - there are only 12 right now - you could take the Circuit Court judges and the lay judges of the Court of Errors and Appeals who are lawyers, and that would be 5, and you have 14 and 5 - that would be 19; you would have 4 or 5 out for your Appellate Division and the balance could be distributed over the State. Now, I think with that setup you wouldn't have a new judge to appoint or to man your courts, and you wouldn't need any more until after you got going. In a year or so, if you found you needed more judges, all right, but there is no more expense, no more judges, or anything to it.

Governor Driscoll down in Camden said there wasn't any kick about the personnel of the court. He said it was what they were dealing with, and he said what we wanted to give them was a better set-up to work with. If that is the case, you've got these judges who can do it.

There would be about ten counties that ought to have a judge assigned to them. In some of the cases those judges could be assigned to one or two other counties where they were small counties.

Now, I think there is a good deal to be said about the Supreme Court judges trying the Supreme Court issues. Don't you think there is a demand by people who don't want to go, or say, be

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