N.J. Constitutional Convention: Vol. 4, Page 207

Thursday, July 3, 1947 (Morning session)

law, to straighten out conflicts between its various decisions and those of other courts, so that its work shall be done in a scholarly and thorough manner. This ought to be self-evident, and I am sure it is.

Now, how to go about that? Under the existing system, and I'll take the year 1946 as an example, there came up to the Court of Errors and Appeals 199 cases, a relatively light year's calendar. And when you think about that figure, 199, and you consider the number of available working days, you will find, I am sorry to say, there is not adequate time for the consideration of important questions. That arises out of the conflict of duties that the members of the court at present have and which, I assume, under any proposal will be eliminated. This court should be confined to appellate work, solely.

The problem is, what is a fair work load? I know of no way to measure it, but if my brief experience of six years is any criterion, I can honestly say this - that whatever court is constituted and whoever goes on it, you may rest assured that the men will put all of their available time into the work. In other words, I am not concerned about there being too little work; I'm concerned about the load getting perhaps too heavy at times, and my suggestion to guard against that is this: that the court of last resort take only certain cases. I think that the enumeration of the type of cases which is contained in the 1944 proposal is probably satisfactory. I have nothing to suggest in lieu of that. I think that there is one provision in there that ought not to be lost sight of. You will recall that the last category of cases to go before the court of last resort is that in which the court of last resort has certified a case to itself. That to me is very important because, if cases involving constitutional questions and cases which the court will certify do not make adequate work, the Chief Justice of the court of last resort can always by certification reach down into the pot, and there will always be a surplus of cases in the appellate divisions or the intermediate court of appeals from which he can take cases. I don't contemplate that that is going to be necessary, but it is one of the conditions that I think should remain, in the event that there ever came an unduly slack time.

Now, my judgment, not based on experience, is that this court should, in the final analysis, probably be a seven-man court. I select seven because that gives a little leeway for illness and temporary disabilities of one sort or another - leeway that would be lacking, I think, in a court of five. So much for that.

As to the intermediate court of appeals ... I do have a feeling about that which is rather strong. There has been some thought of creating appellate divisions, and I rather look with disfavor upon the creation of appellate divisions for the reason that may not have

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