N.J. Constitutional Convention: Vol. 4, Page 480
sent him back and there decided, three to two, that Judge Smith had the right to do what he did, and affirmed his action. It was taken to the Supreme Court and there the Supreme Court, nine to nothing, said Judge Smith didn't have the right to do what he did.
I think this, Prosecutor, that where you have important litigation, especially where you are going to have real important and closely defined litigation coming out of this Constitution, it is going to be much better for the citizenry at large to have two separate and distinct levels of courts to decide the issues. I don't think the fact that the top court decided it of itself, other than the fact that it is final, has a special import to the way we are going ahead, because we have to look at this thing on the long pull. We are affecting here not only ourselves, but our children and their children, etc., on down the line, for hundreds of years. The Supreme Court of the United States and the highest courts in every state in the Union often reverse themselves. Now, if you got one body, that might be very lively.
I say this in utter humility, gentlemen, because I lost in front of the committee.
MR. WINNE: I think we all understand your argument, but I can't see, however, since you agree that the nine to nothing decision and the Supreme Court settled the matter, how it could have been settled better than if you had had the nine to nothing decision without the intervention of the Circuit Court of Appeals.
MR. BROGAN: If I may say so, the nine to nothing decision decided that the judge did not have the power to do what he did. But Judge Smith, on the other hand, decided that on the merits he should have given him a new trial.
MR. WINNE: Well, we are talking about whether there should be one appeal or two appeals. We are not talking about merits, or anything else. We are talking about the fact that Judge Smith decided something. It went to the Circuit Court and it decided it one way, and then it went to the Supreme Court, and it decided it another way. That is the way it ends up. Now, then, why not go directly from Judge Smith to the top court and it ends up the same way, nine to nothing, presumably?
JUDGE MADDEN: Not necessarily so, and I will tell you why not. If it went from Judge Smith directly to the Supreme Court, the Supreme Court would be without the benefit of the majority opinion and their theory and legal reasoning, cited in their opinion, and they would also be without the theory and the legal reasoning of the dissent, all of which is of much assistance.
MR. WINNE: There is one other thing I would like to say.
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