N.J. Constitutional Convention: Vol. 4, Page 524


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 30, 1947 (Morning session)

men are comparatively young, in their mind, at least, at 70. It seems to me that if you insert a mandatory provision that a judge automatically retires at 70, you are going to put out of office some judges who have just reached the height of their judicial powers.

Mention was made of Justice Holmes, who served on the United States Supreme Court until he was nearly 90. Of course, I think that is an exception, but I think we have many judges who are in full possession of their physical and mental powers after they have passed the age of 70, and that it would be a mistake to deprive the State, by law, of the services of those men, most of whom have spent years in acquiring the knowledge and the experience which make their services valuable to the State. It has been suggested that an alternative provision making it permissive for a judge to retire at, say, 65 and mandatory that he retire at 75, would perhaps be a more desirable provision.

Some of the speakers immediately preceding me have objected to the provision somewhere herein contained - I have read it but I have forgotten the section - which gives a review as a matter of right of those matters heretofore reviewed by prerogative writ. I want to say that I agree with the previous speakers that such a review should not be a matter of right. For example, some important ordinance is passed in a municipality, or some much needed public improvement is provided for; then, if every one of those decisions can be reviewed as a matter of right, it will tie up municipal improvements, sometimes for long periods. Where you review such a matter as that, you don't apply today and get a hearing tomorrow. Sometimes it takes weeks or months to get a hearing. Testimony has to be taken, a record has to be made, and municipal improvements can be very badly tied up under such a provision.

Under the statutes now existing, if someone objects, for example, to a municipal improvement that would ordinarily in certain time be reviewed by writ of certiorari, we don't get a writ of certiorari as a matter of right. We apply to a Supreme Court Justice, on affidavit, by verified petition, stating sufficient facts. We try to indicate that something is wrong with the action of which we complain, and ask for a writ of certiorari to review the matter. We don't get it automatically. It is a matter directly within the discretion of the court and I think it should continue to rest in the discretion of the court. Otherwise, you are liable to have the court flooded with these reviews, many of which would be entirely unjustified. I don't want to deprive the people of the right to review in a proper case, but I think it should still rest in the discretion of the court or, if authorized, with a single justice to whom the application might be made.

There is one other point that has caused some confusion in the


Previous Page in Book ********* Table of Contents *********** Next Page in Book