N.J. Constitutional Convention: Vol. 4, Page 538
men of the Committee:
I address myself very briefly to the results of your endeavors with respect to prerogative writs. Since the publication of your tentative draft, I have been receiving numerous phone calls and visits relating to particular phraseology, and a large amount of it relates to the one word which you have in the draft called "review." May I make a few comments with respect to it?
I think I understand what your desires are, and I hope that I have tried to carry them out with a slightly different change of verbiage. You are desirous, I take it, that anybody who feels that he has a cause of action should, as a matter of right, be permitted to present that cause of action to a court and have an adjudication upon it.
I also take it that by the word "review" you intended every sort of relief that is implied within the phrase encompassed by the prerogative writs.
Now, it seems to me that the word "review" is ill-chosen. Prerogative writs cover two classes of matters. One class consists of matters in which you review or effect an appeal from the action of a lower tribunal. But there are many actions which are actions of original jurisdiction, such as mandamus and quo warranto. They are not matters of review. They are entirely new actions. I therefore suggested the word "relief."
I understand that phraseology, "review" or "relief," has been the subject of much discussion before your Committee. I understand that one of the difficulties you found was that your desire to say that a party is entitled to something as of right might mean, if you used the word "relief," that all he had to do was to walk into court and say, "I want so and so, and under the Constitution and as a matter of right I am entitled to it." I think the difficulty you have gotten into, if I may be so bold as to say it, is that you are trying to say too much in too few words. Perhaps the longest way home is the shortest way home. I am, therefore, suggesting this to you. If you have your own draft before you, you will see the very slight changes that I have made (reading):
"Prerogative writs are superseded and in lieu thereof relief shall be afforded by the General Court in the manner provided by rules of the Supreme Court. The prosecution of the action for relief shall be as of right except in criminal cases."
I think that by inserting the phraseology "as of right" in a separate sentence you accomplish what you are trying to accomplish and you can use the word "relief," which I think is sufficiently broad to include "review."
That's my story.
MR. WALTER G. WINNE: You think it should be "as of right."
Previous Page in Book ********* Table of Contents *********** Next Page in Book