N.J. Constitutional Convention: Vol. 4, Page 586


MEMORANDUM OF G. W. C. McCARTER, Esq.


REVISED JUDICIAL ARTICLE NEW JERSEY CONSTITUTION AS PROPOSED IN 1944 BY STATE BAR ASSOCIATION COMMITTEE


SECTION II The Court of Appeals

Chief Justice of the Supreme Court and five Justices of Appeal, or a major part of them.

2. The Court of Appeals shall be vested with all jurisdiction and power heretofore vested in the Court of Errors and Appeals, and such additional appellate jurisdiction as the Legislature may by general prospective act provide (3). The Legislature may by general prospective act empower the Court of Appeals to provide by rule that appeals be taken only by its leave (4). The Court of Appeals may by rule designate one or more of its members to pass on application for leave to appeal, applications to continue or dissolve restraints, or other interlocutory matters (5).

3. The Secretary of State shall be clerk of this court (6).

4. No member of the Court of Appeals who has given a judicial opinion in the cause in favor of or against any matter complained of shall sit as a member or have a voice on the hearing or for its affirmance or reversal, but the reasons for such opinion shall be assigned to the court in writing.

5. Whenever by reason of disability, disqualification or absence a majority of the Court of Appeals shall not be available, the Court of Appeals may temporarily assign one or more Justices of the Supreme Court to the Court of Appeals (7).

(3) This would enable the Legislature to make any order, judgment or decree appealable, both on the law and facts, and would forever abolish the present doctrine that some action of the Supreme Court is necessarily final and not subject to review, e.g., decisions on the weight of the evidence and refusal of certain prerogative writs. The words "general prospective act" will prevent the conferring of special favor or short circuiting the Supreme Court in special cases.

(4) What is visualized here is a review by the Supreme Court of an inferior tribunal, judicial or administrative, on its record. In such a case why should the defeated litigant have the right in all cases to go further? The inclusion of the Legislature is to prevent the Court of Appeals from being so restrictive as to give its members a sinecure, and to give the elected representatives of the people a say as to what cases shall be considered by the court of last resort.

(5) This is to take care of situations arising in vacation.

(6) Maybe this does not belong in the Constitution.

(7) The assigning of a special judge to the Court of Appeals might cause the decision of that court to go one way or the other, depending upon who might be selected. That assignment job should therefore go to the whole court rather than to its presiding officer.


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