N.J. Constitutional Convention: Vol. 4, Page 640


REPORT OF THE SPECIAL COMMITTEE OF ESSEX COUNTY BAR ASSOCIATION CONCERNING CONSTITUTIONAL REVISION OF THE JUDICIAL ARTICLE

Part II


2. ORGANIZATION OF APPELLATE COURTS


Basic Considerations in Revision of Appellate FrameworkTable of Cases Disposed of By Highest Appellate Court

order for discovery in an action at law as is presently allowed in connection with a similar order in Chancery. All such orders might be made appealable to an intermediate appellate court or section. It is conceived, however, that preliminary or intermediate orders might be of great substantive importance, such as injunctions, appointments of receivers, etc., and that the Constitution should be sufficiently flexible to permit the Legislature to provide for appeals in such cases directly to the court of last resort.

In this connection, it has further been urged that orders subsequent to final judgment or decree, such as orders dealing with discovery in aid of execution, should be appealable of right at least to an intermediate appellate court or section. Presently such an order at law is reviewed only by the discretionary writ of certiorari. Oetjen v Hintemann, 91 N. J. L. 429. An order on an application to set aside or modify a final judgment or decree is more in the nature of a final judgment and may be thought of sufficient importance to be reviewable immediately by the Supreme Court.

It may be urged, however, that the subject of appeal in interlocutory matters is properly legislative rather than constitutional, but constitutional obstacles have been held to impede legislative reform in the matter of enlarging the subject matter of appeal from a constitutional court, Flanagan v Guggenheim Smelting Co., 63 N. J. L. 647, and if the objective of an appeal from interlocutory determinations is regarded as basically important, it may be wise to provide minimum assurances thereof in the Constitution, with legislative freedom in respect of extension.

In concluding this section of the present report, we are by no means to be understood as suggesting that the foregoing is a comprehensive discussion of all the problems pertinent to a constitutional revision of the subject of appellate review. There are unquestionably others that will require thoughtful consideration, first from the standpoint of whether the disposition thereof should be constitutional or statutory, and secondly, if determined properly to appertain to the Constitution, as to their precise content. It is earnestly submitted, however, that constitutional provisions dealing with the operation of the appellate machinery must, to be serviceable, be sparing of detail and language, and in case of doubt, be resolved in favor of legislative latitude, so that procedural reform and improvement through legislation and rules of court can be constantly feasible.

3. SELECTION, TENURE, RETIREMENT AND REMOVAL OF JUDGES

Methods of Selection

The methods fixed by the various state constitutions for the selection of judges of the highest appellate court are in a substantial


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