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

Part II

1. ORGANIZATION OF TRIAL COURTS

The Need for Revision and Simplification of Prerogative Writ Practice

The State Bar Association Prerogative Writ Committee secured the introduction in the 1946 Legislature of a bill designed to unify, modernize and streamline the procedure in prerogative writ proceedings, Senate Bill No. 238. But several provisions saving the applicability of existing practices and procedures had to be incorporated to protect the bill against the taint of unconstitutionality. While no action was taken on the proposal by the Legislature, the submission of the bill served the salutary purpose of stimulating interest of both the bench and bar in the reform of the prerogative writs.

The need for constitutional reform is also pointed up by the promotion of prerogative writ practice elsewhere, under conditions of freedom from constitutional strangulation. A pertinent instance is the creation in New York of a single form of action for securing the relief previously afforded by the writs of certiorari to review the determinations of a body or officer, mandamus and prohibition. P. L. 1938, c. 526, abolishing the former Article 78 of the Civil Practice Act and substituting a new Article 78 entitled “Proceedings against a body or officer,” Civil Practice Act, secs. 1283, et seq. The substantive law governing the right to relief was not changed, the only object being to achieve uniformity of procedure and “to make the procedure correspond largely to the procedure in actions in general.” Nichols’ Cahill, Annot. New York Civil Practice Acts (1939). Vol. 10, pp. 474, 476. The purpose has been stated to be to “wipe out technical distinctions which had been a snare for suitors,” Newbrand v Yonkers, 285 N. Y. 164, 33 N. E. (2d) 75. This enactment, which appears to have been the inspiration for New Jersey Senate Bill No. 238 (1946) aforementioned, provides a simple, unified procedure, with provisions for striking out frivolous petitions or defenses on motion, and for expeditious determination of issues of fact and law by the court. In proceedings for review of determination of boards or bodies, parties interested in sustaining the action sought to be reviewed are permitted to become parties and to be heard on all issues of fact and law. The procedure is a matter of right in any party having an interest.

Aspects of the Present Constitution Which Require Revision In Respect of Prerogative Writ Practice

It is generally agreed that it will be necessary for the new Judiciary Article to vest in the new constitutional courts the powers and jurisdiction of the courts supplanted. See Article X, the Schedule of the 1844 Constitution, and Article XI of the proposed 1944 Constitution, Sec. IV, par. 6.

The prospect of incorporation in the presently proposed Judiciary Article of such a provision immediately evokes the thought that the transfer of the “jurisdiction” of the present Supreme Court

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