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AMERICAN JUDICATURE SOCIETY
seven States. Five others went about half way, and in the remaining States legislative interference became quite as common, though less consistent. Exception can be made of certain States in New England, where evolution has been of a relatively successful nature.
During this later period the exercise of the courts' function to declare invalid acts in contravention of the organic law became of frequent occurrence and led finally to a great deal of indignant opposition. Where constitutions have become overloaded with legislative detail, the supreme courts have tended to become a third legislative chamber, having the final veto power.
Court's Hands Are Tied
Could there be any more real violation of the principle of separation of powers than in such a State? If there is danger to republican institutions from departing from the principle, how could this danger materialize more genuinely than by having the legislature tie the hands of judges with thousands of sections of procedural law, while their own work is so bad that the courts have to reject a considerable part of it?
This is violation of the principle with a vengeance. It has led to the demand in many quarters that the courts be deprived of their prerogative now exercised so long, and on the whole so wisely. If courts were so deprived, the principle of separation of powers would be thrown overboard once for all, and the legislatures would before. long acquire the powers exercised by them in governments which are founded on legislative sovereignty.
The writer believes that in many States we have, in the manner stated, already departed from the principle of separation and that great harm has resulted.
been obliged through the length of State constitutions, to play a large part in legislation.
To restore the desired equilibrium, we need to build up each of these departments of government in the efficient discharge of its own peculiar duties. Let the courts have the initiative at least in rule-making, so they can work out their salvation under the pressure of responsibility. Let the legislatures improve their structure and rules and methods of drafting laws so that their product will be workmanlike and reasonably expert.
A properly constituted legislature, assisted by an expert drafting bureau, could acquire self-respect and popular confidence by the inherent worth of its product. Such a legislature would have no trouble defending its prerogative against judicial usurpation. And a unified State court, able to shape procedural rules to accord with the reasonable demands for efficiency, could be held accountable by public and professional opinion so that it would restrict its veto power over legislation to acts plainly in conflict with the letter and spirit of the organic law.
Result is Discord
At the present time each of these departments is doing more or less of the work of the other, and for obvious reasons doing it badly, with resultant discord. and clamor.
The proposals submitted involve a great deal of constructive labor. There is no simple, easy cure for the defects which have been developing for a generation or two.
Some of the best things the courts have done have been the things for which they have been most blamed. Some of the things which legislatures are constantly importuned to do are things which they are wholly unfitted to do well. We have departed from the principle of separation of powers. Instead of fatuously pointing to this principle as the great guaranty of our institutions, we should take steps to The courts, on the other hand, have return to it and give it a genuine trial.
Legislatures perform so large a part of the administration of justice through monopoly of rule-making that courts cannot be held responsible for results in their own. inherent field.
The State Bar Association of Mississippi has taken the lead in the work of presenting a complete and consistent scheme for reorganizing the courts of the state. Chief Justice Sydney Smith, as president of the association, presented the American Judicature Society's first draft of a unified state court at a meeting held May 4, 1915. The association thereupon appointed a committee to adapt the plan to the local situation. The committee is composed of V. A. Griffith, chairman, Percy Bell, W. A. Ellis, Gabe Jacobson, and C. P. Long. The plan worked out by the committee is presented as a constitutional article having only 29 sections, and yet covering the entire field of court organization and the selection and retirement of judges. The report presents argument in favor of the changes proposed and discloses most thorough study of the subject.
The chief justice is made executive head of the entire system of courts. There is created a judicial council composed of the chief justice, one associate justice, the circuit judge at large, one circuit judge of the law division, one of the chancery division, and two district judges. The council is given full power to regulate procedure, subject to repeal by the legislature two years or more after promulgation, and generally to direct the work of all the judges, justices, clerks, jury commissioners and other officers.
The unified court consists of three grand divisions: The Court of Appeals, the Circuit Court and the District Court.
The Court of Appeals has a Supreme Court division comprising six justices and the Chief Justice. Ordinarily the Supreme Court division 'will sit in two divisions of three justices each. But when there is disagreement, or when the Chief Justice directs, or any justice certifies that any proposed opinion is in conflict with any prior decision, or the cause is one
involving capital punishment or interpretation of the constitution, the Supreme Court division will sit in banc. This arrangement will give the Chief Justice sufficient time for his considerable administrative duties.
When business is pressing additional divisions are to be made up by drafting circuit judges, one of whom will sit with two justices to form a temporary division. This affords elasticity of structure to meet occasional needs and prevent congestion of appellate dockets, one of the greatest evils of our typical system. "If we had such a plan now," the committee say, "additional divisions could be made up so as to dispose of the more than one thousand cases wherein our court is behind its docket, and once up, by like elasticity of procedure, it could never fall behind again." Provision is also made for escape from the "one-man opinion" plan, now in
For the nisi prius branch the state is to be divided into six districts, each to have two circuit judges and one chancellor. The Circuit Judge at Large is to be ex officio reporter of the Court of Appeals and subject to be drafted to fill the place of any judge temporarily incapacitated. The Circuit Court is given jurisdiction of all causes involving more than $500, of trials for felony and infractions of the liquor laws.
Civil jurisdiction less than $500 and the trial of misdemeanors is vested in district courts, not more than thirty in number. A justice of the peace is to be elected in every supervisor district. The Judicial Council is empowered to remove any justice of the peace for extortion or other misconduct. The office of constable is abolished.
All the judicial officers are elective except the chancellors, who are to be appointed by the Chief Justice of the State for a term of six years. Mississippi has
had experience with both elected and appointed judges. It was the first state in the Union to depart from the once universal appointive system. Two changes since then leave the state at the present time among those that elect judges. The draft article contains this novel proposal regarding eligibility for office:
Judicial Sec. 10. Elections; Further Qualification of Candidates, and as to Judicial Campaigns.-There shall be a judicial election held every four years throughout the state, at a time to be fixed by the legislature, separate and apart from all other state or national elections, but the legislature may at any time fix said elections more than four years apart, in which event the terms of judges and justices shall thereby become correspondingly lengthened. Before any person not theretofore having been a justice or judge may become a candidate in any judicial election for judge or justice of the General Court, or be appointed thereto, he shall be examined by the Judicial Council, under such general rules as it may adopt, (1) upon his moral fitness, (2) upon his administrative and executive fitness, and (3) upon his legal learning, and shall have procured a certificate of qualifications upon such examination from the Judicial Council; but any person having once successfully passed such examination shall be exempt therefrom as to future candidacies. Any person who has, upon such examination, been denied a certificate of qualifications by the Judicial Council, shall have the right to apply within twenty days thereafter to the chief justice for a reconsideration of the decision upon his said examination, whereupon the Judicial Council shall, within ten days, further thereafter proceed to so reconsider same, in a public hearing at the seat of government, wherein the said party shall have the right to appear and be heard by himself or counsel, or by both, and the said Judicial Council shall thereupon have the power to affirm or reverse and grant the certificate, or to award another examination, in either of which cases it shall fully state the reasons for its actions in writing and spread the same upon its minutes. All the papers and records touching not only the examination of the party in question, but all other like examinations, shall be public records and shall be available on such said hearing. The Judicial Council shall make and promulgate proper and reasonable general regulations for the conduct of judicial campaigns and for the promotion of the dignity and integrity thereof, any wilful viola
tion of which regulations, when established beyond a reasonable doubt before the Judicial Council, shall disbar any offending candidate from taking or holding office, if elected, if at least 5-7 of the Judicial Council shall so hold.
The provision for removal from office is as follows:
Sec. 19. Manner of Removal from Office. -Any justice or judge of the General Court may be removed at any time (a) by impeachment, or (b) by a two-thirds vote of each branch of the legislature. And any circuit or district judge may be at any time removed by at least a five-sevenths vote of the Judicial Council, for (a) inefficiency, or (b) incompetency, or (c) neglect of duty, or (d) conduct unbecoming a judge.
The adoption of such an article would give Mississippi beyond question the best appellate court structure of any state in the Union. The most embarrassing, costly and inexcusable defects of appellate procedure would disappear. The Circuit Court system would suit the needs of the state excellently, for it must be remembered that Mississippi is a homogeneous state with no large urban centers. In respect to inferior courts the draft does not go quite as far as it should, but the substitution of salaried and appointed justices under supervision of the district judges would naturally follow in due season.
It will be noticed that there is no special probate court. There is no reason why there should be one. There is nothing so difficult or technical about probate procedure as to warrant an independent set of judges for this work alone. Judges fit to handle general law and chancery practice can take care of probate causes and there can be no real economy by employing lay probate judges.
The great feature of the draft, of course, is the creation of the Judicial Council. On the first Monday in January in every year the judges and justices meet to receive the annual report of the Chief Justice and to elect from the respective grand divisions their representatives on the Judicial Council. No justice or judge shall solicit a vote for such a position and
none is permitted to decline the service. The Council is to meet regularly twice a year and specially as required.
The report was received at the annual meeting of the Mississippi State Bar Association May 2, 1917. A decision of the Supreme Court affecting the means for putting such a plan into execution was rendered shortly before, which required a revision of the report, and this prevented circulation until nearly the time for the meeting. The result was that the Association was not prepared for final action. The report was recommitted, with seven additions to the previous committee.
The plan has been branded by one Supreme Court justice as an attempt to sell the people of the state into judicial slavery; but the committee is undaunted. It is reported that the general tenor of comment in the Association is highly favorable.
The novel proposal for the examination of candidates for judicial office was derided by opponents of the report, but on the following day the Association adopted a resolution calling upon the legislature to introduce the system proposed and quoted above so that it would be in force in 1918.
Procedure Through Rules of Court
For fifty years we had controversy concerning the relative merits of code procedure and common law procedure. It is now evident that neither code nor common
law procedure is a guaranty of efficiency. In some code states comparatively good
results are observable and in some the results are bad. In some common law states procedure is a serious burden, while in certain others it has been made to yield excellent results.
The significant fact is that for more than fifty years courts have been dependent upon legislatures as the source of procedural reform. In some of the so-called common law states there have been enacted twenty-five hundred sections of procedural law.
This era of dependence upon legislated rules was doubtless inevitable as a method of modernizing judicial procedure, because the courts, lacking the organization needed for administrative control, could not react to the demand for rational procedure.
Legislated procedure has brought with it a train of evils. It violates the fundamental principle of separation of powers. It tends to restrict and belittle the courts. It hopelessly divides responsibility for
administering justice. It makes courts dependent upon inexpertness in rule drafting. It exalts mere procedural rules to the realm of substantial rights, thus multiplying the number of issues to be tried, and making our litigation more and more an inquisition into non-essentials.
There is no need to go into details with respect to the charge that legislated procedure is often as crude as it is rigid. Every lawyer knows of instances which prove the accusation. On any broad view it is clear that legislatures, with their constantly changing personnel are unable to develop consistent and scientific systems of procedure. Frequently the motives governing procedural tinkering are tainted. In any case the courts have to take what is given them and endeavor to make the best of it.
These considerations have led to a widespread movement for restoring to the courts their traditional function of controlling and developing at least the less essential parts of procedure. In a foregoing article (p. 5) an attempt has been made to show that there is an administrative side to judicial power necessary as an aid to the essential judicial function. Just so it is coming to be seen that there is a rule-making or legislative side in sup
port of the primary function of adjudi- of procedural rules framed by the Supreme cating.
The idea that judges are to be trusted with decisions in matters of the highest private and public concern, but are incompetent to determine the manner of conducting litigation, is wholly untenable.
The movement for restoring to the courts their historical power to control the development of procedure dates back a number of years. It found authorita
tive expression in the report of the American Bar Association's Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation. (A. B. A. Proc. 1909, at p. 595.)
Whenever in the future practice acts or codes of procedure are drawn up or revised, the statute should deal only with the general features of procedure, and prescribe the general lines to be followed, leaving details to be fixed by rules of court, which the courts may change from time to time, as actual experience of their application and operation dictates.
The Fundamental Need
This principle laid down in 1909 has become the cornerstone of a great movement. The reform of Federal Equity Practice was accomplished in conformity with it. A later A. B. A. committee on Uniform Judicial Procedure, headed by Mr. Thomas W. Shelton, has been very active in spreading the doctrine. The committee has especially sought adoption of an act of Congress to authorize the United States Supreme Court to draft a code of rules for practice on the law side of the federal courts. It is believed that the result would be such a practical, flexible and relatively simple procedure that it would commend itself to the several states and in time come to represent the norm of American practice. There is no doubt that Congress will act favorably on the bill sooner or later. It would have been passed by the last Congress but for a blunder which resulted in adoption of another bill.
Meanwhile the work in the states has borne fruit. Colorado has had a schedule
Court for over two years. The first draft met with severe criticism at the hands of the bar and a revision was forthcoming with little delay.
Progress of the Idea
The Virginia legislature has directed the Supreme Court of that state to draft a schedule of rules. The work is deferred in expectation of co-operating with the Supreme Court of the United States to the end of ultimate uniformity.
The Michigan Judicature Act (1915, Chap. 1, Sec. 14) directs the Supreme Court to control procedure in most explicit terms. Alabama came into line in its legislation of 1915. The Board of Statutory Consolidation of the State of New York has supported this principle steadfastly. In its report of 1912, p. 2782, there appears a very thorough discussion of the proposal. It was made a part of the constitution rejected in November, 1915. Since then there has been a movement looking to the adoption of a constitutional amendment to put the plan into operation.
In California at the time this is written there is a senate bill to submit a constitutional amendment giving the Supreme Court exclusive power to make and amend procedural rules. This is a more drastic provision than is contemplated by the American Bar Association canon. In England, Canada, Australia, South Africa and other English-speaking countries the rule-making power is freely exercised by the courts to the practical exclusion of the legislative branch. It is customary to provide that new rules shall be submitted to the appropriate parliament for a certain time before taking effect, so that the legis lators may intervene if they choose.
Ordinarily, the rules go into effect without legislative interference. In Ontario, for instance, the provincial parliament has not interfered with judicial rule-making in any respect since the power was established in the courts in 1881, although there