39 40 41 (a) Respecting the mode of conducting the business of The clerk of the General Court of Judicature, and The jury commissioners hereinafter mentioned; (b) Prescribing the duties of said clerk and his subordinates and the said jury commissioners and their subordinates. (c) In any matter touching the business of the General Court of Judicature not expressly forbidden by law. The directors are now and have been for more than a year engaged in the preparation and revision of a model schedule of rules of court dealing with practice and procedure. This work will continue for some time to come. When the draft of the rules is settled a conclusion will be reached with regard to the desirability of placing (as many have suggested should be done) the fundamental rules in a short practice act not subject to change by any other body than the legislature. It is not intended in the above draft to preclude the existence of a short practice act. A very slight alteration in the above section can be hereafter made which will recognize the existence of such an act. SECTION 80. Rules of procedure sanctioned.] Subject 2 to the power to make rules as hereinbefore provided, 3 there shall be in force at the commencement of this Act 4 the rules and regulations contained in the schedule an5 nexed to this Act: provided, however, the power to make 6 rules conferred by this Act shall include the power to 7 make rules with respect to the matters contained in and 8 regulated by the enactments described in said schedule 9 to this Act. SECTION 81. Trial by jury preserved.] Nothing in 2 this Act, nor in any rule or order made under the provis3 ions thereof, or of this Act, shall take away or infringe 4 on the existing constitutional right of trial by jury. SECTION 82. Power of judges to exercise the powers 2 vested in the Judicial Council.] The General Court of 3 Judicature may at any time, with the concurrence of a 4 majority of the Judges of the Court of Appeal and the 5 Superior Court, present at any meeting for that purpose 6 held (of which majority the Chief Justice shall be one) 7 alter or annul any rules of court for the time being in 8 force, and shall have and exercise the same powers as is 9 by this Act vested in the Judicial Council. SECTION 83. Rules of practice and procedure estab2 lished by the legislature, to be subject to the rule making 3 power.] The present rules regulating the pleading, prac 4 tice and procedure in the courts united by this act, which 5 are not inconsistent with or repealed by this act or any 6 rules included in the schedule attached to this act, 7 whether the same be effective by reason of any or all acts 8 of the legislature or otherwise, are hereby repealed as 9 statutes and are by this act constituted and declared to be 10 operative as rules of court for the General Court of Judi11 cature, but subject to the power of said court and the 12 Judicial Council thereof, conferred by this act, to make, 13 alter and amend the rules regulating pleadings, practice 14 and procedure in the said court. SECTION 84. Publication of rules.] At least forty days 2 before the making by the Judicial Council or the General 3 Court of Judicature of any rules regulating the plead4 ing, practice and procedure made pursuant to this Act, 5 or under its authority, notice of the proposal to make 6 the rules and of the place where copies of the draft 7 rules may be obtained shall be published in some news8 paper of general circulation throughout the state. Dur9 ing those forty days any person may obtain copies of such 10 draft rules on the payment of not exceeding . cents ...... 11 per folio, and any representations or suggestions may 12 be made in writing by any person to the authority pro13 posing to make the rules, and on the expiration of those 14 forty days the rules may be made by the rule making 15 authority, either as originally drawn or as amended by 16 such authority, and shall unless the Judicial Council shall 17 determine that an emergency exists, take effect only on 18 August 1 next after they are adopted. PART VI. SELECTION AND RETIREMENT OF JUDGES OF THE GENERAL COURT OF JUDICATURE. NOTE. The directors make no proposals for change where a given community believes that it has a satisfactory system of selecting and retiring judges. Every system may work well somewhere. It is only where present arrangements work badly and fail to give general satisfaction that this Society undertakes to aid in pointing out a different course to be taken. This position on the part of the Society has not been fully understood, with the result that its suggestions have been criticised by members of the bar in different parts of the country where the present arrangements give general satisfaction and no change is desired. Thus in Massachusetts, where the judges are appointed by the governor and hold during good behavior and are subject only to retirement by impeachment or legislative action, the Society's plans have been criticised on the ground that they constituted a proposal that in such a state a plan should be adopted which involved a greater degree of popular control through popular elections to determine whether a judge once appointed should be continued in office for another term. In the same way, lawyers in communities that are satisfied in all respects with the election of judges for short terms have assumed that the Society was urging them to abandon what was satisfactory and to adopt the plan of selection by appointment. These criticisms have been made under a misapprehension. The position of the Society is that if a given community is satisfied with any method of selection or retirement of its judges no change is urged. If, however, conditions are unsatisfactory and improvement is demanded, then we put forward for consideration suggestions with reference to the availability and probable effect of several methods of selection and of retirement. In the Metropolitan Court Act (Bulletin IV A) we had to deal only with the selection and retirement of a Chief Justice and associate judges. Whatever scheme was adopted might apply to all alike or to all except the Chief Justice. But now in the State-Wide Act we have not only a number of different ways in which judges may be selected or retired as outlined in Bulletin IV-A, but we have different classes of judges to deal with and the mode of selection and retirement appropriate for one class may not be the most appropriate for another. As in Bulletin IV-A the problem of selection should be kept separate from the problem of retirement. The various methods of selection should be considered in their application to the different classes of judges. The various methods of retirement should be considered with reference to the different classes of judges also. |