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“Your committee has caused to be prepared a draft of a bill for an act to submit to the qualified electors of the state amend. ments to the Constitution covering the points indicated.
“Your committee would also recommend that this Association cause said bill to be introduced in the next general assembly and passed, if possible.
"Your committee sees nothing inconsistent in presenting both bills and in urging their passage.
“The amendments to the Court of Appeals Act your committee believes to be absolutely necessary, and they will relieve the court at least to the extent of taking from their consideration those cases now pending or which hereafter might be taken there, and which the parties desire the Supreme Court to deter: mine.
“While your committee believes these amendments to the Court of Appeals Act necessary, it still considers that the relief which will thereby be afforded will be only temporary, and that permanent relief can only be obtained by the adoption of the proposed constitutional amendments.
“But as the proposed constitutional amendments will not be effective, if adopted by the people, for some time, your com: mittee, recognizing the present necessity for prompt relief, urges the passage of the bill amending the ('ourt of Appeals Act, and as all lawyers, litigants and persons acquainted with the business of the Supreme Court are perfectly familiar with the urgent necessity of the adoption of the proposed constitutional amendments at the earliest date practicable to relieve that court, in addition to the fact that this presents the only true way in which congested appellate business can be disposed of and prevented, your committee would most earnestly recommend the passage of the bill submitting the amendments to the qualified electors of the state.”
This report, being presented to the Denver Bar Association, was by it unanimously adopted. The bills referred to in the report, and which had been prepared by the committee, were placed in charge of another committee appointed for the purpose of having them introduced into the legislature and enacted into laws, if possible. The bill amending the ('ourt of Review Act was passed by the legislature and is now a law. The bill proposing the constitutional amendments referred to in the report, and which the Committee on Law Reform of this Association has now submitted to this Association, failed of passage because of the number of bills which were introduced into the legislature proposing constitutional amendments; the legislature in its wisdom deeming it better to pass the bill permitting more than one amendment to the Constitution to be considered at one and the same time than any particular one of the many bills proposing other constitutional amendments. The proposed amendment to the Constitution adopted by the legislature will have to be acted upon by the people at the next general election.
Now, with respect to the bill proposing constitutional amendments increasing the number of judges and permitting the court to sit in departments, we all know that if the court is simply increased in numbers, as one of the bills presented by the committee provides, there will simply be five judges to consider the same matter instead of three, and that that will not relieve congested appellate business. We all know that if the Court of Appeals Act is repealed and the Supreme Court en banc is obliged to do all the appellate business, it will continually get further and further behind. There must be a method provided whereby that court, if the Court of Appeals should be abolished, may sit in departments, as is done in the states and in the manner referred to by the last speaker. We also know that a great deal of the time of the judges of the Supreme Court is taken in writing unnecessary opinions, deciding questions theretofore determined in innumerable instances, especially in cases where appeals have been taken for the purpose of delay. In that class of cases there is no advantage in placing the labor upon the court to write an opinion. In other words, the court could be greatly relieved if the judges themselves had the power to determine the cases in which written opinions could be filed and published. The committee of the Denver Bar Association, which gave the matter much consideration, was unanimous in the conclusion that the Court of Appeals should be abolished, the number of judges of the Supreme Court increased, their tenure prolonged, and further, that they should be permitted to sit in departments and there consider such cases as they, in their judgment, might determine. It seems to me that this is the only way in which the court can dispose of congested appellate business, and at the same time promptly attend to its new business. It also seems to me that this Association ought to take some definite action in reference to this matter, as well as to the tenure of office of the judiciary:
Henry C. Charpiot:
In listening to this discussion one thing in particular has impressed me, and that is that the entire discussion of the question of the congestion of the appellate court dockets has been limited to an examination of the symptom, but no attempt seems to have been made to discover the true nature of the disease through a study of the fundamental trouble of which the symptom is but the natural result. One thing is perfectly apparent to even the casual observer which points to some vice in the judicial system; or to the inefficient administration of the law, and that is that six judges of the appellate courts of this state are hopelessly struggling to dispose of the business of a popula. tion of about half a million people; whilst in England about twenty judges dispose of the appeals of the United Kingdom.
The Court of Cassations of France, having general criminal and civil appellate jurisdiction in all its branches, has only about forty judges, and this court is not a day behind its docket. Since the reform of 1873 the appellate courts of England have been up with their dockets. A careful examination of the sub. ject will disclose the fact that the practical difficulty in reliev. ing the congestion of the appellate court dockets does not lie in the application of any erroneous principle in the organization of appellate courts.
No one can justly accuse the judges of the appellate courts of incompetency; nor are they open to the charge of want of industry. They are probably the hardest worked set of men in this state. Generally speaking, it is due to them to say that they have done their work well and efficiently. The trouble lies lower in the judicial scale. Too many errors are committed in trials at nisi prius.
An examination of the appellate court reports will show, by a numerical count of decisions, that about one-half of all decisions are reversed, and the majority of reversed decisions have been overturned for errors committed in the application of perfectly well settled rules of procedure. The uncertainty in the application of the rules of law in trials at nisi prius has produced in the popular mind a want of confidence in the abilities of the judges in courts of general jurisdiction, which, in turn, has inculcated a habit of appealing a large percentage of causes tried. Such would not be the practice if the rules of law were administered with the precision that the bar and the people have reason to demand; for if reversals were rare, litigants would be satisfied with a final determination of their rights by efficient nisi prius courts. Such, in fact, is that state of the public mind in both England and France.
I believe these bills which have been suggested are in the right direction; especially do I approve of changing the time of judicial elections. That will have a tendency of placing more efficient men upon the benches of the nisi prius courts. But un. less you can so change the state of things that the nisi prius courts can command the highest order of talent, you will find until the end of time that the dockets of the appellate courts will be crowded and congested. The nisi prius judges are not wholly responsible for this state of affairs. The carelessness of lawyers has a large share in the evil. But an abler bench will insist upon better habits of practice at the bar. Let me cite you an example of the beneficent results that follow from the highest order of talent in nisi prius courts. It appears that some years ago the docket of a certain County Court in Michigan had become congested by reason of the protracted illness of the county judge. In order to work off the business, one of the judges of the Supreme Court (Judge Cooley) sat in the County Court in place of the county judge. It was calculated that more than six months of uninterrupted work would have been necessary to enable the regular judge to dispose of the accumulated cases. Judge Cooley is reported to have disposed of every case on the docket in three weeks, and though the usual percentage of causes were appealed, not a single one was reversed. The moral effect of such work would be of the greatest benefit to the people, for litigants would soon perceive that their rights were sufficiently safeguarded by the decision of the nisi prius judge, reducing thus to a proper minimum the causes appealed, which would result in a great saving to litigants and to the state. Only questions of great importance and general public interest would then reach the appellate courts; and such are about the only questions which ought to reach the appellate tribunals. I wish to lend the approval of my individual judgment to that provision of the proposed bill which changes the time of election of all judges. I think it would be a step in the right direction.
We have in this state a realizing sense of the importance of nominating proper persons for judges of the appellate courts, but we have not always been impressed with the importance and dignity of the positions of the nisi prius judges and sometimes we allow ourselves to grow lukewarm in our attempts to better conditions in that direction. Unless you improve the nisi prius bench of this state, whatever you may do towards improving and elevating the appellate tribunals, you will fall far short of the result which you desire to obtain.
Frank E. Gregg:
Undoubtedly all would be glad to have further discussion on this subject, and it would be interesting to listen to, but there are other matters to be taken up, and as there is a motion pending, I move the previous question.
I don't care whether the Association acts directly or through a committee. My motion was that we act now.
I would like to ask if the district judges are included in the motion.
W. H. Bryant:
It seems to me that the committee has not made a definite recommendation to us, but has brought the matter up for discussion. Now, I move as an amendment, that the whole matter be referred back to the committee with power in that committee to enlarge its numbers, if it sees fit, and with instructions to report its definite recommendations at a special meeting of this Association to be called in December, before the legislature meets. Then we shall have something definite to act upon and time to fully consider it, and we should make, as a whole Association, a definite recommendation to the legislature.
I wish to suggest that the election of officers must take place to-day, and if the Association will now indulge in a change of the order, I move that the President now appoint a committee