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JOHN F. CARLISLE, of Columbus:—Insofar as the information from Common Pleas Courts is concerned, relative to the condition of the docket, I doubt seriously without express words from the Judge of the particular Common Pleas Court whether statistics relative to the number of cases would indicate the congested condition of the court docket. The mere number of cases on a docket does not indicate congestion. The Secretary of State receives from the Clerks of the Court of the State statistical reports that are sent in to him by the first of July of each year. He then embodies these statistics in a volume, and I will leave it to you men whether when you investigate that particular record it is possible to determine the question of congestion. That question could only be answered from the personal knowledge of Judges of the Courts, regardless of the number of cases on the docket. There are times in a year when you may have quite a number of cases and yet there may not be any congestion; but you might run into a condition of the docket where you would have a large number of cases running a week or two or three weeks, during the trial of which your docket would become congested. You might have congestion one particular week or month of a term and still be up to date six weeks from that time. I know that as a practical proposition, because I happen to be the Assignment Commissioner in Columbus and am assigning cases and have been doing so for sixteen years. When we need a Judge we notify the Chief Justice of the congested condition of the docket and he sends one to us. I do not doubt that it might be a good thing from a statistical point
a of view, but insofar as it would be of any particular advantage to the litigant in the matter of getting up on the docket, it could only operate as such in a proportion of cases, because you men all know from experience that the number of cases on a docket does not necessarily indicate congestion. You can find on the most of our dockets now-a-days hundreds of uncontested divorce cases. That is not congestion. You can get rid of those in a very short time. But you might run across one case on the docket that would take a month to try.
THE PRESIDENT: Are there any other remarks, gentlemen?
P. L. A. LEIGHLEY, of Cleveland: I am opposed to any law that requires any Common Pleas Judge to make any report to any Court of Appeals or any Supreme Court, because I believe in an independent judiciary. It is not for the Chief Justice or the Court of Appeals to require reports from any lower Judge. That Judge gets his power from the unit in which he is elected. He is only obliged to report to that. The Court of Appeals to its unit and it ought to report only to people who elect it. In the interest of an independent judiciary, do not compel the Judge of a lower Court to do the clerical work of reporting to any upper Court.
Louis H. WINCH, of Cleveland:-I think this resolution is misunderstood. May I read it and explain it? There is a suggestion that a Committee be appointed to study the situation in the hope that something may be done. There is a suggestion that a Committee be appointed. It may be that you have all studied this situation and know so much about it that you are prepared to vote intelligently on the merits of the proposition. The Committee was not of that opinion. The Committee has no definite Bill to suggest. It has no definite suggestions to make. It points out a situation and suggests that a Committee be appointed to study it. It is possible that the Committee should report to the next Annual Meeting of this Convention or Association, rather than to appeal to the legislature. I think an amendment of that kind would be very good, but so far as shutting off the consideration of the subject entirely it would seem strange that the Bar Association would attempt to do that unless it has already studied the matter and made up its mind.
WALTER D. MEALS, of Cleveland:-I should like to have it read and then I would like to ask what the condition is that necessitates such investigation.
LOUIS H. WINCH:The resolution reads: "That a committee be appointed to draft and present to the next session of the legislature a bill providing for broadening and extending the supervising power of the Chief Justice of the Supreme Court over the various courts of the state to the end that there may be efficiency and uniformity in the administration of justice in Ohio.”
WALTER D. MEALS:—I think a body of lawyers in convention assembled should act intelligently. The recommendation provides that a committee be appointed to draft a Bill extending the powers of the Chief Justice over the several counties of the State. In the first place, the Court of Appeals, which is the next lower Court, derives its jurisdiction from the Constitution of the State and for that matter the legislature has no more power over that Court than a rabbit and legislation of that kind would be of no consequence and no competency whatsoever. Duties cannot be imposed upon it that are not imposed on it by the Constitution. The Supreme Court has so held. Its jurisdiction can neither be enlarged nor diminished. Now so far as the Common Pleas Court is concerned, I know of no power of supervision over it that can be given by the legislature that is not already given by the Constitution of today. Every Common Pleas Judge in the State as every Court of Appeals Judge in the State may be assigned to duty in every county of the State. The Chief Justice is exercising that power today as respects the Common Pleas Courts. The Chief Justice of the Court of Appeals is exercising that duty as respects the Court of Appeals. What further power can be given by legislative enactment on the subject I do not know. What further control or supervision can be vested in the Chief Justice of the State on the subject I do not know. What the condition is that calls for such legislation I do not know. At least I am not apprised of it. I think we are very well constituted in that regard and we are limited by the Constitution in that respect and I do not believe a body of lawyers should go on record as endorsing something that it is clearly beyond the power of the legislature to enact or to suggest that a Committee should be appointed to draft legislation which the legislature has no power to enact. I believe a convention of lawyers should act like lawyers and not propose legislation that is not constitutional or legislation that is not needed, and I therefore oppose this recommendation.
THE PRESIDENT:—Are there any other remarks on this question, gentlemen? It ought to be thoroughly discussed.
CHARLES B. HUNT, of Coshocton:-I move that this matter be referred back to the Committee on Judicial Administration and Legal Reform for further consideration.
Motion seconded and carried.
THE PRESIDENT:—That concludes the consideration of that report. The next matter on the program is the report of the Special Committee on Uniform System of Reporting, Daniel W. Iddings, Chairman.
Mr. Iddings then presented the following report:
REPORT OF SPECIAL COMMITTEE ON UNIFORM
SYSTEM OF REPORTING.
CEDAR POINT, OHIO, July 8, 1919. To the Officers and Members of the Ohio State Bar Association:
GENTLEMEN:-At the Thirty-ninth Annual Meeting of this Association, held last year in Cleveland, on August 27th, 1918, the Report of your Special Committee was presented, unanimously adopted, and the Committee continued.
Barring a resume of the confusion and chaos existing with respect to the official and unofficial reports of the Ohio Appellate Courts, and the unavailing efforts of your Committee to secure relief, due to the selfishly stubborn private publishers and lack of co-operation by the Appellate Judges themselves, the big appeal of our Report was to bring to the attention of the bench and bar of Ohio the very timely Memorial of the American Bar Association, decrying the multiplicity of reports and calling upon the Judiciary to assist the Bar in reducing the number of printed volumes of decisions. This Memorial had been adopted by the National Association at its Saratoga Springs meeting in September, 1917, and represented a condensation of the comprehensive paper on the subject by ex-Solicitor General John W. Davis, read at the Chicago session the year before.
Our Cleveland meeting was not as well attended as it should have been and therefore the appeal was not as great as it should have been—not an unusual record for our Association—and your Committee then stated that it was its purpose anyhow to carry the war into the enemy country, and present “the Memorial to the several courts in formal manner during the next few months so that no judge can hope to escape at least the 'listening process.'
(1918) 39 O. S. Bar Association Report 60.
We did this work conscientiously, presenting the Memorial to the Annual Meeting of the Appellate Judges in Columbus, on September 17th, to the Chief Justice and Judges of the Supreme Court on October 1st, to United States District Judge Howard C. Hollister, at Dayton, on October 7th, and to the United States Circuit Court of Appeals Judges at Cincinnati, on October 8th. At this latter presentation Hon. George Hoadley, President of the Cincinnati Bar Association, Mr. Charles B. Wilby and other members of that bar participated and contributed towards an impressive ceremony at the autumn opening of that court.
Individual members of the Committee were also responsible for the presentation of the Memorial to other Judges, including United States District Judges Killetts, at Toledo, Westenhaver, at Cleveland, and Sater, at Columbus. The last named jurist in characteristic language, stated in reply:
“I join in the effort of the American Bar Association to limit the number of cases reported and to curtail them in length. It has long been my policy to have no opinion of my own published, outside of those written for the Circuit Court of Appeals, excepting such as involve new points. Very few of my opinions have been going to print. In cases in which my opinions are not designed for publication, but which I have reason to believe will go to a higher court, I am much more elaborate than in those instances in which publication is contemplated. That, however, is simply for the benefit of the higher court, that they may know how I view cases decided by me.
I have long thought that a very large percentage of all cases reaching reviewing courts should be disposed of without report or in mere memorandum opinions, and that there ought to be an officer or board who shall determine for each State Supreme Court and for the Federal Courts, (other than the Federal Supreme Court, at any rate), what opinions shall be published. I should think that at least fifty per cent. of all the cases published are of no material advantage to either the bench or the bar.
Necessarily this propaganda had a direct bearing on the intolerable situation of our own Appellate Court Reports, and elicited a further responsive chord on the part especially
of the Judges of our Supreme Court, who through their Chief Justice assured us of their approval of any workable plans, however drastic, and of their active co-operation even if legislation became necessary.
But of course our conference with the Appellate Court Judges themselves in Annual Meeting last September was our principal effort of this sort. They listened to the Memorial with interest and favorable comment, and then, at our suggestion, as token