The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1912-03-15

salled administration of justice would
be farce.
Reform of Judicial Procedure.
i Having made clear what the func-
i tons of our courts is under our form
of government in maintaining the
constitutional guarantees of rights and
in preserving against the usurpation
OF the majority the rights Of the non
voting part of the people and OF the
voting minority and OF the individual
we come now to examine the charges
made against the existing system.
! concede that the system is not
perfect or as good as it can and ought
to be made | have been preaching
for reform, especially in the enforce
ment of the criminal taw. for years
Then too, | have pointed out in adj
dresses and presidential messages, the
great need for cheapening the cost OF
civil litigation and expediting it so as
to put as little burden on the poor liti
CANT as possible. The defeats in our
Judiciary have not been in the cOrrup-
zion Of judges but mainly in the pro-
cedure and in the helplessness of the
judges in jury cases to assist in reach
ing right conclusions. The popular
Impulse has been to take away the
power from the judge and to give it
all to the jury, and this has not been
for the public good in the enforce
ment of the criminal law. Such de-
fects as I have described are COM
pletely within the control of the legis-
latures of the state and congress, and
! am glad 10 say that the movement
for reform has been accelerated by ac-
ton of the state and national bar as
sociations, and we may look for de
cided progress in the near future.
But these humdrum defects and
their tedious remedies are not OF the
spectacular character to call for politi
cal discussions or to attract effort from
politicians in the passage of remedial
I legislation. The formidable attacl;
upon our judiciary now is that the
Judges do not respond sufficiently to
popular opinion. Tt is said that courts
are interposing their obstructive pow
err to the enforcement Of legislation
looking to the relief of the oppressed
by declaring laws unconstitutional
and by so-called judicial legislation
Interpreting into statutes words not
intended by the legislature. l do not
intend to discuss these charges al
though IL reduced to specific cases it
would be easy to show many of them
! to be unfOanded.
! =. The Judicial Recall.
: For the purpose of this discussion
may admit that courts have erred in
this regard, have unduly broadened
or have given such statutes wrong
construction. How is it proposed to
remedy these wrongs? In one of the
/ two ways either by the judicial recall
! of by the recall of judicial decisions.
! Let US examine these remedies separ.
ately. .s- 49,. .. .-
In the remedy by judicial recall it
Is proposed to provide by law that
whenever judge has so discharged
his duties as to induce a certain per-
centage of the electorate to deem it
wise to remove him and that percent
age sign petition asking his recall
an election shall take place in which
the incumbent shall stand against
other candidates. and if he does not
secure plurality of votes he is ipso-
facto removed. l have pointed out
that under our form of government
and constitution many of the issues
arising before our courts are in effect
issues between the state and the in
dividual, between the majority and
the minority, cases in which the popu-
! lar interests might be greatly excited
| to secure favorable judgment BY
this system the question whether the
! Judge Is to be removed or not is to he
left to that majority that may be
! greatly aroused to secure from him a
| Judgment favorable to them. Could
a system be devised better adapted to
! deprive the Judiciary of that indie.
pendence without which the liberty
and other rights of the individual can
not be maintained against the govern.
ment and the majority?
But it is said we may have corrupt
! Judges. How are we going to get rid
OF them? They can. be impeached
Under our present system But that
/ ~ too cumbersome. Well, amend the
procedure of Impeachment. Create
tribunal Tor removal OF judges for
cause. Give them an opportunity to
be heard and by an impartial tribunal
but do not create a system by which
In the heat of disappointment over
lost cause the defeated litigants are to
decide without further hearing o.
| knowledge whether the Judge who de-
| cides against them is to continue
Office. It would be hard to devise a
more unjust and ineffective method OF
purifying the Judiciary or one less
likely to promote courage OF homes
conviction.
| Recall of Decisions.
Let us examine the other metho
| proposed for the reform of the judici-
airy. That is recall of decisions. By
this method when a supreme court
has found law intended to secure
public benefit to be invalid because it
infringes some constitutional limita.
tion, the decision is to be submitted
to q vote of the qualified electors and
II a majority of them differ with the
court and reverse the decision the law
Ii to be regarded and enforced as va
lid and constitutional