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THE CHAIRMAN: The amendment hav-
ing been seconded, the Chair recognizes
Delegate Mitchell to speak to the amend-
ment.
DELEGATE MITCHELL: Mr. Presi-
dent and fellow Delegates: Delegate Gill
had also prepared an amendment similar
to this, and wishes to join in the author-
ship of this amendment. We wish the record
to so state.
THE CHAIRMAN: Please mark your
copies "Amendment 26, submitted by Dele-
gates Mitchell and Gill."
Delegate Mitchell, you may proceed.
DELEGATE MITCHELL: Mr. Chair-
man, under the provisions of this amend-
ment, beginning at line 45, section 5.14,
where the Committee recommendation
would read, "The governor shall appoint
one of the nominees within 60 days after
receiving the list," the rest is deleted.
I believe that this government was
founded on the cardinal principle of separa-
tion of powers; that there be three co-equal
branches, each being a check on the other,
in order that the will of the people would
not be thwarted; and one of the problems
in any government is the abuses of power.
We believe that to place a judge on the
nominating commission, or to provide that
if the governor fails to appoint one of the
nominees within 60 days after receiving
the list his power to make the appointment
shall end and the chief judge of the Court
of Appeals shall appoint one of the nomi-
nees is in violation of the constitutional
mandate that there shall be separation of
powers.
Not only is that principle a cardinal
principle of our federal government, but in
Article VIII of our present Constitution
there is a mandate. There is not only the
provision of the separation of powers be-
tween the legislative, the executive and
judicial branches of government, but there
is this wording: "And no person exercising
the functions of one of said departments
shall assume or discharge the duties of any
other."
Now, in the Personal Rights and Pre-
amble recommendations will come the rec-
ommendation for repetition of Article VIII
in the Constitution which we shall finally
adopt, and therefore, it is our considered
judgment that to put the alternative power
of appointment into the hands of the chief
judge of the Court of Appeals, if the gov-
ernor should fail to act, is a violation of
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that expressed mandate; and further, that
it is highly irregular and contrary to our
system of government to have a judge se-
lecting or appointing another judge.
We believe that the people have the
check through the governor on the action
of the selection and appointment of the
judges, and therefore for those reasons we
recommend that this amendment be adopted.
THE CHAIRMAN : Delegate Mudd.
DELEGATE MUDD: Mr. Chairman, la-
dies and gentlemen of the Committee: I
first respectfully suggest to the proponents
of this amendment that adding the word
"shall" in line 45 in my judgment adds
nothing to section 5.14. I call attention to
the fact that in line 38, the first line of
the section, 5.14, we say, "The governor
shall fill a vacancy". We feel that that is as
obligatory as we can make it.
The last sentence of section 5.14 was not
added by the Committee in an effort to
jeopardize or take away from the gov-
ernor or any branch of the government the
appointive power. The sole purpose of this
last sentence to section 5.14 was to provide
some alternate measure of appointment so
that a vacancy might not continue in-
definitely.
I respectfully suggest that the proposed
amendment is vulnerable to this arugment,
that it proposes no alternative provisions.
It is improbable but it is possible that a
governor, notwithstanding the word "shall",
may fail to make an appointment. Our ob-
jective is to provide for it in the event he
fails.
It is not the objective of the Committee
to give more power to a judge or to take
anything away from the governor. Our ob-
jective is to supply a void.
The section would be incomplete without
that sentence, and in our humble judgment,
hanging, if the Governor did not do what
we say he shall do; and may I also sug-
gest to the proponents of this amendment
that the last state of the union, namely
Utah, adopted the merit system or the Mis-
souri plan for selection and tenure of
judges. It did constitutionally adopt this
identical provision, which says that the
judge shall appoint in the event of the fail-
ure of the governor to do as he is required.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Would you
yield to a question?
DELEGATE MUDD: Gladly.
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