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THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: As I recollect, the
first part of your question was if we make
it mandatory upon the governor to appoint
and he fails to appoint, there possibly
would be redress through the courts. I had
a citation to a case a few days ago indi-
cating that it would be possible.
The further thought of the Committee,
if I recollect the last part of your question,
was that in the remote event that the gov-
ernor was unhappy with the list and ig-
nored the appointment for that reason, then
this was a method of insuring appointment
from the list the nominating commission
had prepared. That is the safeguard we
were trying to give to the list, rather than
allowing the governor to circumvent the
list.
THE CHAIRMAN: Delegate Mudd, the
Chair is in doubt as to your answer. If I
understood Delegate Bamberger's question,
were you saying that a court could or
could not mandamus the governor?
DELEGATE MUDD: I said, Mr. Chair-
man, that on the strength of the citation
that I used the other day, it has been done.
THE CHAIRMAN: What did they make
the governor do?
DELEGATE MUDD: In that case — I
have forgotten the citation, now — but
there was a mandamus requiring him to
make an appointment. I have forgotten the
name of the case. It was many, many years
ago.
THE CHAIRMAN: I wondered what
would happen if he refused.
DELEGATE MUDD: I guess he would
go to jail. I do not know.
THE CHAIRMAN: Delegate Pullen, do
you desire to speak in opposition or in
favor.
DELEGATE PULLEN: In favor.
THE CHAIRMAN: You may proceed.
DELEGATE PULLEN: According to
my recollection, Delegate Grant the other
day reminded our esteemed colleagues that
a mandamus was issued, or whatever you
call it, on the governor about 1964 or 1965
to perform his duties. My recollection also
is that the Chairman agreed that that was
done.
It seems to me that as a layman this is an
answer to the problem, and not the as-
sumption of the authority and duties and
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responsibilities of the governor by the
judiciary.
As a matter of fact, I think that the
matter is not too great a problem, except
for its being an invasion of the responsi-
bilities of one branch of government by
another. Therefore, I should like to support
the recommendation.
THE CHAIRMAN: Does any other dele-
gate desire to speak in opposition?
Delegate Wagandt.
DELEGATE WAGANDT: Would Dele-
gate Mudd yield to a question?
THE CHAIRMAN: Delegate Mudd, will
you yield to a question?
DELEGATE MUDD: Yes, Mr. Chair-
man.
THE CHAIRMAN: Delegate Wagandt.
DELEGATE WAGANDT: Did you con-
sider having the nominating commission
make the appointment, instead of the chief
judge, in the case where the governor fails
to act?
THE CHAIRMAN: Delegate Mudd?
DELEGATE MUDD: No. I recollect no
discussion of such a proposal by the
Committee.
THE CHAIRMAN: Delegate Wagandt.
DELEGATE WAGANDT: Would that
be an acceptable compromise on this par-
ticular issue, or do you see some pitfall
in it?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Well, personally I
think it would be much better for the chief
judge of the Court of Appeals to exercise
that final authority than for the nominat-
ing commission to go beyond the purpose
and intent that our recommendation
thought should be the function that it
should serve. The commission should make
recommendations in the form of a list, and
not exercise the appointive power.
THE CHAIRMAN: Does any delegate
desire to speak in favor?
Delegate Gill.
DELEGATE GILL: Mr. Chairman.
THE CHAIRMAN: Delegate Gill.
DELEGATE GILL: Originally the in-
tent of my amendment was to strike the
last sentence in line 14, because it says,
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