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Courts should be appointed by the courts
and by the judges for whom they will per-
form judicial functions.
However, any doubts I may have had
were completely resolved when I read in
the papers a report of a hearing before
the Judiciary Branch Committee of this
body in which I understand it to have been
testified by several clerks, not from Balti-
more City, that they felt that people would
not get fair justice if the clerks were not
elected.
This statement, if it was made, com-
pletely shocked me. Certainly we do not
want a bicameral judicial system in this
state. Certainly we do not want a situation
where a court clerk can say to the judge:
the people elected me, you only ran against
yourself, so you better let me make this
decision.
I ask that you vote in favor of the amend-
ment, and leave justice in the hands of the
judges.
THE CHAIRMAN: Is there any further
discussion?
(There was no response.)
Are you ready for the question?
(Call for the question.)
»
The question arises on the adoption of
Amendment No. 55; the Clerk will ring the
quorum bell.
The question arises on the adoption of
Amendment No. 55 to Committee Recom-
mendation JB-1. A vote Aye is a vote in
favor of the amendment, a vote No is a
vote against. Cast your vote.
Have all the delegates voted? Does any
delegate desire to change his vote?
The Clerk will record the vote.
There being 48 votes in the affirmative
and 83 in the negative, the motion is lost
and the amendment is rejected.
Are there any further amendments to
section 5.30? The Chair hears none. Are
there any amendments to section 5.31?
Mr. Clerk, do you have any amendments?
Delegate Johnson, do you still desire to
offer your amendment?
DELEGATE JOHNSON: Is that with
respect to section 5.31?
THE CHAIRMAN: It is.
DELEGATE JOHNSON: It is my opin-
ion it is not necessary at this time.
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THE CHAIRMAN: Thank you, sir.
Is there any other amendment in section
5.31?
Delegate Willoner, do you still desire to
offer your amendment CO?
DELEGATE WILLONER: I do, Mr.
Chairman.
THE CHAIRMAN: The pages will dis-
tribute amendment CO. This will be Amend-
ment No. 56: The Clerk will read the
amendment.
READING CLERK: Amendment No. 56
to Committee Recommendation JB-1, by
Delegates Willoner and Stern: On page 10
section 5.31 Rule-making power line 18
after the period insert the sentence: "How-
ever, a rule shall not supersede a law un-
less at least two years have elapsed since
the effective date of the law."
THE CHAIRMAN: Amendment No. 56
having been moved by Delegate Willoner
and seconded, the Chair recognizes Dele-
gate Willoner to speak to the amendment.
DELEGATE WILLONER: I rise to op-
pose the exclusive rule-making power. I
opposed it on a very strong basis. Essen-
tially this amendment goes to the theo-
retical objection I have to the present sec-
tion 5.31 and that is that historically, not
in Maryland, but generally speaking, his-
torically the law-making power lies with
the representatives of the people in the
legislature. Under the proposed 5.31 it is
concurrent power and while this is a de-
parture which is a concept of separation
of powers in the State of Maryland, it has
in fact in the past worked reasonably well
in that the power to make laws by the
court, they call it rule-making power, but I
think it is law-making power, that this
power be shared by the courts and legis-
lature.
There is a technical fallacy that has
been pointed out in one of the books that
we received up at Goucher, "The Judicial
Process in Maryland", by Dr. Elbert M.
Byrd, Jr., where he indicates that there is
a "see-saw" objection, theoretical see-saw,
and I will read from that: "In theory this
'see-saw' appears to be quite possible, al-
though practical and political considera-
tions are likely to prevent its development."
It seems to me we should not risk this
problem on the hope that practical and
political considerations would avoid it. This
would not affect it. But where the legisla-
ture acts and essentially overrules the rule,
the legislature could not the next day come
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