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you have not. It may well have been just
the day before, the week before, last month,
an identical case came up, marked unpub-
lished, was presented before the court and
the opinion came out unpublished and the
attorney general knows this, knows what
the court's feelings are in this matter and
you are at a disadvantage.
I know that one of the objections to pub-
lishing all the cases would be that we would
run out of room. However, I think it would
be far better to run out of library space,
but enable all of the attorneys to have the
advantage of knowing what opinions were
coming out of the courts and not just re-
stricting it to the state's attorney and the
attorney general.
DELEGATE JAMES (presiding) : Chair-
man Mudd.
DELEGATE MUDD: Mr. Chairman and
ladies and gentlemen of the Committee; I
rise in opposition to this amendment. I
readily admit and agree that the propo-
nent of the amendment has an arguable
point and he has discussed the matter with
me and I am personally sympathetic with
the problem. However, I do not believe that
it is necessary to try to correct this, as
well as some other minor problems in the
constitution.
The pertinent provision of the present
Constitution is that provision shall be made
by law for publishing reports of court or-
ders, the court of the term of appeals and
intermediate court of appeals, which the
judges thereof respectively shall judge as
proper for publication.
The proposed amendment of course goes
much further than the present constitu-
tional provision and is designed to make
obligatory that all opinions, however incon-
sequential and of no new matter be pub-
lished.
We feel that this is not a matter that
warrants constitutional stature and sympa-
thetic as we are with the problems posed by
this amendment, we do believe it can be
accomplished much easier than adding this
new section to the judicial article, and I
therefore oppose the amendment.
DELEGATE JAMES (presiding) : Dele-
gate Willoner.
DELEGATE WILLONER: Mr. Chair-
man, while I agree with Mr. Mudd, that
was a 1966 amendment giving the Court of
Appeals the discretion whether or not to
publish the opinions, it was in the 1951
Constitution that carried over in the suc-
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ceeding Constitutions, and as a result, we
have written published opinions of the
Court of Appeals.
In 1966, they changed that and in 1966
and 1967, we did not have the published
opinions of the Intermediate Court of Ap-
peals. I frankly do not know anything that
the Court of Appeals has failed to publish.
The point simply seems to be that if we do
not provide this in the constitution, they
will not be published. It is a very simple
question and I think the Convention ought
to answer it affirmatively.
(At this point, President H. Vernon Eney,
Chairman of the Committee of the Whole,
resumed the Chair.)
THE CHAIRMAN: Delegate Marvin
Smith.
DELEGATE M. SMITH: May I suggest
to my brother here, Mr. Chairman, that
actually the 1966 amendment simply made
provision for the court of special appeals.
Prior to 1966 the provision read, "provision
shall be made by law for publishing a re-
port of all causes argued and determined
by the Court of Appeals, which the judges
shall designate as proper for publication."
You know, sir, and I know that for many
years it was customary on the part of the
court to designate a number of cases not
to be reported, and such was the case up
until some ten or fifteen years ago. I sub-
mit to you, sir, that this is not a matter of
the Constitution but a matter for the Gen-
eral Assembly and the bar association.
THE CHAIRMAN : Is there any further
discussion? Delegate Case?
DELEGATE CASE: Mr. Chairman, la-
dies and gentlemen of the Committee of the
Whole: Since the focus of this argument
has been placed on the court of special ap-
peals, and because I had made some part in
the creation of that court, I should like to
perhaps neither speak for nor against the
amendment but to set the record straight
and tell you exactly what the facts are.
It is true that the court of special ap-
peals did not publish a number of its opin-
ions in the past. The reason for this was
that the cases that come before that court,
as you all know, are all criminal cases, and
these cases generally speaking are what we
lawyers call fact cases. That is to say, they
involve no new and novel question of law,
but only questions of fact.
At the outset, the judges of that court,
with the idea of saving the state money,
did not publish some of these opinions, be-
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