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DELEGATE MORGAN: That is correct.
THE CHAIRMAN: Are there any fur-
ther questions, Delegate Bamberger?
DELEGATE BAMBERGER: Chairman
Morgan, I would ask you to think again
about your answer to Delegate Chabot's
question which asked you whether the gov-
ernor or the attorney general would decide
whether the State would appear as an
amicus in some case in which it was not a
party and whether the governor or the at-
torney general would decide whether the
state would press an appeal in a particular
case.
I direct your attention to page 2 of Com-
mittee Memorandum EB-2 and particularly
lines 32 to 35 in which I understand you to
define the role of the attorney general as
a lawyer for the executive branch, and not
a policy maker. I suggest to you that if the
attorney general is the one who decides a
position which the State shall take in the
case in which it is not a party that he is,
in effect, making executive policy and that
if it is the attorney general who would
decide whether to press an appeal, he is
again making policy.
My question to you is whether or not it
is not the intention of the Committee that
the attorney general is a lawyer for the
governor in the State and that he acts pur-
suant to the advice and requests, pursuant
to the instruction of his client?
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: I really think
that the attorney general is a constitutional
officer and he is given constitutional func-
tions and duties as the chief legal officer
of the State and it seems to me that he
has certain independent duties that he has
got to do independently and he is not par-
ticularly responsible to the governor except
when he is serving in a legal capacity for
the governor.
THE CHAIRMAN: Delegate Morgan the
Chair is puzzled. In the discussion that
occurred last week dealing with this same
subject, several illustrations were given.
There was a colloquy between Delegate
Byrnes and Delegate Henderson, as the
Chair recalls it, in which an illustration
was pointed out of a case pending in court
and a problem as to whether the decision
of the lower court should be appealed.
It was the Chair's recollection that it
was stated very specifically that it would be
the function of the governor as the client
representing the State and the chief execu-
tive officer to determine whether an appeal
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should or should not be taken and that the
function of the attorney general was that
of lawyer performing the usual function of
a lawyer representing a client.
This arose during a discussion of the
Committee Report with respect to the office
of the attorney general.
I am puzzled. Are you intending to in-
dicate now a different position of the Com-
mittee with respect to this question?
DELEGATE MORGAN: Mr. Chairman,
my recollection of that discussion was that
it was the attorney general who would de-
cide whether to appeal the case or not.
THE CHAIRMAN: The question was
put by Delegate Byrnes with respect to a
case pending in the U. S. District Court
and I think Judge Henderson was the one
who commented on it, and I thought the
general conclusion was that the question
of an appeal was a question of state policy
which would obviously be decided by the
governor.
I may be wrong in that, but that was the
Chair's recollection.
Delegate Henderson, do you remember
the colloquy?
DELEGATE HENDERSON: I remem-
ber it very well. The Chair has stated my
position quite clearly. If it is a matter of
policy as to whether or not an appeal shall
be taken, the governor in the role of client
can control that.
But if it is a question of a legal opinion,
expressing his view as to what the law is,
then in that field the attorney general
would be supreme but, certainly, not in
matters of state policy involving appeals
and I thought that was made clear last
week.
THE CHAIRMAN: Delegate Morgan.
DELEGATE MORGAN: I am sorry that
I just remembered the conversation the
other way. I thought that it was decided
that it was the attorney general who de-
cided whether to appeal or not to appeal.
Apparently I was wrong.
THE CHAIRMAN: You were not mean-
ing to indicate that the Committee had
consciously taken a different position on the
matter from that which was before the
Committee of the Whole last week?
DELEGATE MORGAN: I was not, Mr.
Chairman.
THE CHAIRMAN: Delegate Gallagher.
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