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When the Committee on Preamble and
Personal Rights drafted section 7, they did
not know whether by law would mean gen-
eral law or whether it would permit gen-
eral variations.
I submit that this Committee has indi-
cated that they want for this to be applied
by public general law.
DELEGATE PENNIMAN: I do not
think what was done in an amendment
which was later defeated can be binding
on what was kept. I would prefer to have
some kind of expression by the group so
that I do know what the meaning of the
word "by law" is. Otherwise I will get into
the morass of stating meanings.
DELEGATE WAGANDT: I think I
would like to offer an amendment as fol-
lows: On line 8 in section 7 on page 3,
add the word "public general" after the
word "by", so this will now read "and in
the manner as shall be permitted by public
general law."
(Whereupon, the motion was duly sec-
onded.)
DELEGATE J. CLARK (presiding) :
Does everyone understand that? This will
be Amendment No. 11.
Are you ready for the question?
Delegate Case.
DELEGATE CASE: Mr. Chairman,
with your indulgence, I would like to ask
Delegate Clagett to answer a question or
two about this if he will take the floor and
yield.
DELEGATE CLAGETT: I yield.
DELEGATE CASE: Delegate Clagett,
under the shared powers concept of the
local government section, is it not true that
a local unit of government, let us confine
it to a county, would have been able with
or without this particular provision in the
Constitution to waive or abrogate the doc-
trine of sovereign immunity?
DELEGATE CLAGETT: Yes.
DELEGATE CASE: Is is not also true
as the Committee Report now reads without
the Clagett-Wagandt amendment the same
thing would be true?
DELEGATE CLAGETT: No. I do not
think the same thing would be true because
here you have a conflict between what is
judicial and what is legislative. Because
of that conflict, I think that public general
qualifies the situation, but if you find that
there is no conflict between judicial and
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legislative function, then the answer would
be yes.
DELEGATE J. CLARK (presiding) :
Delegate Case.
DELEGATE CASE: So that the answer
to that question is yes. So the Committee
can follow this, let me state what I am
getting at. If there was nothing in the
constitution and the shared powers concept
is adopted, then a county could waive the
doctrine. Under this section the county
could still waive the doctrine if it wanted
to in its wisdom. The proposal that has
been made by the Wagandt amendment in
effect withdraws that power and would re-
quire that any waiver of the doctrine shall
be done at a state level by public general
law.
DELEGATE J. CLARK (presiding) :
Delegate Clagett.
DELEGATE CLAGETT: Yes.
DELEGATE J. CLARK (presiding) :
Delegate Case, you may proceed.
DELEGATE CASE: So that, Delegate
Clagett, what you have said up to this
point is that your amendment, or the
Wagandt amendment which you really
thought of first, would carve out another
exception to the shared power concept that
we all fought so hard for. It would, in
effect, say that in this area, the exemp-
tion could only be provided by public gen-
eral law.
Now, you are the greatest advocate in
this chamber for the shared power con-
cept, and I want to know why you think
there ought to be an exception to it in
this particular case. It seems to me, if I
may say so, that this is a kind of govern-
mental power that we can safely leave to
the local political subdivisions.
DELEGATE J. CLARK (presiding) :
Delegate Case, you have fifteen seconds to
give an answer.
Delegate Clagett.
DELEGATE CLAGETT: The answer to
your question is that we are dealing with
suits against the State in line 6, and its
instrumentalities and political subdivisions.
I believe in this area of dealing with sov-
ereign immunity that there is a preemp-
tion, and the State would be preempting
the field. When it preempts the field, it
should be required to act by general law
across the board affecting all of the in-
strumentalities or political subdivisions
uniformly.
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