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THE PRESIDENT: Delegate Marion.
DELEGATE MARION: Delegate Weide-
meyerr you asked several questions, but in
posing the question you stated the lan-
guage incorrectly as it would read. It
would not read "matters subject to rule"
but "matters enumerated in this section".
It is designed to continue what we had
as approved in the first and second read-
ings, a concurrent power in the Court of
Appeals to act by rule, and the General
Assembly to act by law. The power for
the Court of Appeals to act by rule is
contained in the present Constitution, and,
in effect, the same situation, the concur-
rent rule-making power, is provided in the
present Constitution.
THE PRESIDENT: Delegate Weide-
meyer.
DELEGATE WEIDEMEYER: As you
say, the General Assembly shall, by law,
have concurrent power to regulate matters
subject to rule, enumerated in this section.
The rule-making power is given by the
first sentence to the Court of Appeals and
to regulate that rule-making power would
mean that the General Assembly would
have no more power than to say when they
had to do it or if they would have to put
it up in a book, in brown cover, black
cover, et cetera.
That is all I see, that you have come
here and, as I see it, it has stripped the
understanding that we had that there was
to be that concurrent power.
THE PRESIDENT: Delegate Weide-
meyer, I think you have inadvertently, but
nevertheless incorrectly, stated the results
of the discussion in the Committee of the
Whole. It was, as the Chair recalls it, and
certainly as this section provides, both be-
fore and after the Bothe Amendment,
clearly intended that in the areas set out
in this section, there was to be concurrent
power, except in those instances elsewhere
where there is a specific provision for the
Court of Appeals to act by rule, in which
event, there would be no concurrent power
by the General Assembly as, for instance,
the power of the Court of Appeals to pre-
scribe by rule for the method of selecting
lawyer members of nominating commis-
sions or for secret ballots for lawyers on
retention of judges.
Some of those matters are specifically
designated to be prescribed by rule and not
to be subject to the concurrent power of
the legislature to prescribe by law. There
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are a very limited number of those cases,
but they do exist.
Delegate Weidcmeyer.
DELEGATE WEIDEMEYER: Thank
you, Mr. President.
THE PRESIDENT: Is there any fur-
ther discussion?
Delegate Burdette.
DELEGATE BURDETTE: It seems to
me that the problem here that Delegate
Weidemeyer has identified, but it is very
hard to follow from this language, is in
lines 31 and 32.
As I understand the language, the Gen-
eral Assembly by law shall have concur-
rent power. That strikes me as quite dif-
ferent from saying in the constitution that
the General Assembly shall have concur-
rent power. It says that the General As-
sembly can pass a law. Maybe it comes to
the same thing, but it is certainly not a
constitutional power. I wonder if the ef-
fect of the amendment is not to remove the
so-called concurrent rule-making power
from its constitutional status?
THE PRESIDENT: Delegate Marion.
DELEGATE MARION: Delegate Bur-
dette, the amendment is certainly not de-
signed to have that effect. The sentence
has posed problems before.
This language was drafted by Mr. Ad-
kins, the staff advisor for the Judicial
Branch Committee. It is entirely possible
that it does not say as well as possible
what we intend, but the intention is to
make no substantive change, but to clarify
the language of the second sentence of
this section, and to avoid the difficulty
posed by the words "provide" and "pre-
scribe", neither one of which seems to fit
very aptly when this sentence is read.
THE PRESIDENT: Delegate Burdette.
DELEGATE BURDETTE: If we were
trying to save the constitutional status of
the concurrent power, we would probably
need to get the power somewhere more
closely to the General Assembly.
Now, I wonder, that is, what we are
trying to say is the General Assembly
acting by law. I frankly think that the
amendment can be construed to reverse the
language which is here.
THE PRESIDENT: Delegate Marion.
DELEGATE MARION: Is what you are
suggesting that the words, "by law", be
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