fined to the constitutional amendment pro-
cedures that this Convention will adopt. I
see what you are suggesting because it is
always .done by bill.
DELEGATE HARGROVE: Done by
bill, as I understand it, which, has to be
passed by the legislature?
DELEGATE BYRNES: Our answer is
no, because whether or not it is on the
same piece of paper as a regular bill it is
still in essence a constitutional amendment
which, I think, would be governed by the
constitutional amending procedure adopted
by this Convention.
THE CHAIRMAN: Delegate Grant.
DELEGATE GRANT: In response to a
question by Delegate Miller, you stated or
confirmed her remark that a number of
states had this by legislation rather than
constitutional provision. Am I correct in
understanding that this would be done by
legislative rather than constitutional proc-
ess and authorized by the legislature?
DELEGATE BYRNES: I think I should
have said further in answer to Delegate
Miller, I think my understanding is that
the states that have it pursuant to consti-
tutional authority. I do not think there are
any states that simply have constructed in
the statutory code of their states initiative
or referendum. I think these are very
fundamental reserve powers which must be
continued in the constitution authorizing
the legislature to enact the details of such
a proposal.
DELEGATE GRANT: If the constitu-
tion were to say something to the general
effect that the General Assembly could pre-
scribe by law a method for initiative, would
this be sufficient authority to the General
Assembly to then proceed to do so if they
so desired?
DELEGATE BYRNES: My only con-
cern is with the way you phrased it; it
seems almost too short. I think, expanding
on that a bit, you could authorize the legis-
lature to enact it. I would like to point out
that there was a delegate idea proposal,
submitted by Delegate Gallagher, not that
he necessarily endorsed it but he wanted
to put it before us, which phrased initia-
tive in this way: he made the suggestion,
that initiative be considered part of the
legislative process. I do not think there
would be much more implementation other
than the mere saying the legislative power
is vested in the people, I mean, vested in
the legislature, consisting of two houses |
and then with one clause state the initia-
tive procedure.
I think perhaps you may be right. One
clause may be enough if it is commonly un-
derstood indirect and direct, but simply
initiative means—
THE CHAIRMAN: Delegate Sherbow.
DELEGATE SHERBOW: This question
of Delegate Byrnes. On page 6, beginning
on line 10, you speak of submitting the
law by title and then say it is one that
was prepared by the legal department of
the state subject to review by the courts.
Does this mean you are asking the courts
to review something which has not yet even
been approved by the people?
DELEGATE BYRNES: Before I an-
swer, I would first of all thank you for
pointing that out, because this is something
1 failed to mention, one of the additional
safeguards we have is this proscription
that the language be submitted to the De-
partment of Law for review.
In answer to the question we think our
intention is clear that by "subject to re-
view by the court," we mean at any point
in the proceeding, so that if someone
wanted to challenge the course which is
leading to the ballot, at any point, some-
one could go to the court and say this is in
violation, for example, of subsection (d),
which describes reapportionment and such
other things as are proscribed by (d).
DELEGATE SHERBOW: Are you not
asking the courts to pass, for example, on
the question of the constitutionality of the
law even before it is approved by the
people at the ballot?
DELEGATE BYRNES: I would think
any such question would be open to review.
DELEGATE SHERBOW: You would
expect them to have a justifiable issue with
advocates and proponents before the court
on its way to the Court of Appeals before
the people even voted on that particular
law.
DELEGATE BYRNES: I would think
the answer would be that it would be some
sort of injunctive proceeding, someone
would seek to enjoin placement on the bal-
lot of the issue and this would raise the
question whatever the objection might be.
DELEGATE SHERBOW: My question
goes further. Is this not a mandatory re-
quirement that it be subject to review by
the courts before it is even voted on by |
