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original jurisdiction on the Court of Ap-
peals, but gave that power to the legisla-
ture with respect to the intermediate court.
It suggests to me when an occasion arises
where the legislature did want to create
original jurisdiction in an appellate court,
that you have really restricted them to
fixing that in the intermediate appellate
court because obviously that is much easier
to do than amend the constitution and fix
it in the court of appeals.
THE CHAIRMAN: Delegate Mudd?
DELEGATE MUDD: We recognize we
have, Delegate Bamberger, and after hear-
ing from several judges of the Court of
Appeals and intermediate court of appeals
and debating the matter within Committee,
our objective was to maintain and perpetu-
ate our Court of Appeals as the court of
last resort and to establish that that appel-
late jurisdiction responsibility would not
be interfered with by delegation of original
jurisdiction to the legislature. It was our
further intention to have the intermediate
court of appeals absorb the workload if it
should develop. That was the considered
view of the majority.
THE CHAIRMAN: Delegate Bamberger.
DELEGATE BAMBERGER: Would it
be possible for the legislature to create
original jurisdiction in the intermediate
appellate court and at the same time pre-
clude review of that by the Court of Ap-
peals.
DELEGATE MUDD: Yes.
DELEGATE BAMBERGER: Section
5.06 provides that the General Assembly
may increase the number of members of
the intermediate appellate court over the
minimum of five. But the legislature when
it does that may not at the same time by
law provide that they would sit in divi-
sions. That is an exclusive rule-making
function. Why would you not allow the
General Assembly to provide by law that
the court could sit in divisions?
DELEGATE MUDD: As I recall, the
consideration in Committee was that the
use of the intermediate court of appeals in
division work could be better accommodated
by rule-making power than by the legisla-
ture. It is conceived and our Committee as-
sumed that this court is going to be ex-
panded jurisdictionally and with manpower.
But once it is, and the rules provide that
this court sit in divisions, that is more
appropriately a rule-making power than
one prescribed by law.
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THE CHAIRMAN: Delegate Bamberger.
DELEGATE MUDD: It is use of man-
power actually.
DELEGATE BAMBERGER: In other
words, if the legislature decided that the
work of that court required that its mem-
bership be increased they could increase it
to nine, let's say, as a number, but they
would have to rely upon some assurance
from the Court of Appeals that it would
divide them into panels of three.
DELEGATE MUDD: Exactly, but all
the testimony before our Committee, Dele-
gate Bamberger, has been to the effect that
there has been complete harmony between
the court in its exercise of its rule-making
power and the legislative leaders in the
exercise of the legislative functions regu-
lating courts and we thought that com-
patibility could continue within this field.
THE CHAIRMAN: Delegate Bamberger.
DELEGATE BAMBERGER: Except
that power is now really a concurrent
power which is a great lever toward com-
patibility. Did you consider giving both
the Court of Appeals and the General As-
sembly the power to have the intermediate
court sit in divisions.
DELEGATE MUDD: I do not think that
concurrent power to the General Assembly
and by rule-making as applied to the inter-
mediate court sitting in divisions was dis-
cussed.
THE CHAIRMAN: Delegate Bamberger.
DELEGATE BAMBERGER: I have
some questions with regard to sections 5.08
and 5.10. I take it that 5.08 concerning su-
perior court provides for a superior court
judge resident in each county, and in the
district court where the district encom-
passes more than one county, there must
be a district court judge not just resident,
not even necessarily resident, but who sits
in that district. Does 5.08 require that
there be a superior court sitting, function-
ing as a court in each county? .
DELEGATE MUDD: Yes, that is our
interpretation of it.
THE CHAIRMAN: Delegate Bamberger,
any further questions?
DELEGATE BAMBERGER: Yes. Is
there then not some problem of construc-
tion presented by comparison of section
5.08 and 5.10? Section 5.10, on line 35
speaks about residence of the judge, but
is much more specific in lines 38 and 39,
when it says "shall sit regularly."
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