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In your proposed amendment for nomi-
nation —
THE CHAIRMAN: That is not under
discussion at this point, Delegate Mitchell,
5.01, 5.11.
DELEGATE MITCHELL: I will hold
that.
DELEGATE JOHNSON: I have that in
the minority report specifically in section
5.11. I feel because there are other amend-
ments pending from 5.01 through 5.10, per-
haps we could take care of them now and
I would have an opportunity when we
reach 5.11 to give the minority report on
that subject at that time.
THE CHAIRMAN: I think it would be
. better if you would give the report now so
that the delegates would have in mind the
position of the minority in considering any
other amendments.
DELEGATE JOHNSON: All right.
THE CHAIRMAN: You may proceed,
now.
DELEGATE JOHNSON: Unless there
are any other questions on 5.01 —
THE CHAIRMAN: We will find that
out later. Go ahead with 5.11.
DELEGATE JOHNSON: Mr. Chairman
and ladies and gentlemen of the Committee
of the Whole:
May I call your attention to section 5.11
and ask that you have placed before you
the majority report with respect to 5.11,
and the minority report and the proposed
amendment with respect to section 5.11.
I think it is important that we read this
together to fully understand the impact
that the majority will have on our judicial
system.
Let me say first that section 5.11 as pro-
posed by the majority states that there will
be commissioners of district courts, and
certainly there must be and should be but
in addition they provide that the qualifica-
tions of the commissioners will be pre-
scribed by rule — and this word rule is very
important at this point. It is the first time
it is used in significant manner in this
article. I think that you have to look at the
word rule, together with section 5.31 of
the majority report, inasmuch as section
5.31 provides that although there will be
concurrent rule making power, that is, con-
current rule making power between the
court and the legislature in most matters,
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those matters that are specifically set forth
in Article V or in the constitution to be
decided by rule will be exclusive rule mak-
ing powers.
This is a departure from our present sys-
tem, a wide departure, I submit; and it is
a departure from every other system that
we have had an opportunity to study across
the nation. Section 5.11 as proposed by the
majority provides specifically for the ju-
dicial establishment of the office of com-
missioner.
In other words, the majority proposes
that the judiciary who are first appointed,
or whose office is set up by the legislature,
would then in turn appoint or create the
office of commissioner.
Now, in addition to creating the office of
commissioner, which we feel is certainly a
legislative function, section 5.11 in the ma-
jority report also sets forth that the com-
missioner of the district court will serve
at the pleasure of the judge of that dis-
trict court, that is how long the particular
commissioner shall hold office, and when he
shall leave office, is left strictly up to the
court. In our view this is clearly a legis-
lative function. First of all, we think that
the office of commissioner should be filled
in a manner prescribed by law and we
would hope that the legislature would set
up the profession of commissioner so that
there would be tenure to the position and
a merit system with respect to the office.
Mr. Chairman, I do not believe that I have
the specific amendment before me, because
I had anticipated that we were going to
deal with 5.01 this morning —
THE CHAIRMAN: I think you repro-
duce it on page 4 of your report, do you
not?
DELEGATE JOHNSON: Yes. Unfortu-
nately, I do not have that before me. I
have some notes. I wonder if the Chair
would excuse me long enough to get them.
THE CHAIRMAN: Certainly.
DELEGATE JOHNSON: Mr. Chairman,
ladies and gentlemen: Hopefully, without
repeating what is contained in the report
of the minority, let me add that it is the
desire and wish of the minority to see
some check on judicial authority with re-
spect to the administration of courts; and
even more importantly to remove the
courts from what we consider to be a legis-
lative function. We feel that this may be
affected in part by having commissioners
selected according to the procedures estab-
lished as provided by law.
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