|
I think that we have to look at this in
the light of the possibility that the judicial
budget, the judicial package, may or may
not be subject to legislative review.
There is some question in my mind, and
I think in most minds, concerning to what
extent the legislature is going to be able to
cut or scrutinize or examine the judicial
budget. In our view if the district courts
are given carte blanche with respect to the
selection of commissioners, there may in
fact be no way that irresponsible action, if
any, may be curbed.
The Committee of the Whole should know
that a number of judges have expressed a
desire not to see such matters as the selec-
tion of commissioners within their control,
and prefer that it be and remain a legisla-
tive function.
In our view this will help keep the courts
insulated from partisanship, without ham-
stringing their operations. We often asked
with respect to clerks and commissioners
whether or not, if these matters were left
to the legislature, this would in any way
impede the judicial administration and to
each and every question along that line the
judges responded emphatically no, that it
would not.
For that reason, and for the reasons con-
tained in the minority report, we would
prefer to see the creation of the office of
commissioner, and the tenure and the ap-
pointment of the commissioner established
by law, or by the legislature.
Let me hasten to add that by the same
token we sincerely believe and recom-
mend to the Committee of the Whole that
the power of the commissioner be deter-
mined by rule, as proposed in the majority
report, so that if the amendment of the
minority carries, as we urge this Commit-
tee to adopt, section 5.11 would read as
follows :
"The General Assembly may provide for
Commissioners of the District Court. The
number, qualifications, appointment, com-
pensation, and tenure of District Court
Commissioners shall be prescribed by law.
Commissioners may exercise power only
with respect to warrants of arrest, bail,
collateral, and incarceration pending hear-
ing, and then only as prescribed by rule."
We think that this particular section is
clearly divisible; the appointment and ten-
ure is clearly a legislative function, and
the power is clearly a judicial function.
We urge the Committee of the Whole to
give serious consideration to our position
in this matter.
|
THE CHAIRMAN: Are there any ques-
tions of the minority spokesman as to sec-
tion 5.11?
(There was no response.)
Any questions of the minority spokesman
as to any portion of court structure, sec-
tions 5.01 to 5.11?
Delegate Scanlan.
DELEGATE SCANLAN: Mr. Johnson,
I have two questions, one of which I asked
the Chairman of the Committee, and one
of which I neglected to ask him.
The first question, the one which I did
not ask Chairman Mudd is, are there any
precedents in other states for having com-
missioners appointed by the courts? I know
that in the federal system, the United
States commissioner is appointed by the
President of the United States. My ques-
tion is, is there any precedent among the
other states for what is proposed here?
My second question is the same one I
asked Chairman Mudd : what is the feeling
of the minority with respect to permitting
the commissioners to exercise other powers
apart from those specifically listed, both in
your proposal and in the majority proposal,
provided that those additional powers are
vested by rule? In other words, as the fu-
ture indicates the commissioners can be
trusted to do more, can this be given to
them by rule without amendment of the
constitution. Do you have any feelings
about that?
DELEGATE JOHNSON: To answer
your first question, we have not found any
state constitution that provides for ap-
pointment by the judiciary of a similar
function, such as commissioner, or for that
matter, if it is analogous, which we think
it is, clerks on the lower court. We have
not found any states that provide it. We
have only found a similar system existing
in a federal system.
To answer your second question, we did
not discuss this specifically in our minority
meeting, but it would certainly be my view
and I would be in favor of keeping it
general, or perhaps even providing that the
powers of the commissioners be general.
As far as I am concerned, personally,
you could say commissioners may exercise
those powers that are prescribed by rule,
and I am certainly in favor of the court
having the power to increase the power of
the commissioners.
THE CHAIRMAN: Delegate Henderson,
do you have a question?
|
