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THE CHAIRMAN: Does any other dele-
gate desire to speak in opposition?
Delegate Henderson.
DELEGATE HENDERSON: I would
like to say that perhaps Mr. Bamberger is
not aware of the present form of section
5.31, I believe it is, the rule making power,
which differs from the Convention draft.
It is now left to concurrent power so that
the last one who speaks on the subject
would have the final say. That could lead
to an endless chain, of course, but it is
hoped that this would be able to be worked
out. If the legislature should prescribe the
panels, I think it would be in the first place
a rather delicate matter for the Court of
Appeals to tell them no, and if they did
tell them no, the legislature would have
the option of changing it back and putting
in the panels.
In a field which is so primarily a matter
of judicial administration and convenience,
it seems to me that we should trust the
rules of the Court of Appeals and its rule
making power to do this sort of thing. Mr.
Bamberger is also a member of the Rules
Committee and he knows with what dili-
gence that body operates and how repre-
sentative it is of the sentiments throughout
the State. I hope that the amendment will
not prevail.
THE CHAIRMAN: Is there any other
delegate who desires to speak to the amend-
ment?
Delegate Johnson.
DELEGATE JOHNSON: May I speak
in favor of the amendment in this way;
it is really an answer to the statement, and
perhaps in contradiction to the statement
made by Delegate Henderson.
Rule 5.31, whereas it does in fact pro-
vide that there will be concurrent rule
making power between the legislature and
the court, by virtue of its first phrase,
where it states, "except as to matters spe-
cifically provided by this Constitution to be
prescribed by rule," means that wherever
the term "rule" is used in the Constitution
and specifically in Article V, it is exclu-
sively rule-making power in the court.
Therefore, Delegate Bamberger's argument,
and his amendment, is well taken.
THE CHAIRMAN: Does any delegate
desire to speak in opposition?
Delegate Dukes. /
DELEGATE DUKES: I rise to speak
in opposition to the amendment. There
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seems to be some inference that there might
be a direct relation between multiples of
three on the bench and being able to sit in
three-man panels. I should think it would
be immediately obvious that five judges
could use a three-man panel system equally
as well as six or seven or eight judges. It
means that on those days when only three
judges are sitting the other two judges
could be clearing up decisions; or on a day
when one or two judges might be absent or
sick, the docket could proceed.
They do not need to make panels out of
six or nine to augment the three-man panel.
One or two judges would give you a multi-
ple number of different possibilities of
panels, and, of course, on those days when
the full number of judges were not being
used, the others could be clearing up opin-
ions and generally, the caseload.
I do not think that we need to consider
anything other than who is best able to
determine on which days and in what way
a three man panel could be used. It seems
clear to me that the court itself is in the
best position to make that judgment.
THE CHAIRMAN: Does any other dele-
gate desire to speak in favor?
DELEGATE GLEASON: Mr. Chairman.
THE CHAIRMAN: Delegate Gleason.
DELEGATE GLEASON: Mr. Chairman,
I would hope that the delegates would start
getting a little concerned with the concen-
tration of power in the judiciary, and I
urge upon them a careful consideration of
this amendment.
I do not think that any of these provi-
sions in this article can be taken by itself,
and we have to consider where this article
fits in the overall context of the Commit-
tee's recommendations. One of their recom-
mendations, of course, is that these judges
sit for ten years, that there be no political
opposition and contest, but rather a screen-
ing process. To that extent we have re-
moved the political check of these appoint-
ments.
We do not tell the executive branch that
it can do anything it wants, we do not tell
the governor that he can set up his execu-
tive department, put it into effect, and that
that is it. We say that he can only do so
pursuant to law passed by the General
Assembly.
Take the legislative branch: we do not
say that anything that it wants to put into
a law will become law. We say that pro-
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