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posals of the General Assembly must be
subject to veto of the governor.
Here we really are taking a halfway
measure, saying that the Court of Appeals
shall have power, but that that power shall
be shared also by the legislative branch.
I would submit to Judge Henderson that
it is much easier to get such men to go into
a room to overturn a decision of 160 or 180
members of the General Assembly than it
is to get that group to go and overturn a
rule of the Court of Appeals.
I think we have to be concerned about
overloading power in one branch of the
government. I would hope this amendment
would be approved by this group.
THE CHAIRMAN: Does any delegate
desire to speak in opposition to the amend-
ment?
Delegate Willoner, do you desire to speak
in favor of the amendment?
DELEGATE WILLONER: Yes, Mr.
Chairman. I really did not think this was
the time to speak on this question, but
Delegate Dukes is trying to make it a ques-
tion of judicial administration. I do not
think it is a question of judicial adminis-
tration. Certainly, it is unlikely that the
legislature would ever get into this area.
The principle that is involved here, it seems
to me, is the most serious principle. It is a
question every delegate is going to have to
reach before discussion of this issue is
over, that is, whether or not we are going
to delegate legislative power to the courts.
To me this is a very serious proposition.
While our present Constitution has con-
currently delegated this power, in this par-
ticular article we are delegating power far
beyond what is ordinarily considered an
appropriate delegation of power to a ju-
dicial branch. It seems to me that a stand
must be taken here, although it would be
more likely to be taken at the last article
when we get to the rule-making power,
that the court shall not have power that
cannot be checked by the very people who
are giving them that power; and what we
would be doing is delegating forever the
power of the people to have any say in the
administration of their courts.
While, as I say, this is unlikely to hap-
pen in this particular area, if they were
ever to want this power, we would have
absolutely nothing to say about it. This is
a horrible principle. I think it is a prin-
ciple that we have to stand up and be
counted on. It is unfortunate it comes on
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an issue which is really not a question
that the legislature will really get into. It
is the principle that is involved.
I think we should support this amend-
ment.
THE CHAIRMAN: Delegate Marvin
Smith, do you desire to speak in opposi-
tion?
DELEGATE M. SMITH: I desire to
speak in opposition to the amendment, yes,
sir.
THE CHAIRMAN: You may proceed.
DELEGATE M. SMITH: May I suggest
to you, Mr. Chairman, that what we are
really and truly talking about here is let-
ting the courts administer the courts. Now,
the power does reside in the people. The
power resides in the people, and if that
power of administration is abused, the
people have the power to amend this con-
stitution.
I submit to you, sir, that the people who
have responsibility here with reference to
this rule-making power overlook the pro-
cedures that have heretofore been used
insofar as that rule-making power is con-
cerned.
Now, you, Mr. Chairman, I think have
been a member of the Rules Committee. I
have never been a member of the Rules
Committee of the Court of Appeals, but
you know, sir, that the practice has been,
when the Rules Committee was considering
a draft of a rule, that it was published in
the daily record; it was circulated. The
bar and the public have been given an op-
portunity to be heard, and then it is only
after that that the rule has gone to the
court and has been adopted by the Court of
Appeals.
THE CHAIRMAN: Does any other dele-
gate desire to speak in favor?
Delegate Weidemeyer.
DELEGATE WEIDEMEYER: Mr.
President, Members of the Committee of
the Whole:
I rise in favor of the amendment.
If we look at section 5.31, we find, as
Delegate Henderson pointed out, that both
the legislature and the court have a con-
current jurisdiction in rule making power,
and that the last one to speak on the sub-
ject, is the rule to be applied. But also in
section 5.31, it begins "except as to matters
specifically provided by this Constitution."
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