|
DELEGATE DUKES: Would that agree
with your committee's position?
DELEGATE MUDD: Yes, sir.
DELEGATE DUKES: The other ques-
tion, as I understood your answer to my
questions yesterday afternoon and last
night, would mean that a functional divi-
sion could not be established within a par-
ticular superior court, which would have
separate rules other than the rest of the
court which would have a different area of
jurisdiction.
Now, my particular question is, is there
any reason why the Court of Appeals could
not establish a rule which says that the
superior court can have, if it has divorce
jurisdiction, a family court, and establish
separate rules for that family division,
different from the regular rules of the su-
perior court?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: You mean as to
practice and procedure?
DELEGATE DUKES: Yes.
DELEGATE MUDD: Well, of course—
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: The answer to
that question is probably what interpreta-
tion would be put on the rules as to whether
or not it interfered with the uniformity of
jurisdiction. I see no problem with a func-
tional division of the superior court deal-
ing with several phases before one judge
or one functional division within the juris-
diction assigned by law to that superior
court such as a family court dealing with
divorce matters or support, anything within
the equity jurisdiction of the court.
THE CHAIRMAN: Delegate Dukes, if
you would pardon the Chair I think I could
ask Delegate Mudd if he might clarify
that answer.
Delegate Mudd, do the Court of Appeals'
rules of procedure today provide differ-
ently in law cases than in equity cases,
that is, in law courts and in equity courts?
DELEGATE MUDD: Yes, in some in-
stances. Therefore there could be different
rules.
THE CHAIRMAN: Within a functional
division in the court?
DELEGATE MUDD: Yes.
THE CHAIRMAN: Does any delegate
desire to speak in favor?
|
DELEGATE WILLONER: Mr. Chair-
man, I rise again as I did a few minutes
ago, not to attack the detail of what will
be the right of the court to provide for
establishment of functional divisions by
rule, but to attack the principle that is
again involved here. As was just explained
by Mr. Mudd, we could have set up by
the court of appeals a separate function.
It would be exclusively within the jurisdic-
tion of the court to establish the rules for
it.
It seems to me once again we have to
make a judgment whether we feel that this
power can be given to the courts without
any veto, without any check whatsoever,
and in answer to my remarks earlier the
only answer was that, well, we can im-
peach the judges and they notify the public
when they discuss these rule changes.
It seems to me that the much more effec-
tive way is the way that we handle the
legislature, it gets far more publicity than
the rules meetings. The effect of the veto
is a far more reasonable use.
I do not believe we have ever impeached
a Maryland judge. The point I am making
is this: that we must once again make the
judgment whether or not we want to dele-
gate this power to make law without any
check whatsoever. I feel that that is a great
departure in the principle of government
which we have discussed here so far.
THE CHAIRMAN: Does any delegate
desire to speak in opposition?
Delegate Marion?
DELEGATE MARION: Mr. Chairman,
for those who would say that this is the
granting of some unusual power to the
courts, I say they are mistaken. This is
not a question so much of power but one
of responsibility in connection with admin-
istration of the courts.
I think that the language which we have
tried to include, relating to functional divi-
sions, both in this section and in section
5.10, relate far more to the assignment of
judges to handle particular matters within
a larger jurisdiction than to questions of
power. It is one of administration of the
courts and of assignment of judges. We try
later on to give the authority to assign
judges appropriately throughout this en-
tire judicial system, and I think that the
creation of the functional divisions by rule
is not inconsistent with it.
We have tried to strike a balance in the
Committee between those things which do
|
