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Delegate Macdonald, you have an amend-
ment that you desire to offer?
DELEGATE MACDONALD: I do, Mr.
Chairman.
THE CHAIRMAN: Very well. The page
will distribute the amendment, BI. Please
mark this Amendment 15. The Clerk will
read the amendment.
READING CLERK: Amendment No. 15
to Committee Recommendation JB-1, by
Delegate Macdonald: On page 4 section
5.11 Commissioners in lines 3 and 4, strike
out the following, "and then only as pre-
scribed by rule".
THE CHAIRMAN: The amendment
having been seconded, the Chair recognizes
Delegate Macdonald to speak to the amend-
ment.
DELEGATE MACDONALD: Mr. Chair-
man, fellow delegates, first I wish to em-
phasize what this amendment will not do.
It will leave intact the appointment of the
commissioners, and the subject matter area
in which they may act.
Now as to what it will do. The amend-
ment proposes to strike from page 4 the
words on lines 3 and 4, "and then only as
prescribed by rule". This would mean that
the manner in which the authority of the
commissioners to issue warrants of arrest,
prescribe bail, collateral and decide whether
a person should be incarcerated pending
hearing or not could be determined either
by rule adopted by the Court of Appeals
with its rule-making authority, or by the
General Assembly by law.
Referring your attention again to sec-
tion 5.31 of this article, you will see that
as to .practice and procedure in the courts
for the most part, the rule-making au-
thority of the Court of Appeals is shared
concurrently with the General Assembly;
either the General Assembly or the Court
of Appeals may enact the rule. The con-
current power prevails. This may go on in
an endless chain but as already pointed out,
this current system has worked remarkably
well. The present rules of procedure which
are in effect in the State of Maryland were
adopted under this concurrent power sys-
tem. They are an excellent set of rules.
Very seldom is there a clash between the
General Assembly and the Court of Ap-
peals. When there is, they work it out to
the mutual satisfaction of everyone.
Now, there are many less important mat-
ters of practice and procedure that are
subject to the concurrent rule system. For
instance, the form of action which must
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be brought in the court, the form and
tent of the pleadings, in what county
must be brought, the procedures for ;
trial discovery, the procedural rules
the conduct of the trial, motions which
be made during trial and after trial,
must sign the bill of complaint — all
these matters are subject to the concur]
rule of the General Assembly and the Cc
of Appeals.
When it comes down to matters such
the issuance of warrants of arrest,
collateral, and incarceration pending
hearing, we may be dealing in an a
which is strictly procedural; in ot
words, in which the Court of Appeals
the General Assembly should have com
rent power, or we may be dealing in
area which is a matter of substance. (
tainly if a man is arrested and he is 1"
in jail for 12, 15, 20, or more hours,
even for three or four hours before heari
I think he would think that that was s
stantive.
Until rules are promulgated with reg
to warrant, issuance of warrants of arr
bail, et cetera, we really cannot tell whet
they are substantive or procedural. If t
are substantive, or to the extent that t
are substantive, they should be left
clusively to the General Assembly, and
Court of Appeals should have no authoi
to act in that respect whatsoever. We
agree that the legislative body is the G
eral Assembly and that the Court of j
peals can pass rules on practice and p
cedure only.
So the effect of my amendment would
to eliminate the requirement that this
done only by the Court of Appeals. It wo
allow either the General Assembly or
Court of Appeals to adont rules and re,
lations on the subject. Since it gets cl
to the substantive, as a matter of fact,
times quite substantive depending ui
how the rule is written, we should leave
flexible so that either the General Assem
or the Court of Appeals could adopt ;
propriate rules on the subject.
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Mr. Chairm
ladies and gentlemen of the Committee
the Whole : I am forced to rise in opp<
tion to the amendment and to explain tl
it is contrary to the view of the major
in submitting the report which you n
have before you for consideration.
Delegate Macdonald has pointed <
rather clearly the difference between
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