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DELEGATE MUDD: If we did not have
that provision in and the governor stood
by and did not appoint, you could have a
vacancy that was never filled.
DELEGATE MITCHELL: Not if there
is a mandate that he shall appoint within
sixty days. Did you consider language that
would give a mandate to the governor to
appoint within sixty days?
DELEGATE MUDD: Yes, line 38 says
the governor shall fill a vacancy.
THE CHAIRMAN: Do you have a fur-
ther question, Delegate Mitchell?
DELEGATE MITCHELL: But then you
qualify it by your sixty-day limit. "The
governor shall fill a vacancy within sixty
days," it seems to me it should be. Did you
consider phrasing it that way?
DELEGATE MUDD: I think it implies
it in the over-all consideration of the sec-
tion but may I yield to Judge Henderson.
THE CHAIRMAN: Delegate Henderson,
can you reply further to the inquiry?
DELEGATE HENDERSON: I should
like to add this briefly. I think our atten-
tion was brought to a case in one of the
other states in which an impasse developed
where the governor was displeased with
the nominees specified by the commission
and simply refused to appoint. There was
no way to compel him to do so.
This provides an alternative so that if
the governor does not appoint, the duty
devolves upon the chief judge of the Court
of Appeals.
I think that is a very unusual thing. If
I might say one other word about the al-
leged impropriety of a judge appointing a
judge. In the whole English system which
has existed for centuries and is recognized
as one of the best in the world, I believe,
all of the judges except one are appointed
by the chief judge of their highest court,
so it is not without precedent. It would be
a rare occurrence.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Would Judge
Henderson answer a further question?
DELEGATE HENDERSON: Yes.
DELEGATE MITCHELL: England does
not have a constitution and does not pro-
vide for the same separation of powers as
we have provided.
Is this not a violation of the doctrine of
separation of powers?
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THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I do not
believe it is. Actually the separation of
powers is not such an inflexible system as
we sometimes imagine. In other words, the
administrative agencies attached to the ex-
ecutive are given rule-making power in
many instances which is of a quasi-judicial
character. We can see there are shared
powers throughout all the different depart-
ments. In this one small particular it is
merely providing an alternative in case
the governor fails to perform his duty. It
is something like a mandate to the court
to do it if the governor does not. It is very
much like the enforcement provision of re-
apportionment, I suggest.
DELEGATE MITCHELL: I have a fur-
ther question of Delegate Mudd. Does 5.16
contemplate a trial court nominating com-
mission in each district?
DELEGATE MUDD: The number and
composition of commissions and terms of
members shall be prescribed by law; that
is left to the legislature.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Did your
Committee contemplate that there would be
a trial court nominating commission in each
district?
THE CHAIRMAN: What do you mean
by district, Delegate Mitchell?
DELEGATE MITCHELL: In which the
trial courts shall sit.
DELEGATE MUDD: Not necessarily.
We did not contemplate that there would
be a nominating commission for every
political subdivision if that answers your
question.
DELEGATE MITCHELL: It is evident
that some of your districts will comprise
more than one political subdivision.
DELEGATE MUDD: It is entirely pos-
sible that some of the districts set up by
the legislature may comprise more than one
county, yes.
DELEGATE MITCHELL: Therefore,
did your Committee contemplate one trial
court nominating commission chosen from
all of the State to nominate candidates for
a position in a certain district?
DELEGATE MUDD: No, we envisioned
more than one for the State.
THE CHAIRMAN: Delegate Mitchell.
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