BLAIR LEE III, Acting Governor

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Processing Policy Board of which one non—voting member may
be appointed by the Chief Judge of the Court of Appeals.
Providing for appointment powers by a judicial officer
raises two constitutional questions: (1) Does the bill
contravene Article II, Sec. 10 of the Constitution which
vests the appointment power in the Chief Executive? (2)
Does it contravene the separation of powers mandated by
Article 8 of the Maryland Declaration of Eights? Article
II, Sec. 10 of the Constitution provides:

"[The Governor] ... shall nominate, and, by and
with the advice and consent of the Senate,
appoint all civil and military officers of the
State, whose appointment, or election, is not
otherwise herein provided for, unless a different
mode of appointment be prescribed by the law
creating the office."

In Davis v. State, 7 Md. 151 (1854), the Court
construed a precursor of Article II, Sec. 10, and said:

"[W]e think the provision means, simply, that the
Governor shall have the power to fill all offices
in the State, whether created by the Constitution
or by Act of Assembly, unless otherwise provided
by the one or the other. When, therefore, the
legislature has created an office by Act of
Assembly, the legislature can designate by whom
and in what manner the person who is to fill the
office shall be appointed ...."

Id. at 161. In two later cases the Court applied the same
rationale in upholding an act by which the Legislature,
itself, appointed commissioners to the Board of Police,
Baltimore v. State, 15 Md. 376 (1860); and (2) an act by
which the Legislature authorized the Medical and Chirurgical
Faculty of Maryland to appoint a board of medical examiners,
Scholle v. State, 90 Md. 729 (1900). Thus, the appointments
power which Section 10 vests in the Executive does not
prohibit the General Assembly from enacting legislation
providing for appointments by others.

However, that which is not prohibited by the
appointments clause might be prohibited by the separation of
powers mandated by Article 8. Indeed, the Court of Appeals
has held that legislative enactments providing for
appointment powers in a judicial office violate the doctrine
of Separation of Powers when they impose upon the judiciary
"non-judicial functions." In Beasley v. Ridout, 94 Md. 641
(1902), the Court struck down a 1902 law which imposed upon
the judiciary the responsibility of appointing a board of
visitors of the county jail. In ruling that judges cannot
be compelled to perform services not of a judicial nature,
the Court stated, "[n]o argument is needed to show that the
duty thus sought to be imposed is not judicial, and that in