Proposed Changes to Supreme Court’s Rulemaking Authority

Two bills have been filed with the Legislature that would change the rule making authority of the Florida Supreme Court.  Staff analyses can be found on The Florida Bar’s Rules of Judicial Administration Committee’s webpage. These measures are likely to be scheduled for discussion by the House Judiciary Committee as soon as next week.  

From the Florida Bar:  

The Florida Bar has long opposed any changes to the current rule-making processes of the Supreme Court of Florida.  These two bills – a proposed state constitutional amendment to rewrite Article V, Section 2, plus companion statutory revisions – would drastically change the Supreme Court’s rulemaking authority and fundamentally alter the structure of Florida’s government.     

The 15-member House Civil Justice Subcommittee (composed of 14 lawyers) has already heard these arguments from Bar representatives.  Yet, that subgroup proposed these changes and, last week, voted 13-2 & 15-0 respectively to move both these measures forward. 

Article V, Section 2 presently gives the Supreme Court jurisdiction over procedural rules unless a rule is repealed by a two-thirds vote of the Legislature.  The proposed HJR would give that authority to the Legislature, with a proviso that the court “may” play an advisory role to be set forth in statute.  The second bill spells out how this would work, with the court heading a judicial conference of 10 subcommittees that would recommend rules to the Supreme Court annually, no later than August 1.  The Supreme Court would then submit rules proposals to the legislature by the first business day of December. If the legislature did not act on those proposals, they would become rules effective July 1 of the following year. 

Legislator proponents of this change claim there is presently no meaningful check on the court’s rulemaking power, and that Supreme Court justices themselves have noted the difficulties in discerning procedure from substance in the “twilight zone” of rulemaking.   The Florida Chamber of Commerce already supports this effort and says it could lead to a more stable environment for the business community.   

Some journalists view these bills as merely part of a broader legislative effort to diminish the judiciary’s overall power.  But, to The Florida Bar, these issues really seem to be more about comity and co-equality among our state’s branches of government, fair play, respect for the judiciary, and perhaps attempting to find better ways for both branches to resolve their rather isolated instances of disagreement.   

Supporters of this legislation further say these bills are meant to mirror the effective federal system of court rulemaking which features ultimate legislative control over the process.  The federal system is unique to our 1787 U.S. Constitution, likely more costly to taxpayers than current rulemaking, and may unnecessarily involve many more state judges in the process.

Please do two things – now!

1.  Continue to help the Bar constructively speak to these proposals.  The legislature’s staff analyses of Florida’s current processes seem to present only one view of rulemaking.  Help us say more about the court opinions they’ve highlighted in each analysis, and the good things about our present system.  

2.  Please contact House Judiciary Committee members immediately and voice your concerns about CVJ1 & CVJ2.  All these legislators need to know your sentiments..

House Judiciary Committee

William D. Snyder (R – Stuart) Chair  850-488-8832
william.snyder@myfloridahouse.gov

Charles McBurney (R – Jacksonville) Democratic Ranking Member Vice Chair  850-488-4171
charles.mcburney@myfloridahouse.gov

Ari Porth (D – Coral Springs) 850-488-2124
ari.porth@myfloridahouse.gov

Dennis Baxley (R – Ocala)  850-488-0335
dennis.baxley@myfloridahouse.gov

Daphne Campbell (D – Miami)  850-488-4233
daphne.campbell@myfloridahouse.gov

Eric Eisnaugle (R – Orlando)  850-488-9770
eric.eisnaugle@myfloridahouse.gov

Matt Gaetz (R – Fort Walton Beach)  850-488-1170
matt.gaetz@myfloridahouse.gov

Tom Goodson (R – Rockledge)  850-488-3006
tom.goodson@myfloridahouse.gov

Bill Hager (R – Boca Raton)  850-488-2234
bill.hager@myfloridahouse.gov

Shawn Harrison (R – Tampa)  850-488-3087
shawn.harrison@myfloridahouse.gov

John Patrick Julien (D – North Miami Beach)  850-488-7088
john.julien@myfloridahouse.gov

Larry Metz (R – Yalaha)  850-488-0348
larry.metz@myfloridahouse.gov

Kathleen Passidomo (R – Naples)  850-488-4487
kathleen.passidomo@myfloridahouse.gov

Ray Pilon (R – Sarasota)  850-488-7754
ray.pilon@myfloridahouse.gov

Elaine Schwartz (D – Hollywood)  850-488-0465
elaine.schwartz@myfloridahouse.gov

Darren Soto (D – Orlando)  850-488-9240
darren.soto@myfloridahouse.gov

Richard Steinberg (D – Miami Beach)  850-488-0690
richard.steinberg@myfloridahouse.gov

Gregory Steube (R – Parrish)  850-488-6341
greg.steube@myfloridahouse.gov