The Legislative Roles in Florida's Judicial Rulemaking

In his recent work in this review, Ernest Means made a significant contribution to the study of the relationships between the judicial and legislative branches of state governments and their proper roles. The work focuses on the promulgation of rules of practice and procedure by the supreme court of Florida, and on the role of the Florida Legislature during the rulemaking process. The work traces extensively the historical development of the procedural rulemaking power in Florida, and identifies three significant stages in the development of this power. They consist of the pre-constitutional rulemaking stage, the stage in which the Florida courts' rulemaking power was first defined by the constitution, and the present stage. In this present stage, a recent Florida constitutional amendment empowers the supreme court to promulgate rules of practice and procedure for the courts of the state and enables the legislature to repeal any such rules by a two-thirds vote of each house. Means' article analyzes this amendment by examining its language, intent and judicial interpretation. The article concludes with the rather cogent argument that the Florida supreme court has strayed from the constitutional role assigned it by the amendment's framers. It contends that the Florida supreme court was wrong in finding its rulemaking power exclusive, in that legislative participation in the regulation of practice and procedure beyond the repeal of rules promulgated by the court is foreclosed. It asserts that the court's determination conflicts with the literal constitutional language, with the intent of the framers, and with democratic principle. It is the third assertion, involving the court's alleged undermining of the democratic or organizing principle which prompts this commentary. Means contends that the democratic principle "assigns the primary role in the determination of public policy to the legislative branch of Florida government." Therefore, he reasons, "the court's assumption of exclusive rulemaking responsibility has undermined this principle by usurping legislative participation in the policy issue determinations inherent in the promulgation of procedural rules." Comment on this discussion of democratic principle seems appropriate for several reasons. First, while Florida's legislature, as all state legislatures, is constitutionally assigned the primary role in the determination of public policy, there are certain areas within which a primary role is assigned to either the executive or judicial branches. Second, the view that legislative participation in procedural rulemaking is foreclosed by the court's determination of exclusivity assumes that the primary role in determining the policy issues inherent in judicial rulemaking is maintained only by the governmental branch which promulgates those rules. I believe, however, that the Florida Legislature can play a primary role, although it lacks ultimate rulemaking responsibility. In fact, I find examples in the noted work of the Florida supreme court's willingness to allow the Florida Legislature to play an active, even primary role in the promulgation of controversial, issue-laden procedural rules. The third and final reason for this comment is that, notwithstanding my disagreement with the author's rationale in finding violations of democratic principle, I too find democracy undermined in the Florida supreme court's interpretation of its procedural rulemaking power. Democratic principles mandate implementation of "public process in judicial rulemaking.” The Florida supreme court has failed to meet this mandate.