Legislature’s bid to gain power over court rules moves forward
Feb 24, 2011
The following article was published in The Florida Current on February 23, 2011:
Legislature’s bid to gain power over court rules moves forward
By Bruce Henzi
Two measures that would significantly move the power of court rulemaking towards the Legislature and away from the state’s high court were approved by a House panel on Wednesday, but Democrats and lawyers in attendance said they have grave concerns.
The measures would give lawmakers the ability to make final decisions on court rule changes and would only allow the state’s courts, including the Florida Supreme Court, to recommend needed rule changes.
Currently, the state’s high court can adopt rules for courts, which can then be repealed by a two-thirds vote by the Legislature. Republican lawmakers have argued that the high court has been creating rules that delve into substantive policy, such as the death penalty and speedy trial issues, rather than reviewing procedural policy, resulting in the courts overstepping their bounds.
The measures passed the House Civil Justice Subcommittee on Wednesday. The constitutional amendment — if passed by the Legislature — would be brought to Floridians in the 2012 election.
Rep. Eric Eisnaugle, R-Orlando and chairman of the subcommittee, stated that the bill is designed to mirror the federal system of court rulemaking and would attempt to provide more checks and balances, as well as bring transparency.
Eisnaugle said that there are currently “no meaningful checks” on the court’s rulemaking ability, while there are plenty of checks and balances when it comes to the Legislature.
“When the courts can ignore a rule repeal, or simply readopt a rule that has been repealed verbatim, I would submit to you that is not a meaningful check on the court’s rulemaking power,” Eisnaugle told the committee.
The proposed changes to court rules are part of several potential adjustments that the Florida House may make this year that impact the state’s judicial branch. House Speaker Dean Cannon has complained loudly about the state Supreme Court’s decision last year to toss three amendments off the 2010 ballot.
Democrats and lawyers voiced their concerns with the bill, stating that while there may be problems with the current system it is important to go slow and rationally consider the options available.
Rep. Richard Steinberg, R-Miami Beach, said that he has concerns over the bill possibly creating a “turf battle” between the different branches of government and that the amendments don’t provide protections from the state to taking more power from the state’s court in the future.
“The problem that I have is that there is nothing that prevents a Legislature in the future from going further,” said Steinberg. “So while we may all be comfortable with [changes] here today, we may not be comfortable in opening up Pandora’s box and allowing changes to be made in the future.”
Meanwhile, Barry Richard, a prominent lawyer representing The Florida Bar, told the members that while there may be a very “narrow” issue at hand, “you don’t do more than you need to do to fix it” and that you “particularly don’t monkey with the fundamental structure of government when you don’t have to.”
“There are any number of ways to truly resolve what you’re legitimately concerned about without a complete takeover of the Supreme Court’s rulemaking authority,” said Richard.
Eisnaugle said that he is open to work with fellow representatives on the bill, but ultimately said that the amendments address “an important issue” and he would not want to “compromise on the ultimate goal” of the bill.