SUBSTANCE VERSUS PROCEDURE
By 1960, the same year in which Bluesten
was decided, the Court adopted a 'substantive
right' rationale for
its delineation of the boundaries between substantive and procedural law. This
rationale’s foundation is that the separation of powers clause implicitly
prohibits rulemaking that abridges, enlarges, or modifies any substantive
right. 14
The Supreme Court has defined procedural
laws by contrast with substantive laws. Application of the substantive right rationale to
determine the scope of judicial rulemaking has been based in practice on
definitions that distinguish procedure and substance: “The validity of (a rule)
turns on the meaning of ‘practice
and procedure’ in relation to the courts.” 15
In In
re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.
1972), in Justice Adkins’ Concurring opinion, cited in In re Clarification, Id.,
the Court defined ‘procedure’. Under
Justice Adkins’ definition, the
domain of procedure is broad:
Practice and
procedure encompass the course, form, manner, means, method, mode, order,
process or steps by which a party
enforces substantive rights or obtains redress for their invasion. “Practice and procedure” may be described as
the machinery of the judicial process as opposed to the product thereof. 16
Earl described the problem of determining
the confines of practice and procedure.
The prevalent view earlier in the century had suggested a broad ‘twilight
zone’ in which procedural and substantive law were virtually indistinguishable.
Earl argued, as virtually all writers
have, that the substance/procedure distinction is unhelpful, existing definitions are not useful, and the
distinction is misleading except in a few self
evident instances. 17
Nevertheless, for reasons to be further explored,
the Court adopted a sharp distinction between substance and procedure, between
substantive rights versus rules, as a way of distinguishing governmental
functions and powers.
II. SUPREME COURT VERSUS LEGISLATURE :
IN RE
CLARIFICATION OF FLORIDA
PROCEDURE (FLORIDA
The 1971 Legislature proposed a
constitutional revision, effective
January 1, 1973. Sec.2(a) of the new
Article V vested rulemaking authority as follows:
“The supreme court shall
adopt rules for the practice and procedure in all courts .... These rules may be repealed by general law
enacted by two-thirds vote of the membership of each house of the legislature.”
Shortly after adoption of this
constitutional amendment, the legislature enacted several statutes which were
obviously procedural in nature. In
declaring these statutes unconstitutional, the Supreme Court in In re Clarification essentially
reiterated its position in Bluesten, supra.,
without citing it, that its jurisdiction over procedure was exclusive, in spite of the new
repeal provision: “The legislature has the constitutional right to
repeal any rule of the Supreme Court by a two-thirds vote, but it has no
constitutional authority to enact any law relating to practice and procedure. See State v. Smith and Figgers, 260 So.2d 489 (Fla. 1972).” Id. at
204. The Court thus expressly excluded
the legislature from lawmaking in the area of procedure.
The holding explicitly divested the
legislature of procedural jurisdiction over all laws it had previously
enacted. Procedural portions of these
laws could no longer be amended by the Legislature, and were, as it were, ‘frozen
in time’. Means described some of the
practical problems with blanket adoption:
Blanket adoption
fails to inform practitioners of which statutes have been so adopted. Nevertheless, those adopted are supposedly
thereafter removed from the power of the legislature to amend....The statutory
sections continue to be published in the Florida Statutes. The user has no way of knowing whether a
particular section has been superseded or continued as a rule. More importantly, the legislature has no way
of knowing whether a particular section is subject to amendment or appeal. It has even been conjectured that a particular
statute may have been superseded in part and continued in part by such blanket
adoption. Even with specific adoptions,
it is possible for the court to change its mind as to whether a particular
matter is substantive or procedural. 18
In
re Clarification overruled Ch 73-72 which purported to amend Fl. St. 53.051, a
statute which the Court asserted it had previously adopted as a rule by
promulgating the 1967 revision of the Rules. The Court stated “the 1967
adoption as rules of the court of all statutes which have not been superseded
or may be in conflict with the rules is primarily a matter of convenience or
administrative expediency. Such adoption
avoids the question of whether a matter lies within the field of substantive
law or procedural law”. The
characterization of the effect of adoption as ‘mere expedience or convenience’
misrepresents its actual consequences, as the Court’s subsequent reasoning
bears out: adoption is an assertion that a statute is procedural. Far from ‘avoiding’ decisions on substance versus procedure, blanket adoption
decides matters to be procedural and brings them permanently under judicial
rather than legislative jurisdiction (unless legislatively vetoed). All that blanket adoption avoids is the spelling
out of which matters have been brought under the Court' exclusive jurisdiction. The Court’s further holding bears this out: “The
fact that this Court may adopt a statute as a rule does not vest the
Legislature with any authority to amend the rule indirectly by amending the
statute. In other words, an attempt by
the Legislature to amend a statute which has become a part of rules of practice
and procedure would be a nullity.”
The Court at this point was discussing a
statute which had been adopted by Rule in 1967 under the 1957 grant of rule
making authority. A plain reading of the
opinion indicates that the Court was asserting in 1973 that this 1967 adoption
as a rule had worked exclusive jurisdiction over this statute under the former,
1957, grant. As this article has shown, this reasoning was merely consistent
with its prior holding in Bluesten in
1960.
Means, writing as a partisan against
exclusive jurisdiction in 1980, claimed that D’Alembert, the Chairman of the
House Judiciary Committee, ‘mistakenly’ considered the Court’s jurisdiction to
be already exclusive in 1971. 19
However, the language of the 1957 grant lent itself to interpretation as
an exclusive grant. Id.
p. 447. Furthermore, D’Alembert was
working in 1971 on a constitutional revision intended by him to check the Court’s
jurisdiction precisely because no check was thought by the legislature to
exist. Finally, the In re Clarification
Court in effect acknowledged that its jurisdiction had been exclusive since
1957, a fact then long indicated in Bluesten. Put another way, its hindsight that its
jurisdiction had become exclusive in 1957 became “20/20” in 1973. If, as Means asserted, D’Alemberte was
mistaken in believing the Supreme Court’s procedural jurisdiction was exclusive
in 1973, D’Alemberte was nevertheless in very good company.
Means analyzed whether In re Clarification rested on the 1973
revision of article V. He reported that
the revision=s
proponents did not intend this result, and that the Court had not relied on the
1973 constitutional revision for its holding. Id p. 467. This conclusion is reflected in Broward County v. Surette, 281 So.2d 481 (Fla. 1973), issued the
same day as In re Clarification,
dealing with a joinder statute found to be in conflict with a rule. Surette
did not refer to In re Clarification
or rely on it, but relied instead on the 1957 grant for holding Fl. St.
455.06(2) unconstitutional, stating that "the
revised Art. V, effective January 1, 1973, contains a similar provision in Art.
V, s. 2(a)." 20
Means found ‘implied’ support for the In re Clarification holding in three
rationales:
1) that absence
of an express grant of legislative
authority over practice and procedure implies an intent that the legislature
shall not have such authority; 2) that the authority to regulate practice and
procedure cannot coexist in both the court and the legislature, and an express
grant was made to the court; or 3) that application of the maxim expressio unius est exclusion alterius
to one or the other of the components of the constitutional grant of rulemaking
authority implies that the legislature is to be excluded from the regulation of
practice and procedure. 21
Means found all of the these grounds to be inadequate. His answer to:
1) above is that, as to the legislature, a
state constitution is a limitation not a grant of authority, and the
legislature possesses all authority not expressly or impliedly denied by the
constitution. He claimed that the
legislature’s rule making authority was never challenged prior to 1973.
2) above is rebutted by an ‘argument from
history’: the authority coexisted in both branches throughout the history of
the state until 1973.
3) above is rebutted by the explanation
that the maxim should be used only in ascertaining true meaning, and not as a
rigid rule of universal application, especially where there is a rational
alternative explanation for a provision.
Means found rational alternative explanations for the 1973 grant not
excluding legislative rule making.
However, Means’ analysis under all three
is somewhat confounded by his failure to cite or interpret Bluesten. 22
No comments:
Post a Comment