Several useful and important articles have been published on this subject since this article was drafted.

So, it is not the last, or even most important, reference, for this group of topics, even in this one state.

THE STRUGGLE FOR JURISDICTION OVER PROCEDURE IN FLORIDA

PART ONE

I. INTRODUCTION

Jurisdiction over procedure has been one of the main frontiers of conflict and accommodation between the judiciary and the legislature for over 30 years. The Supreme Court has now long claimed exclusive jurisdiction over procedure. The legislature has often failed to acknowledge, and sometimes to accept, this claim. Important constitutional questions involving the proper powers of these branches of government are at stake. More practically, lawyers in many fields have long been confounded by the need to reconcile statutory procedures with discrepant or conflicting rules of court.

This article summarizes and comments upon modern legislative and judicial efforts to control jurisdiction over procedure in Florida, with special reference to civil procedure, and deals with existing scholarship on this subject. Its scope requires that it can be only a survey of the topic.

This subject overlaps many areas including state constitutional law, legislation and litigation in disparate fields, and public policy issues. These areas will be discussed to the extent necessary to illuminate developments in jurisdiction over procedure.

Part I covers the subject from the early 20^th Century up to 1973, generally follows a chronological account, including exegesis and criticism of existing scholarship, statutory and decisional law, and contains topical treatment of issues necessary for an account of the ground of the Supreme Court=s assertion of exclusive jurisdiction over procedure.

HISTORY OF JURISDICTION OVER PROCEDURE

A court rule is a judicial order directed against all persons within its scope.

Prior to the 1920s, judicial rulemaking in Florida was limited to administrative matters, administration of the bar, and regulation of court business, because such matters were considered within the inherent powers of courts by virtue of the constitutional separation of powers.1

Nationally, the movement away from legislative control over procedure came with federal reforms in the 1930s. The rationale for greater judicial control over rulemaking has been summarized as follows:

Legislatures have neither the immediate familiarity with the day-to-day practice of the courts which would allow them to isolate the pressing problems of procedural revision nor the experience and expertness necessary to the solution of these problems; legislatures are intolerably slow to act and cause even the slightest and most obviously necessary matter of procedural change to be long delayed; legislatures are subject to the influence of other pressures than those which seek the efficient administration of justice and may often push through some particular and ill-advised pet project of an influential legislator while the comprehensive, long-studied proposal of a bar association molders on committee; and legislatures are not held responsible in the public eye for the efficient administration of the courts and hence do not feel pressed to constant reexamination of procedural methods. Moreover, it must be remembered that a very large part of maintaining maximum effectiveness in the courts does not lie in drastic wholesale procedural reform, but in the necessary minor alterations of single rules from time to time as experience dictates, and such small matters as these inevitably fare badly when they must compete for legislative attention.

William L. Earl summarized the early history of rulemaking reform in Florida as follows:

Basically, Florida followed the national pattern of rulemaking reform, but a decided judicial reluctance to exercise existing rulemaking powers resulted in what has been termed a A checkered history@ of procedural reforms. In 1940 the Florida supreme court held its inherent powers did not encompass the power to promulgate civil rules of procedure patterned after the federal rules. Petition of Florida State Bar Assn., 145 Fla. 223, 199 So. 57 (Fla. 1940). Despite intervening passage of an enabling act, the court in 1945 again rejected an opportunity to promulgate civil rules of procedure. Petition of Florida State Bar Assn., 155 Fla. 710, 21 So.2d 605 (Fla. 1945). Id. p. 88. 2

In 1955, two years prior to the first express constitutional grant of rulemaking authority to the Supreme Court, the legislature authorized the Court to promulgate rules for practice and procedure in all courts, and such rules were to prevail over any statutes with which they conflicted. 3

The Supreme Court obtained express constitutional rulemaking authority for the first time in 1957. Section 3 of new Article V provided: “The practice and procedure in all courts shall be governed by rules adopted by the Supreme Court”. This 1957 wording was subsequently held in 1960 to have vested exclusive jurisdiction over procedure in the Supreme Court. 4

However, previous commentators in 1971 and 1980, Earl and Ernest Means, believed that it was never so held by the Supreme Court during the time this provision was in force. 5 These authors were apparently, and perhaps suspiciously, unaware of, and failed to cite, Bluesten. The 1957 Article V was subsequently interpreted to have vested exclusive jurisdiction in the Supreme Court in In re Clarification of Florida Rules of Practice and Procedure (Florida Constitution, Article V, Section 2(a)), 281 So.2d 204 (Fla. 1973). 6

Earl’s Article, appearing in 1971, found the scope of the 1957 constitutional grant of procedure problematic. He did not acknowledge that it exclusive jurisdiction, but suspected that it might have. He had concerns that it was not clearly limited, that the rulemaking power is inherently uncontrollable”, and that the legislature had no express constitutional authority over procedures. 7

Nevertheless, most procedural legislation after the 1957 revision, and the Bluesten decision, went unchallenged by the Court and belied exclusive judicial jurisdiction, resulting in apparent de facto shared jurisdiction from 1957 to 1973. 8

Additionally, the Court failed to adopt rules for several clearly procedural areas during this period, a fact which has been construed as evidence that it did not exercise exclusive jurisdiction.9

The Court generally held during the 1957 to 1973 period that rules ‘superseded’ statutes to the extent of conflict between them. 10

The Court also during this period continued to defer to Aspecial statutory procedures@ under Rule 1.010 where these procedures were claimed to conflict with other rules. For example, the year after the Court’s constitutional rulemaking authority was made express, Harley v. Bd. of Public Instruction of Duval County, 103 So.2d 111, (Fla. 1958), dealt with a conflict between a special statutory procedure, a general law, and Rule A of the 1954 Rules, over the time within which to file a petition for certiorari. The terms of the special statutory provision were held to control over the general law and over the conflicting Rule, based on the exception found in Rule 1.010.

The applicability of the 1954 Rules, and subsequent Rules, has been restricted with respect to “special statutory procedures”. Rule1.010 provides in part, “These rules apply to ...all special statutory proceedings....The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary.”

The reason for restricting the applicability of the rules with respect to statutory proceedings is evident. Florida has in its statutes many special proceedings, such as eminent domain and bond validation, in which each step is clearly specified. The form of the pleadings required therein is relatively simple, and the time for filing them is greatly accelerated as compared to the old common law system of procedure. Modification thereof by general rules is accordingly unnecessary, and might well produce undesired results in practice. 11

Earl summarized the 1960s history of rulemaking reform in Florida as follows:

Modern rules of civil procedure, abolishing the distinction between law and equity, were not adopted by the Florida supreme court until 1967, eleven years after its investiture with constitutional rulemaking authority. The court’s entrance into criminal rulemaking was the response to the United States Supreme court’s directive in Gideon v. Wainwright. Criminal Rule 1 was adopted to avoid chaos by regulating the administration of post-conviction relief proceedings of indigent defendants, which Gideon held had been denied the right to appointed counsel. The first comprehensive body of criminal rules was not implemented in Florida until 1968. Since most were patterned after existing procedural statutes, they did not represent an aggressive or innovative assertion of the court’s authority. 12

In 1967 The Rules of Civil Procedure were promulgated. The order adopting the rules, In Re: Florida Rules of Civil Procedure 1967 Revision, 187 So.2d 598 (Fla.), provided A all statutes not superseded by the rules or in conflict with the rules shall remain in effect as rules promulgated by the Supreme Court.@

What might be characterized as ‘discretionary’ judicial deference to special statutory procedures remained intact under Rule 1.010.

The wording, “...shall remain in effect...”, also contained in the 1967 Florida Rules of Criminal Procedure, suggested that the legislature continued to have procedural authority in these fields:

a judicial determination that procedural statutes remain effective as court rules does not negate the fact that legislative revision of such statutes implies an affirmative legislative role in the regulation of practice and procedure. If the constitutional rulemaking power of the court is in fact exclusive, such legislative actions may be unconstitutional. 13