Boomerbuster: THE STRUGGLE FOR JURISDICTION OVER PROCEDURE III

THE BASIS FOR EXCLUSIVE JURISDICTION

What was the Court's assertion of exclusive jurisdiction in In re Clarification based on? It was based in part on the fact that the Court had concluded that the wording of the 1957 grant had vested it with exclusive jurisdiction. Why had it come to believe this, and how is this related to the 1973 holding? After all, the interpretation of exclusive jurisdiction did not follow from the wording of the 1973 revision: to say the Supreme Court ‘shall’ does not necessarily mean that the legislature ‘cannot’.

One important basis for the Court’s In re Clarification rationale, alluded to by both Earl and Means, is the fact that legislative authority over procedure is not spelled out in the constitution, whereas since 1957 the Supreme Court’s authority had been. The Supreme Court subsequently expressly inferred, from this absence of an express grant to the legislature, that the legislature has no constitutional authority over procedure. 23 Although Means considered this inference to be far fetched, he failed to address, other than by a hollow ‘argument from history’ under 2) above, how the express grant to the Court in 1957 did not by implication deny authority over procedure to the legislature. He also failed to address the larger fact that the express 1957 grant rendered prior jurisdictional history obsolete.

THE SEPARATION OF POWERS CLAUSE

Clearly, an important but implicit element of the In re Clarification rationale was the Separation of Powers clause:

The powers of the state government shall be divided into legislative, executive, and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.24

The views of Chief Justice B.K. Roberts were instrumental in fashioning the 1973 revision. 25

He had a strong separation of powers perspective. Regarding one proposal for revision, he said:

Frankly, I am opposed to the proposal as outlined because it tends to make the Judicial Branch almost entirely subservient to the Legislature. My concept of government is that it is divided between the Executive, Legislative, and Judicial branches and that each is to a large degree autonomous. The legislature prescribes the rules for its operation, the Cabinet prescribes the rules of operation for the Executive, and the Supreme court prescribes the rules for the Judicial, and frankly, I do not believe there is any more logic in having the Legislature write the rules for the Judiciary than there would be in having the Supreme Court write the rules for the Legislature.26

Though not explicitly cited, the separation of powers requirement also explains the reference in In re Clarification to State v. Smith and Figgers, supra., a case holding a statute authorizing interlocutory appeals from pretrial orders unconstitutional since jurisdiction to entertain such appeals may be granted only by rule of the Supreme Court, under art.V, s 5(3),. What better example of what J. Roberts referred to above as an attempt to have “...the legislature write the rules for the judiciary?”

In re Clarification made quite explicit the separation between the legislative and judicial branches of government based on the separation between their respective powers to regulate subject matters, correspondingly divided into the mutually exclusive domains of substantive and procedural law: “The distinction between practice and procedure, which is regulated by the Supreme Court and substantive law which is regulated by the Legislature, is discussed in a concurring opinion, In re; Florida Rules of Criminal Procedure....” 27

THE 'PUBLIC POLICY' DIMENSION

What other tendencies affecting the distribution of governmental functions influenced the In re Clarification opinion?

Means’ polemical articles claimed that what he called ‘Democratic Principle’ assigns the primary role in determining public policy to the legislature, and that In re Clarification was on a collision course with the Democratic Principle to the extent that public policy issues are as likely to be procedural as substantive. 28

He described and criticized the Court’s ‘expanding’ role in determining public policy issues, citing Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), in which the Court had construed an existing rule to authorize direct actions by insurers against their insured tortfeasors in part by ‘weighing and measuring certain countervailing public policies,’ and in which public policy was characterized as “...a molding device available to the judicial process by which changing realities and the attending manifested rules of fair play may be incorporated into our corpus juris.” 29

Means quoted Justice Frankfurter regarding the relationship of policy to procedure in judicial rulemaking as follows:

...the history of American freedom is, in no small measure, the history of procedure....some clearly procedural rules are of such great general significance that they should not be modified except by a procedure, such as legislation or constitutional revision, that involves general political assent. The right to jury trial, for example, is in this category.

The proper boundaries of the rulemaking power must therefore be worked out by processes that go beyond strict legal definitions. 30

If some rules are so important that they should not be modified except by general political assent, this arguably presents an area of rulemaking lying preponderantly within legislative control. Means' criticism of the Court’s substantive rights rationale is valid to the extent that the substance/ procedure dichotomy leaves no middle ground in the area of rules having policy implications.

However, Means’ criticism, made in isolation from other related trends, that judicial jurisdiction over procedure has been unreasonably expanding at the legislature=s expense, tells only part of the story, and fails notably to discuss possible causes for this trend.

Many factors have increased the tendency toward legislative solutions for matters once controlled by case law: the modernization of society, increasingly specialized institutions, powerful interest group legislation, consumerism and consumer protection, broader police power and public policy regulations, and other influences.

Portions of fields of “substantive” law, such as tort for example, once controlled almost exclusively by the judiciary, have become, after “tort reform” began, the subjects of legislation specifying rights and remedies, as well as rules of procedure.

Thus, although Earl had characterized the rule making power as “inherently uncontrollable”; on the other hand, the law making power, exercised to some extent at the expense of historic judicial subject matter prerogatives, has shown itself to be so as well.

This trend, toward greater legislative control over fields of law historically controlled by the judiciary, may in part account for a trend toward moderating, then toward eliminating, judicial deference.

In my view, it is partly within the context of, and in reaction against, this seemingly inexorable tendency, to shift power over substantive law from the judiciary toward the legislature, that the Court’s claim to exclusive jurisdiction over procedure arose, and should be scrutinized.

SUMMARY OF ANTECEDENTS TO IN RE CLARIFICATION

Societal trends, constitutional law issues, inferences from case law, and separation of powers rivalry, have been invoked to try to explain the Supreme Court’s position on its jurisdiction over procedure.

Greater judicial control over procedure in Florida began slowly, originally as a response to federal criminal procedural reform.

During the 1960s, trends in several different fields developed and converged. In state constitutional law, the legislature extended control at the expense of the judiciary over areas of law traditionally governed by common law stare decisis. The policy of judicial deference to acts of the legislature weakened. The substantive right rationale was increasingly used by the judiciary to define and divide functions of the legislative and judicial branches of government differently and more rigorously, and to assert that procedural areas were constitutionally off limits to lawmakers. The separation of powers clause played a new and greater role for the judiciary in defining the nature and extent of its domain against ‘encroachment’ by the legislature. The legislature took steps to limit 1957 rulemaking jurisdiction previously vested in the Supreme Court, and relations between these two branches of government grew more adversarial and tactical during this time.

Ultimately, when the legislature formulated the 1973 Article V amendment partly to check ‘unfettered’ judicial jurisdiction over procedure, the Court responded not only that it continued to have exclusive jurisdiction, but strongly hinted that the ground of its exclusive jurisdiction included not just Article V but also the separation of powers clause in Article II.

1. See generally: W. L. Earl, The Rulemaking Power of the Florida Supreme Court: The Twilight Zone Between Substance and Procedure, U. Fla. L. Rev. Vol. 24, 1971, p. 87 at 88.

2. Levin & Amsterdam, In Earl, Id. p. 443 n. 12.

3.1955 Fla. Laws 262, ch. 29737; see E. Means, The Power to Regulate Practice and Procedure in Florida Courts, Fla. B. J., Vol.54, Num.4, April, 1980, p 442.

4. Bluesten v. Florida Real Estate Comm., 125 So.2d 567 (Fla. 1960).

5. Means, Id., p. 277; Earl, Id. at 94; Florida Law Revision Commission, Study of Criminal Law and Procedure of Florida 62 (Tallahassee, n.d.(1970).

6. See infra; Broward County v. Surette, 281 So.2d 481 (Fla. 1973).

7. Id. pp. 94, 95.

8. See generally: E. Means, The Power to Regulate Practice and Procedure in Florida Courts, 32 U. Fla. L. Rev. (1980), 442, at 447, 461.

9. Earl. Id. pp. 94, 95.

10 Means, Id., p.277; Earl, Id., p. 94; See: Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla. 1963); Garcia v. State, 229 So.2d 236 (Fla. 1969); Barton v. State, 193 So.2d 618, 626 (Fla. 2nd DCA 1967).

11. Re Florida Common Law Rule 61, J. T. Wigginton, ANew Florida Common Law Rules,@ 3 U. Fla. L. Rev.. 1 (1950), cited in Wesley Constr. Co. v. Yarnell, 268 So.2d 454, at 455, (Fla. 4th DCA 1972).

12. Earl Id. p. 90.

13. Id. p. 95.

14. Id., p. 91; State v. Furen, 118 So.2d 6, 11(Fla. 1960).

15. State v. Furen, supra., Earl, Id. at 93.

16. See also: the discussion of the definition of practice and procedure in State v. Furen, 118 So.2d 6 (Fla. 1960).

17. Earl, Id.

18. Means Id p. 472.

19. Means, Id. p. 466.

20. Surette, Id. p. 482 n.1

21. Id p. 459.

22. Id p. 459-461.

23. Gonzalez v. Badcock=s Home Furnishings Center, 343 So.2d 7, 8 (Fla. 1977). See also Carmel v. Carmel, 282 So.2d 9, 10 (Fla. 3rd DCA 1973).