By Gary Blankenship
Senior Editor

A proposed constitutional amendment that would put the Florida Legislature in charge of state court procedural rules has passed a House subcommittee.

The House Civil Justice Subcommittee on February 23 approved two committee bills. One, if it ultimately passes both House and Senate by a three-fifths vote, would send an amendment to voters that would substantially rewrite Art. V, Sec. 2, of the Florida Constitution. That section now gives the Supreme Court jurisdiction over procedural rules unless a rule is repealed by a two-thirds vote of the Legislature. But the bill would give that authority to the Legislature, with the proviso the court “may” play an advisory role to be defined by statute.

The second bill spelled out how that would work, with the court heading a judicial conference with 10 subcommittees that would recommend rules to the Supreme Court no later than August 1 of each year. The Supreme Court would then submit rules proposals to the Legislature no later than the first business day of December. If the Legislature did not act on the rules, they would become effective on July 1 of the following year.

The amendment passed 12-3; the enabling legislation passed 15-0.

Rep. Eric Eisnaugle, R-Orlando, committee chair and lawyer who pushed the legislation, said the bills would bring the federal system of procedural rulemaking to Florida and fix a problem of the Florida Supreme Court using procedural rules to improperly involve itself in substantive law matters.

“There is not a meaningful check on the court’s rulemaking power,” Eisnaugle said. “We are simply seeking to implement the federal model that has worked for 200 years. We are picking a model that has stood the test of time.”

(Eisnaugle noted that the current federal rule structure was passed by Congress in 1934.)

The committee’s vote came after Steve Metz and Barry Richard, representing The Florida Bar, urged lawmakers to slow down and look at narrower solutions.

Richard argued that in the past 50 years, there has only been a handful of disputes over whether rules were procedural or substantive, and the bills were an overreaction to normal tensions between branches of government.

“I don’t perceive that this committee has a problem with the Supreme Court adopting rules that are truly rules of procedure,” Richard said. “The problem I see is truly a narrow one. What you are concerned about are instances where there is a question or dispute on whether something is procedural or substantive.

“It’s easily fixed in any number of ways short of the Legislature wholesale taking over the court’s rulemaking authority. . . . Most members of this Legislature are dedicated to a conservative form of government . . . which means that you don’t fix problems that don’t exist. If you do perceive a problem exists, you don’t do more than you need to do to fix it. You particularly don’t monkey with the fundamental structure of government when you don’t have to.”

Rep. Richard Steinberg, D-Miami Beach, a lawyer, proposed a different constitutional amendment that would have combined the two bills. He argued that, as proposed, the Eisnaugle version would allow a future Legislature to completely cut the Supreme Court out of the rulemaking process by merely passing a new implementing bill. His change would have the Supreme Court adopt procedural rules, but delay their effectiveness until the Legislature had a chance to consider them in a regular session and put those provisions in the constitution.

“I think this is a good way to get where we’re trying to go without having the unforeseen risk in the future of having someone come in and change it,” Steinberg said, adding it would be more likely to get the 60 percent required voter approval than Eisnaugle’s language.

“The amendment here is quite simple, and it goes back to the comments I’ve heard: that the federal [system] is a good model.”

Eisnaugle argued that under his proposals the inherent difficulties of getting a bill passed in the Legislature and signed by the governor would be an adequate check. He also argued that the current two-thirds voter override provision in the constitution is an inadequate check on the court.

Rep. Darren Soto, D-Orlando, a lawyer, asked Eisnaugle what other states had adopted the federal rulemaking model.

“We started to look at that, do sort of a 50-state survey, and realized that the models used by the states vary so dramatically. It wasn’t the kind of thing that you could easily chart. There was always a nuance, a twist,” Eisnaugle replied. “I have not fully examined every other state. . . . I could not say certainly there is a state that closely models the federal system.”

Rep. Martin Kiar, D-Parkland, a lawyer, said he was concerned the bills would leave the courts unable to adopt emergency amendments. He noted Congress is in session year-round, while the Florida Legislature meets 60 days a year.

Eisnaugle replied that Congress doesn’t have a process for emergency rules and that he would be happy to talk about that and other concerns as the bill proceeds.

Metz, the Bar’s chief legislative counsel, told the committee the Bar had no official position on these specific measures, but urged the panel to go slowly. He said it is natural for there to be some tension between governmental branches and that the Bar has sent the proposed legislation to more than 400 lawyers involved in the current procedural rulemaking process and should be getting feedback from them.

“We will take this bill and the information that we’ve learned and go back to our Board [of Governors] and take up this issue again. We understand where you’re coming from. We may ultimately disagree that you need to take any action,” Metz said. “One thing I would encourage you to do is go slow.”

Noting that the measure appeared to have the votes to pass, he added, “I hope you’ll bring it back [to the committee] the first couple weeks during the session and have more input on how this would work.”

Richard reiterated that given the number of procedural rules and the number of times they are amended, the actual number of disputes with the Legislature is extremely small. He said the Legislature had several options short of taking over procedural rulemaking. One would be a joint committee of legislators and judges, with a neutral tie breaker, which would be empowered to resolve disputes over rules.

He also said legislators could propose a constitutional amendment with “a more detailed definition of what is procedural and what’s substantive.”

“What you’re doing here is taking over a process you don’t feel there is any need to take over,” Richard argued. “To do more than that is to violate every principle of conservative government that I think we all believe in.”

Committee members were not convinced.

Rep. Larry Metz, R-Eustis, and a lawyer, said the Supreme Court hasn’t been adequately able to define the difference between substantive policy and procedural rules, and he doubts it could be done in a constitutional amendment.

“I believe that this bill addresses a problem that needs to be addressed. I don’t think we can address it by trying to define procedural and substantive. That would be a slippery slope,” he said. “We are the most accountable branch of government of the three. The legislative branch is the one that is most accountable to the people because of the electoral process. At the end of the day, the court system belongs to the people.

“It does require somewhat a leap of faith that we’re going to do it the right way with the judicial conference, but I believe that we will,” he added.

Rep. Matt Gaetz, R-Shalimar, and a lawyer, said there was no good reason for opposing the legislation.

“Either there is a high volume of rules that generate disagreement, or there isn’t,” he said. “If there is . . . that would show the need for a change. If there’s not a high volume, then this isn’t massive power grab,” and opponents shouldn’t be worried there will be much of an actual change.

In his closing arguments on the bills, Eisnaugle derided Richard’s arguments.

“Mr. Richard admitted that there’s a problem. He came to us previously at a meeting and said there was no problem. Today he admitted there is a problem. He admitted it is narrow, but his story is starting to change,” he said. “He said the court should not have the unilateral ability to decide what is procedural and what is substantive. I agree with that. The court should not have the ability to determine the constitutionality of its own rules. . . .”

Richard, at that earlier meeting, said the Legislature and Supreme Court have a history of deference to each other on rules issues, and serious disputes are relatively rare.

“No one has criticized the federal model. He [Richard] didn’t tell you what is wrong with the federal model. He told you how the federal model came about; he told you why it was created. But there wasn’t one moment where he told you what was wrong with it. The point is: Does it work? And everyone agrees it works.”

Last year, Eisnaugle sponsored a bill to overturn and rewrite the criminal Speedy Trial rule. While that measure passed the House, no companion bill was introduced in the Senate and the upper chamber never considered the issue.

The bills — PCB CVJS 11-01 and PCB CVJS 11-02 — are next set to go to the full House Judiciary Committee. No date has been scheduled, but it could be during the first week of session, which began March 8 (after this News went to press). As yet, no companion legislation has been introduced in the Senate.