Who should make the rules?
Who should make the rules?
RJA examines its role in procedural rulemaking
Senior Editor
“So who died and made you boss?”
Rules of Judicial Administration Committee member Sandy Solomon quoted that favorite saying of his mother as he summed up reaction to activities of a subcommittee he chairs. The subcommittee is charged to look at how much rules of procedure for different areas of law can be consolidated into the Rules of Judicial Administration.
His report to the full committee at the Bar’s Annual Convention set off a philosophical debate among committee members similar to what Solomon encountered when working with other procedural rules committees. Some members felt that rules common to all areas should be in the Rules of Judicial Administration, with the specific procedural rules for specific areas — civil, appellate, criminal, juvenile, family, traffic, small claims, probate — should be relatively small to accommodate the idiosyncratic needs of those areas.
Other members argued that each practice area should have the flexibility to adapt as many rules as possible to their specific needs, with only a relatively few rules in common with other practice areas.
Solomon said that dichotomy is what his subcommittee found.
“At the first meeting, we had a very simple consensus: Everyone agreed that rules of general application should find their home in the Rules of Judicial Administration,” he said. “Then we got into the details and everyone else fell off the truck.”
There was little agreement, he added, on when rules “were sufficiently common or of general application. It was an insurmountable roadblock.”
Committee member Ashley Myers, who also serves on the Family Law Rules Committee, noted the Family Law Committee has embarked on a complete rewrite of its procedural rules. Currently, family law uses the Rules of Civil Procedure as its base with exceptions as needed, plus the Rules of Judicial Administration that apply to all areas of practice. She argued that the joint, common rules between different practice areas should be as minimal as possible, with each practice area having the maximum ability to craft rules to its special needs.
“What is a rule of common application for administrative purposes? Does RJA get to decide; are we going to rely on liaisons [to RJA from other rules committees]?” she asked. “What about. . . when other [procedural] committees suggest that we need an exception? What’s the procedure for that, and who decides if they get their exception? Does RJA make the initial determination or does it ultimately get argued before the Supreme Court?”
She noted that family law has a large number of pro se parties who don’t understand that, currently, the rules of civil procedure apply unless there is a conflict with the family procedural rules, which will take precedence. However, if there’s a conflict with family rules and the Rules of Judicial Administration, then the latter will apply, Myers said.
“Specialization has been the trend in law, and I submit that is why the rules have gotten the way that they have, in which each area is focusing on what’s best for its own area of practice,” she said. “To me, all the rules common for family law belong in the same place. . . . That’s partly why [the] Family [Law Rules Committee] tried to consolidate, so that pro se litigants don’t have to look in three different places for procedural rules.”
Joel Silvershein, liaison to the Juvenile Court Rules Committee, said the RJA had no mandate to be the “boss” on seeing uniform, basic rules.
“To me, this is a power grab by this committee,” he said. “This profession has developed to a point where it’s specialized to no end, and no one has asked this committee to all of a sudden take the lead in doing this.
“Juvenile Court Rules Committee’s position is you should look in one place to do a simple function. The way it is set up, you have to look in two [sets of procedural rules] to do a simple function,” Silvershein added. “The law is supposed to be logical, and it is illogical to look at two sets of paper to do a simple thing.”
Committee member Amy Borman suggested that each set of procedural rules could specify at the start the Rules of Judicial Administration that apply to all areas, which would make using the rules easier for lawyers and pro se parties.
Committee member Paul Regensdorf said the trend has been toward more stand-alone procedural rules with fewer rules in common, and there’s been no serious attempt to look at the ramifications or seek guidance from the Supreme Court.
“Maybe we should have eight different concepts of rules. Lawyers will have to learn nine [counting the Rules of Judicial Administration] different ways to serve or nine different ways to do things,” he said. “We’re going to be faced shortly with a large increase in these rules. As a system, I don’t believe it’s a good way to run.”
Outgoing committee member Keith Park said there is a lack of coordination among the procedural rules committees, and a proposed rule change in one area might affect other procedural rules.
“If this system was working correctly, when the situation came up in civil rules — ‘Hey, we need to change that’— they should have come to family law rules, or it comes to this committee and this committee looks at those things. But we have to have some kind of timely notice,” he said.
Park said it was proper for RJA to tackle the issue, noting, “If we’re going to have some consistency, then I don’t know of any other rules committee that can do this.”
The committee took no vote or action on the issue, and Solomon said his subcommittee will meet again to explore common ground among the procedural rules. He invited input from Bar members, who can contact him at Stanford R. Solomon, The Solomon Law Group, P.A., 1881 W. Kennedy Blvd., Tampa, 33607-1606, or via email at [email protected] .
