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Rules chairs take a deep dive into report to streamline the rulemaking process

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The report, “Evaluation of Development and Review of Court Rules Proposals by The Florida Bar Rules Committees,” was commissioned by the Bar and conducted by outside consultant Lisa Kiel, a former Florida State Courts Administrator.

Bar rules committees are beginning to craft a response to a new study that recommends reducing committee sizes, accelerating meeting schedules, and establishing deadlines to streamline the rule-development process.rules

“We have created an ad hoc committee, if you will, that consists of the chairs of most of the rules committees,” said Appellate Court Rules Committee Chair Andrew Manko, a Tallahassee administrative law judge.

As his committee convened January 20 in Orlando for Winter Meeting, Manko acknowledged that the report has generated some objections.

But he assured the panel that the recommendations are far from final.

“We’ve just begun that process. We’re awaiting instructions from the Bar as to what it is they wanted us to do,” he said. “It’s certainly not a done deal.”

The report, “Evaluation of Development and Review of Court Rules Proposals by The Florida Bar Rules Committees,” was commissioned by the Bar and conducted by outside consultant Lisa Kiel, a former Florida State Courts Administrator.

Kiel was directed to determine whether the process could be made more streamlined and efficient, and to make recommendations for improved interaction with the Supreme Court before rule proposals are filed, “to ensure rule proposals are consistent with the Supreme Court’s direction, to the extent that is possible.”

Kiel reviewed, among other things, Supreme Court opinions on amending the rules of the court, previous Bar studies, and Supreme Court Internal Operating Procedures. She interviewed various stakeholders, including Supreme Court Justice Ricky Polston, First District Court of Appeal Chief Judge Stephanie Ray, Supreme Court Clerk John Tomasino, retired Supreme Court Clerk Tom Hall, and Florida Bar Board of Governors member Laird Lile.

Kiel found that no major restructuring of the process was warranted.

“Given the number of rule proposals being considered at any given time, using Bar member volunteers supported by Bar staff still appears to be a reasonable approach for development of proposals for Florida’s court rules,” the report states. “Models in other states, i.e., rule commissions, rule development by Supreme Court staff, etc., would take significant restructuring of the current process, and also might require more resources being provided to the court system by the Legislature.”

The report noted the last time the Supreme Court reformed the rule-making process was 2019, when justices eliminated the three-year reporting cycle.

“The Court noted the rule changes were needed to ‘streamline the process and provide for more expeditious rule making,” the report states. “Still, the concerns about unnecessary delay persist.”

The report notes that at least two of 10 court rules committees have more than 50 members, and three have more than 40 members. Some of the experts Kiel consulted consider that “unwieldly.”

A proliferation of vice chairs appears to be causing confusion, according to the report. It found that a 58-member committee and a 35-member committee each has four vice chairs.

The report recommends limiting committees to 36 members, the same number the Supreme Court set in SC20-145 (Fla. 2020) when it adopted new Rule 2.270 governing committees on standard jury instructions.

“Since the Court has set this standard for the jury instruction committees, it would seem a reasonable standard for the rules committees,” the report states.

Such a limit would impact six of the 10 committees, according to the report. They could reach the goal by not replacing current members after their terms expire, the report recommends.

The report suggests that committee chairs be appointed from existing rules committees for two-year terms, and the number of vice chairs on each committee be limited to two.

Committees should meet at least four times a year and conduct at least some of their business remotely, the report recommends.

“Timetables” should be established for the completion of work on each referral, the report recommends.

The committee chair and Bar staff liaison “should develop a schedule of activities that need to occur with target dates for completion of each, based on the complexities of the work needed,” the report states.

“While every deadline might not be met, and for legitimate reasons, setting an expectation for all involved of completion of work by a particular date helps individuals to organize their time in such a way as to accomplish that goal,” the report notes.

The chairs of all the rules committees met once, and the ad-hoc committee of about 10-15 rules chairs has met subsequently and is scheduled to meet again in a few weeks, Manko said.

The panel is waiting for a response from the Bar to determine the next step in crafting a response, he said.

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