March 2, 2011
URGENT
MESSAGE
RE:
House Bills CV J1 and CV J2
FLORIDA
HOUSE OF REPRESENTATIVE'S JUDICIARY COMMITTEE'S
LEGISLATIVE PROPOSALS TO REMOVE
RULEMAKING AUTHORITY
FROM
THE FLORIDA SUPREME COURT
Fellow
Section Member:
I am
writing to you today to ask a favor of you. Please take a few moments
out of what I suspect is a very busy day to read the rest of this
letter and the accompanying attachments. My letter was
precipitated by another urgent
message forwarded yesterday to our Section by Mr. Paul Hill, Esquire,
General Counsel for The Florida Bar.
Over
the past several years there has been, what seems like, an annual
effort by one legislator or another to propose legislation aimed at
removing rule-making authority from the Supreme Court of Florida.
The Florida Bar has steadfastly and successfully opposed any
attempt to change the rule-making process, based in major part, on the
integrity of the separation of powers doctrine contained within our
State Constitution.
However,
this year the House Judiciary Committee itself has proposed changes to
the rule-making authority of the Florida Supreme Court that could have
major negative repercussions for the citizens of Florida and the
judicial branch of government during a time when that branch is most
vulnerable because of continuing budget shortfalls. The
encroachment on the separation of powers doctrine, a concept that our
founders framed so many years ago, is in itself an appropriate reason
for opposing this legislation. This proposed change is the apex
of a very slippery slope, which if enacted, when extrapolated to
its furthest point, could ultimately result in the regulation of our
profession by legislative edict.
House
Bills CVJ1 and CVJ2 have
"traction" and were overwhelmingly approved by the House
Judiciary Committee during Committee meetings last week. The
Bills provide for the statutory amendment of Article V of Florida's
State Constitution, in tandem with statutory changes, that would
prospectively strip rule-making authority from Florida's Courts place
it in the hands of the Florida Legislature.
The
proponents of this legislation claim it is based on the current Federal
model. However, the structure of the Federal Court system
is substantially different from our State court system.
This distinction is critical and the proposal to graft the
Federal rule-making model on our State system is ill-advised.
What is the distinction? Well, the United States
Constitution initially empowered Congress to create and maintain the
lower courts in the Federal judicial system and granted Congress the
concurrent authority to enact laws regulating the conduct of those
Courts. However, in 1934 the United States
Congress ceded back to the Supreme Court the authority to
promulgate proposed rules subject to Congressional
limitations on that authority. This critical distinction does
not exist under the proposed legislative changes in CVJ1 and CVJ2.
The
Family Law Section is concerned that the failure to recognize this
distinction in the proposed legislation is critical.
Although this
proposed legislation is said to "mirror" the Federal
legislation it clearly does not. It is at odds with the
current Federal Rules of Practice and Procedure wherein the Congress
has authorized and recognized the unique and appropriate role of the
federal judiciary to "prescribe" (which means
"approve" or "give) the proposed rules to
the Congress to reject, modify or defer. Congress does not
initially recommend the proposed rules. See the Rules Enabling
Act 28 USC Sections 2071-2077. If Congress does not reject,
modify or defer then the proposed rules take effect on December 1st.
If you
share The Florida Bar's concerns about CVJ1 and CVJ2 and want to
help, time is of the essence. Please make your voice heard by:
- Contacting
the members of the House Judiciary Committee and express your
concerns to them. Their names, telephone
numbers and email addresses are set forth in Mr. Hill's email
- Contacting
your own House Representative and express your concerns to them.
- Providing
input to The Florida Bar on how to constructively respond to this
legislation as detailed by Mr. Hill's email.
A
form letter with talking points are included in the attachments to this
email to assist you in crafting your communication.
Thank you for taking the time to read this letter and the
attachments.
Staff
Analysis PCB CVJS 11-01
Staff
Analysis PCB CVJS 11-02
Comment
Separation of Powers
Talking
Points Re Procedural Rules
Sincerely,
DIANE M. KIRIGIN, CHAIR
Family Law Section, The Florida Bar |
