Rulemaking

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					                              FACTS VS. FICTION – Rulemaking




Fiction: “The proposed amendment is necessary to “check” the Court’s ability to ignore a 2/3 veto of a procedural
rule, especially since procedural rules often encroach on substantive law making. For example, when the Court struck
down the Death Penalty Reform Act (DPRA) of 2000, it “eliminated the Legislature’s ability to address by general law the
protracted nature of death penalty post-conviction claims.” Furthermore, court speedy trial rules are another example of
the court’s abuse of its rulemaking power.”


FACT:    Legislative rhetoric complaining of the court’s exercise of its rulemaking function often ignores the historical
cooperative interplay between the legislative and judicial branches to effectuate substantive law. It also ignores the
constitutional basis for judicial decisions regarding procedural rules.

For example, the court held that the not only did the DPRA intrude on the court’s rulemaking authority, but it also
violated defendants’ constitutional rights of due process and equal protection. In addition, instituting a dual-track
system for the handling of death penalty cases would require legislative action to remove the prosecutorial work-
product privilege that remains until the Supreme Court issues its mandate – a change in the public records law that the
Legislature has failed to pursue. Furthermore, the Legislature itself had recognized that it was promulgating rules of
procedure which were properly within the domain of court and deferred to the court’s authority in the exercise of the
rulemaking function and willingly anticipated rule revisions. The court subsequently adopted two new rules, consistent
with legislative intent, establishing procedures in order for the post conviction process to begin immediately upon the
issuance of the mandate affirming the judgment and sentence of death on direct appeal.

Similarly, speedy trial rules are another exercise of procedural rule-making that are based in both the Florida
Constitution and US Constitution and endorsed by statute. Article I, section 16(a) of the Florida Constitution guarantees
a right to a speedy trial, as does Amendment 6 of the United States Constitution. Section 918.015, Florida Statutes,
delegates to the Court the responsibility for determining by rule the means for realizing that constitutional right.
Section 960.0015, Florida Statutes, places a number of procedural requirements on the courts in order to effectuate the
constitutional right to a speedy trial.

				
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posted:10/27/2011
language:English
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