May 1, 2005 Managing Editor Regular News Procedural rule-making proposal still on the table Procedural rule-making proposal still on the table Yet vote on the measure keeps getting postponed Mark D. Killian Managing Editor House lawmakers again debated a constitutional amendment to give the legislature more control over writing procedural rules for the courts, although this time in a new format.On April 14, the House Justice Council took up HJR 1007, by Rep. Dick Kravitz, R-Orange Park, which originally would have created a judicial conference to propose criminal rules of procedure, similar to the process used to create procedural rules in the federal courts — except the legislature would appoint members of the panel instead of the Supreme Court. But when the bill was taken up, Kravitz offered a strike all amendment — which rewrote the bill — which the committee accepted.HJR 1007 now contemplates having the Supreme Court continuing to adopt procedural rules, but amends the constitution to give the legislature the power to overturn those rules by a simple majority of each chamber, instead of the current two-thirds vote of the membership. The measure also holds that nothing in the constitution “shall be construed to restrict or limit the power of the legislature to enact laws relating to substantive or procedural matters.” The resolution also says the courts may not regulate any aspect of collateral or postconviction judicial review of a criminal judgment or sentence, except as authorized by general law, and that no procedural rule shall be inconsistent with general law or modify any substantive right.While the pros and cons of the bill were thoroughly debated, at the end of the day, the committee deferred a final vote on the resolution at the request of its sponsor. The bill was again scheduled for a vote April 18, but time allotted for the House Justice Council expired before the bill was taken up. It was back on the council’s April 22 agenda, after this News went to press.“I understand there are some folks who feel like this bill is a challenge to the separation of powers,” said Kravitz, an insurance/business consultant. “Let me assure those who feel that way that my respect for the judicial branch is unwavering. Having said that, let me point out that as an elected official, who has to seek a vote of confidence from the public every two years, that I feel the legislative branch of government votes to carry out public policy in the form of the statutes and then are told the will of the public is null and void because it falls under procedural jurisdiction of the judicial branch. To me that violates the separation of powers doctrine.”Rep. Dean Cannon, R-Winter Park, a lawyer, said all the measure does is clarify that it is the court’s responsibility to write practice and procedure rules, “but as to matters of legislative policy — and that includes both the venue and jurisdiction, the appellate courts’ rights, and procedures and all of the time frames — that is the purview and the responsibility of the legislature to articulate.”Randy Ball, representing the Governor’s Office, said Gov. Jeb Bush supports the measure and said in several instances the courts have “intruded into the domain of the legislature.“His point is not to disparage or insult the court, but he does feel the legislature has a right to be a little bit frustrated,” Ball said. “They have come in and trumped carefully crafted legislation as it relates to the death penalty, DNA testing, [and] the execution of the mentally retarded.”Ball said while good people can disagree over what is substantive and what is procedural, the only thing the resolution does is make clear — whenever there is doubt — that the legislature has the right to pass laws relative to procedural rules.“You have, in effect, a couple of cases you are not happy with.. . and that is not a reason to change the constitution,” said Steve Metz, the Bar’s chief legislative counsel, adding that the current requirement of a two-thirds vote to overturn procedural rules represented the “ultimate balancing and respect the three branches have for each other.”Metz said if the legislature has the ability to repeal a procedural rule by a simple majority, “you have in effect the ability to write every court rule.” He questioned why the legislature would want to do that at a time it is considering other legislation to create higher standards to amend the constitution.Major Harding, a former Supreme Court justice, argued the proposed resolution would be a significant change in the way the courts have conducted business over the past 50 years in regard to the checks and balances among the three branches of government.“I think the question that is before this committee is whether or not we should abandon 50 years of practice of constitutionally investing in the Supreme Court the rule-making authority, and that was done without equivocation in 1956,” Harding said, adding that in 1972 the constitution was amended to allow the legislature to overturn a procedural rule by a two-thirds vote, same as it takes to override a gubernatorial veto.“There is no need to change 50 years of constitutional tradition,” Harding said.Harding said the court has a long history of being deferential to the wishes of the legislature and that the court’s current rule-making procedures provide an opportunity for any number of different opinions to be expressed. He also said the court holds oral arguments before adopting any procedural rules to provide everyone an opportunity to weigh in.Harding also said over the past 30 years the court has only undone a statute because it encroached on rule-making eight times. In five of those instances, the court only made the change because it was conforming the rules to new legislation.“It is only with great reluctance that the court strikes down bills or determines that they are procedural and therefore violative of the constitution,” said Harding, who also noted that he wrote the opinion which struck down the Death Penalty Reform Act of 2000.(HB 1005, to be known as the Death Penalty Reform Act of 2005, is traveling with HJR 1007 and reenacts the provisions of the Death Penalty Reform Act of 2000, which the court struck down. It advances the start of the state postconviction process in capital cases by requiring the appointment of counsel while the case is on direct appeal, known as a “dual track” or “parallel track” process. The bill creates statutory time limitations on the filing of postconviction actions and limits the filing of successive postconviction claims. The panel voted 8-2 to move that bill before it took up HJR 1007, and some believe the court’s decision in that case is one of the driving forces behind the joint resolution.)Harding said the court stuck down the Death Penalty Reform Act of 2000 not to say “this is not a good thing” or that it disliked the idea, but because in order to make dual tracking work, the legislature needed to remove a public records exemption so the collateral appeal could meaningfully begin at the same time as the direct appeal, a position the state conceded in oral arguments when it acknowledged that existing statutes made critical documents inaccessible to capital defendants. He said that has yet to be done and if it had, “we would have been dual tracking postconviction since 2000,” Harding said.Bar President Kelly Overstreet Johnson told the committee that when a similar proposal was considered a year ago the Bar offered to amend its rules to have legislators or their staffs sit on every one of the 10 court rules committees so there would be legislative input on the front end of any rule-making the court does.“Unfortunately, that never went anywhere,” Johnson said, adding that the Bar also has a rule now pending with the court that would require the governor, speaker of the House, and Senate president be formally notified of any proposed procedural rule amendments. “We think this will give the communication necessary and allow input before the court considers these rules.”“There is no evidence the current system is not working,” Johnson said. “Indeed, I believe the evidence is the opposite.”In the Senate, SJR 1942 — sponsored by Sen. Victor Crist, R-Tampa, and similar to the first incarnation of HJR 1007 — had been scheduled for debate in the Senate Criminal Justice Committee April 20, but was pulled from the agenda the morning of the meeting. Later in the meeting, Crist indicated he would not pursue SJR 1942 again this session.