APA: on rules reduction and rational executive branch reform.

• Author: Chiles, Lawton
• Position: Florida

I applaud The Florida Bar for dedicating this issue of The Florida Bar Journal to the subject of administrative law. Administrative law might appear to be remote, or just a specialty of a handful of Tallahassee lawyers. Let me assure you that, while it might not get the bold headlines of a tobacco suit or the much-touted reform of our tort law, administrative law is a dynamic and quickly evolving area of the law that the people of this state, and their legislature, have ensured that I pay a great deal of attention to.

Just after I took office in 1991, the Florida Legislature took a bold step when it passed F.S. [sections] 120.535. This law required that all agency statements of general applicability be promulgated as rules, or be rendered unenforceable. The point being that agency "policy" was to develop exclusively through rulemaking, and not through case-by-case adjudication. That is, unlike the self-enforcing laws passed by the legislature which may be interpreted through court decision, which becomes part of the common law, interpretations of statutes which are enforced by agencies must be promulgated as rules. The case-by-case adjudication of interpretations of these statutes by agencies is no longer an acceptable method of "making law."

For many reasons, and with the blessing of the courts, agencies had often implemented policies and enforced their interpretations of statutes without engaging in rulemaking. Rulemaking was, and is, a burdensome process, and with the ability (unique to Florida) to delay a proposed rule from becoming effective by challenging it, the path of least resistance often dictated against rulemaking.

As expected, when the option of rulemaking on a case-by-case basis no longer existed, the effect was the massive promulgation of rules, the number of which had never been seen. Unfortunately, in the rush to adopt all agency statements as rules, time was not taken by agencies to perform a thorough and studied review of the agency's rules. The result was yet another layer of rules on top of existing, often outdated rules. Lt. Gov. Buddy MacKay was heard to compare himself to an anthropologist upon having to dig through the many historical ages of one agency's rules.

Interestingly, the same interests that promoted the adoption of [sections] 120.535, next protested the sheer number of rules. Our review showed that while the number of rules is not in itself good or bad, there clearly was a need to clean up the Florida...