Court Rulemaking in Washington State

• Publication year: 1982

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No.1FALL 1982

Court Rulemaking in Washington State

Hugh Spitzer(fn*)

I. Introduction

Courts are not normally thought of as "legislating" agencies. They are either trial level institutions deciding individual cases, or they are appellate bodies interpreting the law. But what happens when state courts "legislate" rules(fn1) in advance to govern activities related to the judicial system? As Federal District Judge Jack Weinstein puts it: "Court rules have much the form and effect of legislative enactments."(fn2) Several recent controversies in Washington State raise the question whether a system of court-adopted rules of procedure is compatible with the "separation of powers" model of government.

One such controversy arose in 1980, when the supreme court for the first time required verbatim electronic recording of misdemeanor trials in municipal and district courts and abolished trials de novo in the superior courts for these offenses. Although the action was ostensibly at the command of the legislature,(fn3) municipalities objected that the rule went beyond the legislature's mandate, was too costly, and adopted too rapidly.(fn4) The purpose of the new requirement was to upgrade the quality of justice in courts of limited jurisdiction, but defense lawyers claimed that it infringed on certain jury trial rights,(fn5) exceeded state constitutional authority,(fn6) or abolished appeal rights guaranteed by state statutes.(fn7)

A different problem arose out of a 1973 supreme court speedy trial rule requiring that criminal defendants be brought to trial within sixty or ninety days "following the preliminary appearance" in court.(fn8) Because of recurring problems defining which of several pretrial proceedings constituted the "preliminary appearance" contemplated in the rule, Washington's Judicial Council recommended a 1978 rewording of the rule that would require the speedy trial within sixty or ninety days of arraignment.(fn9) But the Judicial Council's draft did not define when an arraignment had to occur. The supreme court noticed this and entirely rewrote the rule, requiring a trial within sixty or ninety days of arrest, or from the point at which a defendant was "bound over" [transferred] from the jurisdiction of a district or municipal court to the superior court.(fn10) Because the supreme court rewrote the rule without involving Judicial Council staff or the Council's trial judge, attorney, or legislative members, the new version itself contained loopholes allowing prosecutors to delay trials past sixty or ninety days. Under the court's revised 1978 speedy trial rule, prosecutors frequently delayed the date of "bindover" of felonies from the district to superior courts in order to gain time before trial. When this practice became apparent, the court again rewrote the rule, this time with the extensive involvement of a special task force and the Judicial Council.(fn11) At roughly the same time, the supreme court was placed in the uncomfortable position of having to "rewrite" the meaning of the earlier version in the context of a specific criminal appeal. In so doing, they released a convicted rapist in a controversial case where prosecutors believed they had brought him to trial within a technically correct time period.(fn12)

These two instances illustrate two problems associated with court rulemaking. The criticisms made by the municipalities and defense lawyers in the first example above, whether valid or not, raise questions as to the proper extent of court authority over political issues with a significant budget impact. They also raise a question as to whether an appellate court, in its administrative capacity, should promulgate rules which may later be challenged in court and appealed to that same body on constitutional or statutory construction grounds. These questions indicate a breakdown or lack of clarity in the separation of powers doctrine(fn13) as applied to Washington rulemaking procedure. The second problem, that of the numerous speedy trial redrafts, argues for closer attention to internal procedural safeguards in the court rulemaking process.(fn14) More effective inclusion of people with varied experiences or representing interested institutions in the rulemaking process will help avoid such drafting oversights.

These case histories describe only two of several recent instances of interbranch conflict over court rules(fn15) and criticisms resulting from rules drafted too quickly(fn16) or without involvement of interested parties.(fn17) This article will suggest that these Washington court rule controversies arose from the lack of a clear, constitutionally established apportionment of rulemaking powers between the legislative and judicial branches, and that there is a lack of procedures providing adequate internal safeguards or accountability. Although the supreme court has generally issued rules of high quality which have improved Washington's system of justice, the high court's insistence on sole ultimate control of procedural rules has caused practical problems and disputes between branches. These problems and disputes might be avoided if the court were not wedded to a politically and philosophically untenable theory of "inherent" power over rulemaking. A systematic sharing of rule promulgation would give better results.

This examination first reviews the classical separation of powers doctrine. That doctrine, which Washington's Supreme Court recently called "a fundamental principle of the American political system,"(fn18) is meant to discourage arbitrary government action and encourage better decisions by allowing people grouped in separate institutional power centers to check each other. Then the discussion focuses on internal procedural safeguards that also serve within each power center to discourage arbitrary or ill-considered action.

Washington's Supreme Court takes the position that it has inherent power over all varieties of court rules,(fn19) and that while the involvement of other branches in rulemaking may be desirable, those other institutions have no automatic rights or powers in this field. In order to better examine the logical coherency of this principle, and its sense from a policy standpoint, we must review the history of court rulemaking in Washington and in other jurisdictions; it appears that the assertion of "inherent" court power of rulemaking cannot be founded solely on past practice because many courts, including Washington's both in the past and today, have de jure or de facto shared rulemaking power with the legislature. This article suggests that from a logical view, the scope of sole judicial power over rulemaking should be limited to control of those rules necessary to the very existence and functioning of the courts; beyond that, policy considerations argue for a recognized legislative role: specifically, a limited "legislative veto" over court rules.

Finally, this article urges that court rules would be better drafted and better reflect competing institutional needs if they were regularly promulgated according to a fixed procedure by an independent Judicial Council rather than by the state supreme court. This approach would both save the justices' time for appellate work and protect the integrity of the court as an appellate body when it is called upon to review the constitutionality of court rules.

A. Separation of Powers: Theory and Practice

In America's classical theory of separation of powers, the executive, legislative, and judicial branches have separate jobs to do, and they also function in different ways: the executive carries out policy through command; the legislative branch passes laws prescribing general policy in advance; the courts interpret the law and resolve conflicts on a case-by-case basis, and they protect individual rights and the general structure of government by blocking unconstitutional or statutorily unauthorized actions by other branches.(fn20)

In the view of the Framers, the judiciary was inherently the weakest branch. Alexander Hamilton wrote in the Federalist No. 78: The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment. . . . (fn21) (Emphasis in original.)

Yet many Americans knew at the time the Constitution was written, or have since learned, that the courts can be quite powerful.(fn22) Most of the Constitution's drafters also knew that the mixing and sharing of different kinds of power between the various branches was unavoidable;(fn23) in many instances it has come to appear desirable.(fn24) Over time it has become clear that "separation of powers" really means separate but often overlapping power centers, each with its own peculiar instruments of authority that can be called forth and played as trumps when...