Anyone that regularly reads this blog has likely noticed references to the Florida Supreme Court's decision Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 494 (Fla. 2004). A history of practice rules in workers' compensation is detailed in Separation of Powers - An Interesting Analysis (February 2017). Notably, there is an error in that 2017 post; the conclusion that the first procedural rules came in 1973 is untrue, though much digging is necessary to prove it. That is for another day. It is fair to say that the first Supreme Court workers' compensation rules were in 1973.
An intriguing element of the Supreme Court's analysis in 2004 was its recognition that it had no authority to promulgate rules for this executive agency. The conclusion came 30 years after the court began providing those rules. Thirty years of complex history, laid bare by the court. Perhaps intriguing is not sufficient.
This is not the only interesting story of Florida rules, however. The legal practice today accepts without question the necessity and efficacy of the Rules of Civil Procedure. But, there was a time before those rules. In a published opinion Florida State Bar Ass'n for Promulgation of New Florida Rules Of Civil Procedure, 145 Fla. 223 (Fla. 1940) the Court addressed the lawyer's desire for such rules (this predated "The Bar," back when there was "a bar"). The petitioners included the "Florida State Bar Association," a voluntary group, and representatives with names like Dixie Beggs, and J. Turner Butler. A majority of five justices denied the petition.
The petitioners argued that the "court has inherent power to adopt the Florida Rules of Civil Procedure." The Chief Justice said the "inherent power" topic had been often discussed, and that there was general acceptance that courts had such power, as well as authority over admission to practice law and contempt. (The concurring and dissenting opinions delve more deeply into inherent authority).
The court acknowledged that in Florida the rule responsibility was shared, and the legislature's authority was "supplemental to the power of the courts. It even cited specific statutory authority for the enactment of rules of process, "Section 4682, Compiled General Laws of 1927."
The court noted that it could not create a rule that would repeal a statute, but that the proposal being made for rules would effectively "amend, modify, or repeal more than 350 statutes." It expressed challenges in determining distinctions between substantive and procedural issues, that is what is appropriate for rules and what should be left to the legislature. It recognized that the law evolves, and noted that what was "substantive law today may become procedural law tomorrow, and vice versa."
The Court also focused upon the efficacy of court-made rules, and the trend evolving then, following the enabling and adoption of federal rules in 1938. The Court denied the petition concluding it had "no supervisory jurisdiction" over the courts, that the rules would affect many statutes, that the substantive/procedural conflicts would be "impossible," and that the Florida enabling act was faulty in its delegation of authority. That last one is interesting as the 2004 workers' compensation decision above dealt specifically with inappropriate delegation, separation of powers, and more.
The 1940 opinion is engaging. Celebrating the modern era in 1940, the Chief justice expresses wonder noting it was "inconceivable" that litigants of that age could "transact business by the press of a button, the aid of a dictaphone, or the switch of a gadget." He celebrated the age of "high-powered cars," the evolution of air travel and other contemporary achievements. Those acquainted with that modern world, he suggested, might not be satisfied "to travel the highway to justice on the back of an ass, and if ultimately secured, record it at the point of a goose quill."
No, the modern age had come. The court "owe(d) it to society to hike the administration of justice off the ass." He lamented the reluctance for change and that "[t]he processes of democracy are often slow and tedious." Despite that admission that reluctance was steeped in fear, he explained that change for the sake of change was not appropriate. The Chief Justice concluded "[u]surpation is the arch foe of the democratic process," and the petition was "therefore denied." Like the outcome or not, the opinion is wonderfully written. (The majority was "Terrell, Whitfield, Brown, and Thomas;" Justices "Buford and Chapman" dissented).
Only 363 days later, Florida, the United States, and the world was arguably a different place. By December 7, 1941, perhaps everyone recognized priorities other than what was substantive or procedural? The debate was thus muted, but not extinguished. The lawyer petitioners returned to the court as the Second World War began to wane, and the Court published another opinion Petition of Fla. State Bar Ass'n for Adoption of Rules for Prac. & Proc., 155 Fla. 710, 21 So. 2d 605 (1945), shortly before V-E day.
The Court acknowledged further recent legislative action specifically
"authoriz(ing) the Supreme Court of Florida to Prescribe Rules, Forms of Process, Writs, Pleadings, Motions and the Practice and Procedure in Actions Either at Law or in Equity."
Thus, to the extent rule-making was legislative, there was yet again the effort to delegate. The breadth and detail can be clearly seen as focused upon the Court's 1940 reticence. Encouraged by the new law, the bar association (still not "The Bar") petitioned again for the adoption of rules, "patterned after the Federal Rules of Civil Procedure." The Court conceded that the necessity for such rules was patent. It is interesting that none of the demonstrated reticence was ever about lack of need.
The Court provides a detailed history of laws governing the practice of law in Florida, dating to the 19th century (Florida became a territory in 1822 and a state in 1845). Thus, on the state's centennial, the subject of separation of powers and inherent authority was at the fore as America emerged into the Baby Boom. The Court recounted its previous efforts at rulemaking "approached . . . in a pragmatic way," without troubling with "the niceties of such concepts as inherent power." The Court congratulated itself on its forbearance and "repeated() recogni(tion of) the power of the Legislature."
The Court engaged in a discussion of best practices as regards rules. Rules should establish a process "rigid enough to be workable and flexible enough to adjust itself." And, the "bench and bar" must jointly actuate it. That said, the Court concluded that contemporary procedure had "not kept step with the times." The time had come, it suggested, for sharpening of tools and attempting an alternative approach.
The Court, somewhat eschewing humility, noted its superior "facilities, the technical knowledge, and experience" equipping it "much better" for the challenge of rules "than the Legislature." There is pride, and some embrace of the "mom and apple pie" argument in the Court's conclusion that it could "make the administration of justice everything that the man of the street has been taught to expect of it." Essentially, this opinion concludes that "the responsibility is on someone to do this and the bar is the logical source."
That said, the Court concluded that substituting the Federal rules into Florida practice to be neither "wise (n)or expedient." It noted distinctions, that the federal system was "materially different from our State system." The distinction seems to have focused on the narrow scope of federal practice compared to the "variety of suits and statutory proceedings that arise in state practice." Unlike (purportedly) the United States, "Florida has a practice peculiar to a jurisprudence predicated on the common law and is supported by more than one hundred years of precedents."
The denial of the 1945 petition was unanimous ("Chapman, C. J., And Terrell, Buford, Thomas, Adams, And Sebring., Concur. Brown, J., concurs in judgment" - those in red were involved in the 1940 decision: The majority was "Terrell, Whitfield, Brown, and Thomas; Justices "Buford and Chapman" dissented).
An intriguing story? Perhaps. It was a history fraught with recognitions. Many saw a flawed system. The Constitution seemed to convey authority. The Court acknowledged a perception of Legislative superiority. The Legislature seems to have been accommodating and deferential, delegating at will. And yet, as a new age dawned there were no adopted civil procedure rules. Every lawyer today knows the Florida Rules of Civil Procedure. Everyone in workers' compensation litigation uses them persistently, though the Court has not foist them here (the DOAH incorporated and adopted them).
And so, as the Grandson says in The Princess Bride: "Who gets Humperdinck?" Or, perhaps instead, "Then where did these rules come from?" Any lawyer could check the subsequent history of either of these Court decisions and find the subsequent published opinion in which the Civil Rules were adopted. Any lawyer could, but that would not yield the answer. No, the Court published two opinions declining to adopt rules.
The Rules were adopted finally in 1954. However, no published opinion has been located. The state archives include a copy of an order dated March 15, 1954 and titled "1954 FLORIDA RULES OF CIVIL PROCEDURE ORDER," with a stated "effective date June 1, 1954." (unpublished opinion). This was seemingly unanimous, ("Roberts, C. J., Terrell ('40 and '45), Thomas ('45), Sebring ('45), Hobson, Mathews, and Drew"); See also, Winston Arnow & Clarence Brown,“Florida's 1954 Rules of Civil Procedure,” 7 U. Fla.L.Rev. 125, Vol 3., Number 2, (1954). It is intriguing to read the names of some of those involved in these heady debates and decisions.
The path upon which we pause has thus been long and at times apparently arduous. The instigation of rules is but one waypoint worthy of study. The next was the transition of "a bar association" of legislatively licensed attorneys into The Florida Bar, an integrated bar under the authority of the same Supreme Court. Through the history of perceived needs and expertise, the Court did not leap eagerly into the business of procedural rules. However, the result has been notably positive on the practice of law generally. The way forward looks toward the centennial of those rules.
As convinced as Chief Justice Terrell was of the modernity of the world in 1940, they had not conceived of the cellular phone, email, text messages, the Internet, and more. Though it is certain he lived in a world of wonder, so do we. And, as we look back at his wonder and aplomb, one wonders what the next 80 years will bring to shatter our perceptions of technological and academic superiority?
It is intriguing, with the benefit of retrospect, that the Court jumped so willingly into workers' compensation rules in 1973, a mere 20 years after the Civil Rules. In perspective, a great deal has changed in the Florida practice of law in the last century, and perhaps we would all do well to pause periodically to consider that history and evolution.
