NCJ Number
54306
Date Published
1978
Length
91 pages
Annotation
DATA FROM A SURVEY OF STATE COURT SYSTEMS ARE CITED IN AN EXAMINATION OF ISSUES PERTAINING TO THE LOCUS OF THE COURT RULEMAKING PROCESS, PUBLIC ACCESS TO THAT PROCESS, AND ACCOUNTABILITY OF RULEMAKERS.
Abstract
ADVOCATES OF EXPANDING THE AUTHORITY OF COURTS TO ESTABLISH THEIR OWN PROCEDURAL AND ADMINISTRATIVE RULES HAVE MAINTAINED THAT THIS AUTHORITY IS NECESSARY TO ENSURE JUDICIAL INDEPENDENCE AND THE SEPARATION OF POWERS. (PROCEDURAL RULES DEFINE THE MANNER IN WHICH LITIGANTS MAY ASSERT SUBSTANTIVE RIGHTS, WHEREAS ADMINISTRATIVE RULES CONCERN THE INTERNAL OPERATIONS AND MANAGEMENT OF COURTS.) THOSE WHO OPPOSE THE CENTRALIZATION OF RULEMAKING AUTHORITY IN THE COURTS EXPRESS CONCERN REGARDING THE INTERESTS OF THE GENERAL PUBLIC IN OBTAINING ACCESS TO THE RULEMAKING PROCESS AND IN MAINTAINING THE ACCOUNTABILITY OF RULEMAKERS. TRADITIONALLY THE VALUES OF ACCESS AND ACCOUNTABILITY ARE ASSERTED IN TERMS OF LEGISLATIVE INVOLVEMENT IN RULEMAKING, ALTHOUGH SOME ARGUE FOR THE ADOPTION OF QUASI-LEGISLATIVE RULEMAKING PROCEDURES SIMILAR TO THOSE USED BY ADMINISTRATIVE AGENCIES. IN THE AREA OF PROCEDURAL RULEMAKING, THE STATES HAVE RECONCILED THE VALUES OF JUDICIAL INDEPENDENCE, ACCESS, AND ACCOUNTABILITY BY GRANTING EXTENSIVE RULEMAKING AUTHORITY TO THE COURTS WHILE MAINTAINING LEGISLATIVE INVOLVEMENT. THIS ARRANGEMENT APPEARS TO BE VIABLE, HAVING PRODUCED LITTLE EVIDENCE OF CONFLICT BETWEEN COURTS AND LEGISLATURES. HOWEVER, STATE SUPREME COURTS ARE INCREASINGLY USING THEIR RULEMAKING AUTHORITY FOR ADMINISTRATIVE PURPOSES, ADOPTING RULES DESIGNED TO MINIMIZE COURT CONGESTION AND DELAYS AND TO CENTRALIZE COURT PERSONNEL MANAGEMENT. THIS GROWING ADMINISTRATIVE USE OF JUDICIAL RULEMAKING AUTHORITY COMBINES WITH THE INCREASING RELIANCE ON LAWYERS AND ADMINISTRATIVE EXPERTS IN THE RULEMAKING PROCESS, THE OVERALL PERVASIVENESS OF LEGAL INSTITUTIONS AND LEGAL RELATIONS IN THE UNITED STATES, AND THE ENLARGEMENT OF THE COURTS' SUBSTANTIVE POLICYMAKING ROLE TO BRING NEW URGENCY TO THE ISSUES OF ACCOUNTABILITY AND ACCESS. IT APPEARS THAT ACCESS AND ACCOUNTABILITY CAN BE MAINTAINED THROUGH JUDICIAL ADOPTION OF QUASI-LEGISLATIVE RULEMAKING PROCEDURES, SUCH AS THOSE BEING FASHIONED IN NORTH DAKOTA AND WISCONSIN. BUT WHETHER SUCH PROCEDURES WILL PROVE EFFECTIVE IN EXPANDING PARTICIPATION IN THE RULEMAKING PROCESS IS NOT YET KNOWN. A BIBLIOGRAPHY AND SUPPORTING DATA FROM THE SURVEY OF STATE COURT SYSTEMS ARE INCLUDED. SEE NCJ-54307 FOR A COMPENDIUM DESCRIBING RULEMAKING IN EACH OF THE STATES. (LKM)