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In re Amendments To The Florida Rules Of Judicial Administration

Supreme Court of Florida

September 7, 2017

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION - 2017 REGULAR-CYCLE REPORT.

         THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

         Original Proceeding - Florida Rules of Judicial Administration

          Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Miami Lakes, Florida, Judge Steven Scott Stephens, Past Chair, Rules of Judicial Administration Committee, Tampa, Florida; and John F. Harkness, Jr., Executive Director, and Krys Godwin, Attorney Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

          Robert Joseph Merlin, Chair, Family Law Rules Committee, Coral Gables, Florida, Judge Laurel Moore Lee, Past Chair, and Caroline Black Sikorske, Member, Family Law Rules Committee, Tampa, Florida; Jonathan Adam Galler, Chair, Florida Probate Rules Committee, Boca Raton, Florida, and Michael Travis Hayes and Jon Scuderi, Past Co-Chairs, Florida Probate Rules Committee, Naples, Florida; Kara Ann Fenlon, Chair, Juvenile Court Rules Committee, Tallahassee, Florida, and Ward L. Metzger, Past Chair, Juvenile Court Rules Committee, Jacksonville, Florida; Marty McDonnell, Chair, Criminal Law Section of the Florida Bar, Tallahassee, Florida, and Joel M. Silvershein, Past Chair, Criminal Law Section of The Florida Bar, Fort Lauderdale, Florida; Landis Vernon Curry III, Chair, and Kristin A. Norse, Past Chair, Appellate Court Rules Committee, Tampa, Florida, and Thomas D. Hall, Vice Chair, Appellate Court Rules Committee, Tallahassee, Florida; Michael Thiel Debski, Chair, Small Claims Rules Committee, Jacksonville, Florida, and Alison Verges Walters, Past Chair, Small Claims Rules Committee, Tampa, Florida; Jon Berkley Morgan, Chair, Criminal Procedure Rules Committee, Kissimmee, Florida, and H. Scott Fingerhut, Past Chair, Criminal Procedure Rules Committee, Coral Gables, Florida; and Mikalla Andies Davis and Heather Savage Telfer, Attorney Liaisons, The Florida Bar, Tallahassee, Florida, Responding with Comments

          PER CURIAM.

         We have for consideration The Florida Bar's Rules of Judicial Administration Committee's (RJA Committee) regular-cycle report of proposed rule amendments. See Fla. R. Jud. Admin. 2.140(b)(4). We have jurisdiction[1] and adopt many of the unopposed amendments as proposed. We modify several of the proposals and adopt, on our own motion, additional amendments to further clarify and delineate the current procedures for amending court rules. However, we decline to adopt the opposed amendments that would expand the RJA Committee's responsibilities as the "rules coordinating committee."

         BACKGROUND

         The RJA Committee proposes amendments to Florida Rules of Judicial Administration 2.140 (Amending Rules of Court); 2.510 (Foreign Attorneys); and 2.516 (Service of Pleadings and Documents). The RJA Committee published the proposals for comment before filing them with the Court. The RJA Committee received comments from the Appellate Court Rules Committee (ACR Committee), the Family Law Rules Committee (FLR Committee), and the Small Claims Rules Committee (SCR Committee) objecting to the amendments to rule 2.140(a)(6) that (1) would recognize the RJA Committee as the central rules coordinating committee and reviewer of rules proposals to determine if a proposal is of general or common application and to make recommendations to resolve conflicts, inconsistencies, and redundancy between a proposal and existing or other proposed rules, and (2) would allow the RJA Committee to issue a formal response to the proposals to be included in the rule submissions to the Board of Governors of The Florida Bar and to this Court. After considering the comments, the RJA Committee did not make any revisions to its proposals. The Board of Governors approved all the proposed rule amendments.

         After the RJA Committee filed its report, the Court published the proposed amendments for comment. The ACR Committee, the Criminal Procedure Rules Committee (CPR Committee), the SCR Committee, and The Florida Bar's Criminal Law Section filed comments opposing the proposed amendments to rule 2.140(a)(6). The FLR Committee, the Juvenile Court Rules Committee (JCR Committee), and the Probate Rules Committee (PR Committee) filed a joint comment also opposing those amendments. The comments filed with this Court raise the same objections to the proposed amendments as were raised in the comments submitted to the RJA Committee. The RJA Committee responded to the comments submitted to it in its report and filed a response to the comments filed with the Court.

         AMENDMENTS

         After considering the RJA Committee's proposals, the comments submitted to the RJA Committee and filed with the Court, and the RJA Committee's responses to the comments, we decline to adopt the opposed amendments to rule 2.140(a)(6). However, we adopt the amendments to rules 2.510 (Foreign Attorneys), and 2.516 (Service of Pleadings and Documents), and many of the noncontroversial amendments to rule 2.140 (Amending Rules of Court).[2] We modify several of the proposed amendments to rule 2.140 and, on our own motion, make additional changes to rule 2.140 in order to more fully delineate the current procedures for amending court rules.

         We commend the RJA Committee for its willingness, as our "rules coordinating committee, " to take on more responsibilities to ensure the quality of the rules of court. We also greatly appreciate that committee's efforts to improve communication among the Bar's rules committees and to suggest procedures designed to improve the rule coordination process. However, after considering the proposed amendments to rule 2.140(a)(6) and the comments opposing those amendments and hearing oral argument, we decline to adopt amendments that would require the RJA Committee to have a more involved role in coordinating rule proposals. We agree with the commenters that expanding the RJA Committee's rule coordination responsibilities as proposed could result in undue delay in the rule-making process and unnecessarily overburden the RJA Committee.

         Currently under rule 2.140(a)(6), each rules committee provides the RJA Committee with a copy of all proposed rules changes, and the RJA Committee refers proposed rules changes to any rules committees it determines may be affected by the change. Since this Court recognized the RJA Committee as the rules coordinating committee, that committee has been responsible for identifying rules proposals that might affect other existing or proposed rules and referring those proposals to the appropriate rules committees. See Fla. Bar re Rules of Judicial Admin., 458 So.2d 1110, 1110-11 (Fla. 1984) (adopting rule 2.130(b)(5) effective January 1, 1985 (renumbered 2.140(a)(6)); Fla. R. Jud. Admin. 2.140(a)(6). The Court has explained that this rule coordination function was created "to identify how proposed changes in one set of rules inter-relate with existing and proposed rules in other areas" and to provide "a means for determining the potential impact of rules changes on rules in other areas." Fla. Bar re Rules of Judicial Admin., 458 So.2d at 1110-11. Currently, the affected committees, whose members have expertise in their respective practice areas, are responsible for reviewing the referred rule change and working with the proposing committee to determine what action, if any, should be taken to avoid conflicts and other potential issues with the proposal. While this coordination scheme may not be perfect, it allocates rule coordination responsibilities to the committee best suited to each task. The RJA Committee, with its diverse membership and liaison subcommittee, is best suited to review all proposed rules changes to identify changes that might impact other rules or pending proposals; and the several substantive rules committees are best equipped to work together to resolve identified issues with rules proposals.

         According to the RJA Committee's report and response to the comments, that committee's liaison subcommittee currently reviews all rules proposals to determine how they relate to other rules and whether a proposal should be referred to any potentially affected rules committees for consideration. The liaison subcommittee consists of members from each of the other rules committees who are appointed to serve as liaisons between their respective committees and the RJA Committee. As amended, subdivision (a)(4) of rule 2.140 will specifically require the liaison committee members appointed to the RJA Committee by the chairs of their respective rules committee to "facilitate and implement routine periodic reporting by and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration and their potential impact on other existing or proposed rules." This ongoing active communication between the RJA Committee and the other rules committees about the status of rules proposals will enhance the RJA Committee's rule coordination efforts. While we decline to adopt the proposed amendments that would expand the RJA Committee's rule coordination responsibilities, there is nothing to preclude the RJA Committee from including in its referral to an affected rules committee or providing in a comment submitted to a proposing committee, under rule 2.140(b)(2) or new rule 2.140(e)(2), any information, insights, or suggestions the RJA Committee believes might be helpful to those committees in considering a proposed rule change. In this way, the RJA Committee can take a more active role in resolving potential issues with rule proposals that will not result in undue delay or otherwise detrimentally affect the rule-making process.

         The proposed amendments to rule 2.140 we do adopt are intended to clarify, improve, and streamline the rule-making process. We adopt the amendments to subdivision (a)(2) of rule 2.140, as proposed, to clarify that proposals to amend court rules may be submitted to the Clerk of this Court for referral to the appropriate rules committee, as currently provided, or may be submitted directly to the appropriate rules committee chair or Bar staff liaison to the rules committee. We amend subdivision (a)(4) of rule 2.140, as proposed, to require that members of the RJA Committee have "previous rules committee experience or substantial experience in the administration of the Florida court system." The requirement that the chairs of each rules committee appoint one of the committee's members to "serve as a regular member of the Rules of Judicial Administration Committee" is moved from current subdivision (a)(6) to subdivision (a)(4). And, as noted above, proposed language is added that requires the committee liaisons to "facilitate and implement routine periodic reporting by and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration and their potential impact on other existing or proposed rules." We further amend subdivision (a)(4), as proposed, to clarify that committee liaison members serve at the pleasure of their respective committee chair and to clarify that the president-elect of the Board of Governors appoints sitting members of each rules committee to serve as chairs and vice chairs.

         We also amend subdivision (a)(5) of rule 2.140, as proposed, to ensure that each rules committee shares rule amendment information with other committees in a timely manner by adding a requirement that each committee "promptly and timely" furnish to the other rules committees "all meeting agendas and all minutes or other record of action taken." This change furthers the RJA Committee's goal of improving communication between the rules committees and allows other rules committees, including the RJA Committee, to identify and communicate about potential issues with rule changes even before the proposals are approved and formally submitted to the RJA Committee under subdivision (a)(6).

         We adopt many of the proposed amendments to the other subdivisions of rule 2.140 either as proposed or with some modifications. On our own motion, we also make a number of additional changes to the rule that are consistent with current procedures for amending court rules. First, we modify the proposed new title to subdivision (b) (Schedule for Rules Proposals) to read "Schedule for Regular-Cycle Rules Proposals." We change, as proposed, the date a committee must report revisions to its regular-cycle proposals to the Board of Governors from October 15 to October 31. We make several additional changes to subdivision (b) that are consistent with current procedures for regular-cycle rules changes, such as recognizing that some proposals are considered without oral argument and that regular-cycle rules cases that are scheduled for oral argument are generally scheduled for June. We make the proposed technical changes to subdivision (d) (Emergency Amendments by Court) of rule 2.140 and also make a number of additional changes to more fully delineate the current procedures for amendments adopted on the Court's own motion.

         The RJA Committee proposes extensive amendments to subdivision (e) (Emergency Recommendations by Committee) of rule 2.140, including changing the subdivision's title and adding new subdivisions (e)(1) and (e)(2). We adopt some of the committee's changes as proposed, and modify some of the proposals, including the suggested subdivision titles. We retitle subdivision (e) "Out-of-Cycle Committee Proposals" and title new subdivisions (e)(1) and (e)(2) "Emergency Proposals and Proposals in Response to Legislative Changes" and "Non-Emergency Out-of-Cycle Proposals, " respectively. On our own motion, we make additional changes to this subdivision in order to make this subdivision consistent with current procedures for out-of-cycle rule proposals and to clarify that the rules committees should use their "fast-track procedures" for rule amendments needed due to changes in legislation.

         We make the proposed technical changes to subdivision (f) (Request by Court). On our own motion, we make a number of changes to streamline this subdivision and make it consistent with the current procedures for committee recommendations submitted in response to a request by the Court. We delete much of the existing language in subdivision (f) and add new subdivisions (f)(1) (Recommended Rule Changes) and (f)(2) (No Action Recommendations). New subdivision (f)(1) recognizes that rule changes recommended in response to a request by the Court are currently submitted to the Court in either regular or out-of-cycle reports and the procedures for regular and out-of-cycle proposals generally are followed. New subdivision (f)(2) delineates the current procedure for committee recommendations that no rule change is warranted and requires such recommendations to be submitted to the Court in a "no action report" rather than in a report proposing rule changes under other subdivisions of rule 2.140. This new subdivision also codifies the Court's current practice of having the Clerk of this Court provide notification of the Court's action on the committee's recommendation. These procedures promote the Court's timely consideration of "no action" recommendations and ensure their efficient processing. We also make the proposed technical amendments to subdivision (g) (Amendments to the Rules of Judicial Administration) and make several additional technical changes to that subdivision that are consistent with technical changes being made to other subdivisions of rule 2.140.

         We amend 2.510(a) (Foreign Attorneys; Eligibility), as proposed, to remove the pro hac vice appearance limitation for federally authorized state court appearances by providing that the rule "shall not affect the eligibility of a foreign attorney to appear in a Florida court when authorized by federal law." We have modified the proposed editorial change in item 10 of the "Verified Motion for Admission to Appear Pro Hac Vice" at the end of rule 2.510 that would replace the reference to disciplinary resignation with a reference to disciplinary revocation. As modified, the amendment to item 10 requires the movant to represent that he or she "is not a disbarred member of The Florida Bar nor has Movant received a disciplinary resignation or disciplinary revocation from The Florida Bar." This change recognizes that while a disciplinary revocation has replaced a disciplinary resignation, and since 2006, attorneys have not been able to agree to a disciplinary resignation, there are still former members of The Florida Bar who were granted disciplinary resignations. See In re Amends. to Rules Regulating Fla. Bar, 916 So.2d 655, 656 (Fla. 2005) (deleting rule 3-7.12 (Disciplinary Resignation from the Florida Bar) from the Rules Regulating the Florida Bar effective January 1, 2006); In re Amends. to Rules Regulating Fla. Bar (Biannual Report), 101 So.3d 807, 807-808 (Fla. 2012) (adding rule 3-7.12 (Disciplinary Revocation of Admission to the Florida Bar) to the Bar Rules).

         Finally, we adopt the proposed clarifying and technical amendments to rule 2.516 (Service of Pleadings and Documents). Subdivision (b)(1)(E)(i) (Format of E-mail for Service) is amended to require the "case style" be included in the subject line in a service e-mail. The amendment to subdivision (b)(2) (Service by Other Means) provides that service in that situation must be made by "noting the non-service in the certificate of service, and stating in the certificate of service that a copy of the served document may be obtained, on request, from the clerk of the court or from the party serving the document." According to the report, this amendment is intended to avoid the failure of service in situations when a pro se litigant has not designated an e-mail address and no physical address is known.

         CONCLUSION

         Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2018, at 12:01 a.m. Because the amendments to rule 2.140 that are adopted on the Court's own motion have not been published for comment, interested persons shall have sixty days from the date of this opinion in which to comment on those amendments.[3]

         It is so ordered.

          LABARGA, CJ, and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ, concur

          APPENDIX

         RULE 2.140. AMENDING RULES OF COURT

         (a) Amendments Generally. The following procedure shall be followed for consideration of rule amendments generally other than those adopted under subdivisions (d), (e), (f), and (g):

         (1) [No Change]

         (2) Proposals shall be submitted to the clerk of the supreme court, the committee chair(s) of a Florida Bar committee listed in subdivision (a)(3), or the Bar staff liaison of The Florida Bar in writing and shall include a general description of the proposed rule change or a specified proposed change in content. The clerk of the supreme court shall refer proposals to the appropriate committee under subdivision (a)(3).

         (3) [No Change]

         (4) Each committee shall be composed of attorneys and judges with extensive experience and training in the committee's area of practice of the committee calling for regular, frequent use of the rulesconcentration. Members of the Rules of Judicial Administration Committee shall also have previous rules committee experience or substantial experience in the administration of the Florida court system. The chair of each rules committee shall appoint one of its members to the Rules of Judicial Administration Committee to serve as a regular member of the Rules of Judicial Administration Committee to facilitate and implement routine periodic reporting by and to the Rules of Judicial Administration Committee on the development and progress of rule proposals under consideration and their potential impact on other existing or proposed rules. The members of theeach rules committee shall serve for 3-year staggered terms, except members appointed by a rules committee chair to the Rules of Judicial Administration Committee who shall serve at the pleasure of the respective rules committee chairs. The president-elect of The Florida Bar shall appoint sitting members of each rules committee to serve as the chair(s) and vice chair(s) of each committeefor each successive year.

         (5) The committees shall consider and vote on each proposal. The rules committees may originate proposals and are charged with the duty ofshall regularly review and reevaluation ofreevaluate the rules to advance orderly and inexpensive procedures infor the administration of justice. The committees shallconsider and vote on each proposal. The rules committees may accept or reject proposed amendments or may amend proposals. The rules committees shall keep minutes of their activities, which minutes shall reflect the action taken on each proposalprepare meeting agendas and minutes reflecting the status of rules proposals under consideration and actions taken. Copies of the minutes shall be furnished to the clerk of the supreme court, to the board of governors of The Florida Bar, and to ...


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