Court Rulemaking in Washington State

University of Puget Sound Law Review, Vol. 6, No. 1, pp. 31-73 (1982)

University of Washington School of Law Research Paper

43 Pages Posted: 18 Mar 2015

See all articles by Hugh D. Spitzer

Hugh D. Spitzer

University of Washington - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 1982


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 in advance to govern activities related to the judicial system? 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.

Two issues associated with court rulemaking are (1) the proper extent of court authority over political issues with a significant budget impact; and (2) the ability of an appellate court, in its administrative capacity, to promulgate rules which may later be challenged in court and appealed to that same body on constitutional or statutory construction grounds. Another problem argues for closer attention to internal procedural safeguards in the court rulemaking process. More effective inclusion of people with varied experiences or representing interested institutions in the rulemaking process will help avoid such drafting oversights.

This article suggests 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 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.

Keywords: court rules, rules of procedure, state constitutional law, separation of powers, judicial administration

Suggested Citation

Spitzer, Hugh D., Court Rulemaking in Washington State (1982). University of Puget Sound Law Review, Vol. 6, No. 1, pp. 31-73 (1982), University of Washington School of Law Research Paper, Available at SSRN:

Hugh D. Spitzer (Contact Author)

University of Washington - School of Law ( email )

Box 353020
Seattle, WA 98195-3020
United States
206-685-1635 (Phone)


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