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Boston v. Buchanan12/23/2003
d from statute, the rule has statutory dimension. Lastly, if the rule is drawn from the body of common law, it has no more than common-law status. The legislature can by statute repeal any court-fashioned rule that rests either on common-law or statutory authority, but it is powerless to effect a change in constitutional law whose corpus embraces the regime of the courts' inherent power. Rulemaking is one of three legitimate functions of the judiciary. The other two are adjudication and management. Judicial rulemaking is characterized as the judiciary's legislative function. Its use is severely restricted because Oklahoma's judicial department is without constitutional lawmaking power over procedure. That function belongs to the legislature.
Rule 9(b), adopted for the district courts together with many others, was promulgated under the aegis of the court's explicit statutory authority. The court's promulgation power for all the provisions that constitute the Rules for the District Courts was drawn not from the constitution but rather from legislative law. In short, Rule 9(b), when given birth, clearly was not intended to rise above the level of statutory law.
By today's pronouncement the first two sentences of Rule 9(b) are said to restate one "aspect of a court's inherent power recognized at common law." In this context the court misuses the term "inherent power" by making it fit for application to norms inferior to those of a constitutional dimension. By equating inherent power with the common law, the court has today impermissibly and erroneously elevated a statutory rule to one of a constitutional dimension. If the rule were, as the court pronounces, a product of the constitution-anchored inherent power, the legislature would indeed be impotent to change its text by enacting a different procedural regime. Today's elevation of Rule 9(b) 's status is neither necessary nor legally correct. The posture of this case does not call for testing whether the authority for Rule 9(b) provisions may be claimed to have been derived from inherent power and now qualifies their text for elevation to constitutional status.
C. TODAY'S SUA SPONTE ELEVATION OF A STATUTE-AUTHORIZED RULE TO A CONSTITUTIONAL DIMENSION OFFENDS THE TIME-HONORED PRINCIPLE THAT NOT EVEN THE PRESSED CONSTITUTIONAL ISSUES WILL BE REACHED FOR RESOLUTION IN ADVANCE OF STRICT NECESSITY
Elevating a statute-authorized rule to a constitutional level creates a new norm of constitutional law. It is incorrectly accomplished here sua sponte. This is so because there is absolutely no necessity for its creation. Even when a pronouncement is pressed for by the parties (and not made sua sponte, as the court does today), a constitutional issue will not be reached in advance of strict necessity. This sine qua non principle of constitutional judicature is plainly ignored and patently offended today.
The sua sponte elevation of Rule 9(b), originally promulgated as statute-anchored and never before foreshadowed as having a pretense to constitutional status, gives that rule alone - out of many others - complete protection from legislative abrogation. Today's sudden sua sponte shift in the Rule 9(b) status will likely produce an unwelcome legislative response and is apt to dissuade the lawmaking body from its past practice of authorizing broad-scale judicial rulemaking.
I would not elevate to a constitutional dimension a norm of law, which initially came to life within the judicial system as statute-authorized, (a) in advance of strict necessity and (b) without adequate foreshadowing of the contemplated status change.
II. THE RECORD FOR APPEAL DOES NOT OVERCOME THE PRESUMPTION OF
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