Court Rulemaking in Washington

This article suggests that Washington court rule controversies arise 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 and accountability. This article first reviews the classical separation of powers doctrine. The discussion then focuses on internal procedural safeguards that also serve within each power center to discourage arbitrary or ill-considered action. This article then reviews the history of court rulemaking in Washington and in other jurisdictions and 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.

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.