BOUNDS OF POWER - JUDICIAL RULE-MAKING IN ILLINOIS

• NCJ Number: 54743
• Journal: Loyola University Law Journal Volume: 10 Issue: 1 Dated: (FALL 1978) Pages: 100-114
• Author(s): J C NEW
• Date Published: 1978
• Length: 15 pages
• Corporate Author: Loyola University of Chicago
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE EVOLUTION OF THE SEPARATION OF POWERS DOCTRINE AS APPLIED TO COURT RULEMAKING AUTHORITY IN ILLINOIS IS TRACED, WITH DEPARTURE FROM CONCURRENT RULEMAKING EXAMINED IN PEOPLE VERSUS JACKSON (1977).

Abstract

IN THE ABSENCE OF ANY DEFINITIVE BOUNDARY BETWEEN THE RULEMAKING AUTHORITY VESTED IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF GOVERNMENT IN ILLINOIS, BOTH THE JUDICIARY AND THE LEGISLATURE HAVE ADOPTED COURT RULES. THE ILLINOIS CONSTITUTIONAL CONVENTION OF 1969-1970 ESPOUSED THE CONCURRENT RULEMAKING APPROACH AND DELEGATED TO THE COURTS THE TASK OF ESTABLISHING THE BOUNDARY BETWEEN THE LEGISLATURE AND THE JUDICIARY. ILLINOIS COURTS ARE FORBIDDEN FROM PROMULGATING SUBSTANTIVE LAW (ESTABLISHING OF RIGHTS, SETTING DUTIES, GRANTING RELIEF), SINCE THAT IS THE EXCLUSIVE PROVINCE OF THE LEGISLATURE. THE COURTS ARE RESTRICTED TO THE FORMULATION OF PROCEDURAL RULES (COURT ADMINISTRATION AND ACTIVITY). THIS DISTINCTION IS DIFFICULT TO APPLY, AS SUBSTANTIVE RIGHTS ARE OFTEN INEXTRICABLY INTERWOVEN WITH PROCEDURAL REGULATIONS. WHILE THE COURTS HAVE GENERALLY DEFERRED TO THE LEGISLATURE BY AWARDING A SUBSTANTIVE LABEL TO LAWS FALLING WITHIN THE GRAY AREA BETWEEN SUBSTANCE AND PROCEDURE, AN INCREMENTAL TREND TOWARD EXPANDING JUDICIAL AUTHORITY IN RULEMAKING, AT THE EXPENSE OF THE LEGISLATURE, HAS ACCELERATED WITHIN THE LAST DECADE, CULMINATING IN THE PEOPLE VERSUS JACKSON. IN THIS CASE THE ILLINOIS SUPREME COURT ASSERTED JUDICIAL DOMINANCE OVER THE REGULATION OF VOIR DIRE PROCEEDINGS, DENYING JACKSON'S COUNSEL THE RIGHT TO EXAMINE JURORS ALTHOUGH SUCH A RIGHT WAS EXPLICITLY AUTHORIZED BY STATUTE. THE VOIR DIRE STATUTE WAS VOIDED BECAUSE IT CONFLICTED WITH A SUPREME COURT RULE THAT PRESCRIBED A COURT-CONDUCTED VOIR DIRE EXAMINATION. THIS JUDICIAL EXTENSION DEMONSTRATES A DISREGARD FOR THE TRADITIONAL SEPARATION OF POWERS DOCTRINE AND CONTRAVENES THE INTENT OF THE CONSTITUTIONAL DRAFTERS. (RCB)