Title 234--RULES OF CRIMINAL PROCEDURE [234 PA. CODE CH. 1] Proposed Amendment to Rule 6 Local Rules [30 Pa.B. 2573] Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 6. The proposed amendments clarify the definition of local rules, procedures concerning the implementation of local rules, and their enforcement. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to Rule 6 precedes the Report. Additions are shown in bold and are underlined; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 no later than Monday, June 5, 2000.
By the Criminal Procedural Rules Committee
J. MICHAEL EAKIN,
ChairAnnex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES Rule 6. Local Rules.1
(a) For the purpose of this rule, the term ''local rule'' shall include every rule, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, [which is] adopted or enforced by a court of common pleas to govern criminal practice and procedure, which requires a party or party's attorney to do or refrain from doing something.
* * * * * (c) [To be effective and enforceable] A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
* * * * * (e) No case shall be dismissed nor request for relief granted or denied because of failure to comply with a local rule. In any case of noncompliance with a local rule, the court shall alert the party to the specific provision at issue and provide a reasonable time for the attorney to comply with the local rule.
[(e)] (f) * * *
Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended ______ , 2000, effective ______ , 2000.
Comment * * * * * The caption or other words used as a label or designation shall not determine whether something is or establishes a local rule; if the definition in paragraph (a) of this rule is satisfied the matter is a local rule regardless of what it may be called. The provisions of this rule are also intended to apply to any amendments to a ''local rule.'' Nothing in this rule is intended to apply to case-specific orders.
* * * * * Paragraph (c) was amended in 2000 to emphasize that the adopting authority must comply with all the provisions of paragraph (c) before any local rule, or any amendments to local rules, will be effective and enforceable.
[It is contemplated under subparagraph] Paragraph (c)(5) requires that a separate consolidated set of local rules [shall] be maintained in the prothonotary's or clerk's office.
* * * * * The purpose of paragraph (e) is to prevent the dismissal of cases, or the grant or denial of requested relief, because a party has failed to comply with a local rule. In addition, paragraph (e) requires that the party be alerted to the local rule, and be given a reasonable amount of time to comply with the local rule.
After the court has alerted the party to the local rule pursuant to paragraph (e), the court may impose a sanction for subsequent noncompliance either on counsel or the defendant if proceeding pro se, but may not dismiss the case, or grant or deny relief because of non-compliance.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments published at 30 Pa.B. 2574 (May 27, 2000).
(Editor's Note: The following shows the amendments to new Rule 105. See 30 Pa.B. 1477 (March 18, 2000).)
Rule 105. Local Rules.
(A) For the purpose of this rule, the term ''local rule'' shall include every rule, regulation, directive, policy, custom, usage, form or order of general application, however labeled or promulgated, [which is] adopted or enforced by a court of common pleas to govern criminal practice and procedure, which requires a party or party's attorney to do or refrain from doing something.
* * * * * (C) [To be effective and enforceable.] A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
* * * * * (E) No case shall be dismissed nor request for relief granted or denied because of failure to comply with a local rule. In any case of noncompliance with a local rule, the court shall alert the party to the specific provision at issue and provide a reasonable time for the attorney to comply with the local rule.
[(E)] (F) * * *
Comment * * * * * The caption of other words used as a label or designation shall not determine whether something is or establishes a local rule; if the definition in paragraph (A) of this rule is satisfied the matter is a local rule regardless of what it may be called. The provisions of this rule are also intended to apply to any amendments to a ''local rule.'' Nothing in this rule is intended to apply to case-specific orders.
* * * * * Paragraph (C) was amended in 2000 to emphasize that the adopting authority must comply with all the provisions of paragraph (C) before any local rule, or any amendments to local rules, will be effective and enforceable.
[It is contemplated under subparagraph] Paragraph (C)(5) requires that a separate consolidated set of local rules [shall] be maintained in the prothonotary's or clerk's office.
* * * * * The purpose of paragraph (E) is to prevent the dismissal of cases, or the grant or denial of requested relief, because a party has failed to comply with a local rule. In addition, paragraph (E) requires that the party be alerted to the local rule, and be given a reasonable amount of time to comply with the local rule.
After the court has alerted the party to the local rule pursuant to paragraph (E), the court may impose a sanction for subsequent noncompliance either on counsel or the defendant if proceeding pro se, but may not dismiss the case, or grant or deny relief because of non-compliance.
Official Note: Rule 6 adopted January 28, 1983, effective July 1, 1983; amended May 19, 1987, effective July 1, 1987; renumbered Rule 105 and amended March 1, 2000, effective April 1, 2001; amended _____ , 2000, effective _____ , 2000.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments published at 30 Pa.B. 2574 (May 27, 2000).
REPORT Proposed Amendments to Pa.R.Crim.P. 6 LOCAL RULE PROCEDURES I. Background
In 1983, the Court adopted Pa.R.Crim.P. 6 and Pa.R.Civ.P. 239 ''to facilitate the statewide practice of law under this Court's general rules, and to promote the further policy that a general rule of criminal [and civil] procedure normally preempts the subject covered.'' Court's adopting Order, 13 Pa.B. 760 (February 19, 1983). The new rules provided a uniform definition of local rules, prerequisites to effectiveness and effective dates, procedures for accessibility and distribution, and for the suspension of inconsistent local rules.
Since the 1983 adoption of Rule 6, the Committee has been monitoring local criminal rules and local practices. Experience has shown Rule 6 is being honored in the breach, which hampers rather than promotes the statewide practice of law. Some judges continue to implement local practices and procedures that do not comply with Rule 6 by calling them something other than a local rule, even though they are local rules within the definition of Rule 6. Often ''local rules'' are not published or made available to the members of the bar, and as sanctions for non-compliance, some local rules provide for the dismissal of the case. In many cases, these local practices and procedures conflict with the statewide rules.
Over the years, the Committee has attempted to work with the judicial districts on problem local rules, and has been successful in resolving many of the conflicts. However, there continues to be frustration for the Committee, as well as counsel, because we are not aware of many local rules since the rules are not published or publically available as required in Rule 6. In addition, the Supreme Court's Judicial Council has undertaken a statewide study of local rules and the problems encountered by practitioners.
In view of the Judicial Council's study, and recognizing the Committee has not been completely successful in resolving the problems with local rules, we agreed that as a first step, Rule 6 should be amended to make the definition of ''local rule'' clearer and the requirements for the effectiveness and enforceability of local rules more emphatic, and to address limitations on the sanctions for non-compliance with local rules. The proposed amendments are discussed below.
II. Discussion
A. Definition of ''Local Rule''
One of the major problems uncovered as we researched the issue of local rules is that some president judges issue orders that are intended to govern local practice and procedure, but do not call them local rules and do not comply with Rule 6. Bypassing the Rule 6 requirements impedes the statewide practice of law and violates the spirit, if not the letter, of Rule 6. With this in mind, the Committee is proposing an amendment of the definition of ''local rule'' that will emphasize that the label or designation is not determinative, but rather it is the content, purpose, and effect that control. Paragraph (A) would be amended by the addition of the phrase ''which requires a party or party's attorney to do or refrain from doing something.'' This strengthens the definition by making it clear that any locally mandated practice or procedure requiring some action or inaction is indeed a local rule.
B. Prerequisites to Effectiveness
The Committee agreed another step in clarifying the rule would be to underscore the requirements that must be followed before a local rule will be effective and enforceable. To accomplish this, the introductory phrase for paragraph (C) would be reworded to place emphasis on the fact that, unless the requirements of Rule 6 are followed, the local rule is not effective nor enforceable. Accordingly, we are proposing the introductory phrase be changed to state:
A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
C. Sanctions
When Rule 6 was recommended to the Court in 1982, the Committee had not included a provision similar to the one included in Civil Rule 239 prohibiting the dismissal of an action for violation of a local rule. The Committee reasoned that ''in practice such dismissals rarely occur, if at all in criminal cases,'' and therefore such a provision was unnecessary. See Committee explanatory Report, 13 Pa.B. 761 (February 19, 1983). Experience with local rules has demonstrated the opposite to be true: cases are dismissed, or requests for relief are granted or denied, when a party fails to comply with a local rule; and this is a major concern among practitioners.
Recognizing one of the major problems contributing to non-compliance is that many local rules are not published, and are not easily accessible, the Committee concluded that it was inappropriate to dismiss cases in these circumstances. Considering how best to resolve the problem of lack of notice and address sanctions, the Committee agreed to propose (1) the prohibition of the dismissal of a case and the grant or denial of a request for relief because of failure to comply with a local rule, and (2) placing with the court the responsibility for alerting a non-complying party to the specific provision of the local rule. The court also would be required to provide the party with a reasonable amount of time to comply. These provisions would be new paragraph (E).
Although agreeing with the proposal, some members expressed concern that the ''sanction'' limitation in new paragraph (E) might be construed as limiting a judge's options when a party in a particular case refuses to comply with procedural orders that apply only to that case. For clarification purposes, the Committee agreed to add a provision to the Comment pointing out the distinction between local rules of general application and orders or directives regulating the procedures in a particular case, i.e., ''case-specific'' orders.
Finally, the Committee agreed to add as the last paragraph of the Comment a provision explaining how to proceed when an attorney fails to comply even after being alerted to the local rule and given time to comply--the attorney should be sanctioned rather than the case being dismissed or the relief granted or denied. The Comment explains that when the party continues to ignore the local rule, the only appropriate sanctions would be against the attorney who is not complying, or the non-complying defendant if proceeding pro se.
[Pa.B. Doc. No. 00-874. Filed for public inspection May 26, 2000, 9:00 a.m.] _______
