THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Order Amending Rule 61; No. 265; Criminal Procedural Rules; Doc. No. 2
[30 Pa.B. 5841] The Criminal Procedural Rules Committee has prepared a Final Report explaining the October 24, 2000 amendments to Pa.R.Crim.P. 6 (Local Rules). These amendments, effective January 1, 2001, (1) more clearly define ''local rule,'' (2) emphasize the requirements that must be followed before a local rule is effective and enforceable, and (3) establish procedures for the enforcement of local rules with a limitation on the sanctions for non-compliance. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 24th day of October, 2000, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 30 Pa.B. 2573 (May 27, 2000), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 749), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Criminal Procedure 6 is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2001.
Annex A
Title 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES Rule 6. Local Rules.
[(a)] (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.
[(b)] (B) * * *
* * * * * [(c)] (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:
(1) A local rule shall be in writing.
* * * * * (6) A local rule promulgated before the effective date of this rule shall be filed on or before that effective date with the prothonotary or clerk of court and shall be kept by the prothonotary or clerk for inspection, copying, and furnishing as provided in [sub] paragraph [(c)] (C)(5).
[(d)] (D) A local rule shall become effective not less than [thirty] 30 days after the date of publication of the rule in the Pennsylvania Bulletin.
(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) The Criminal Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule and may suspend that local rule pending action by the Court on that recommendation.
Comment The policy of the Supreme Court as declared in the Order promulgating this rule is ''to implement the unified judicial system under the Constitution of 1968, 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 procedure normally preempts the subject covered.'' In accordance with the Court's policy, it is intended that local rules should not repeat general rules or statutory provisions verbatim or substantially verbatim nor should local rules make it difficult for attorneys to practice law in several counties.
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)] (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.
To simplify the use of local rules, local criminal rules are required to be given numbers that are keyed to the number of the general criminal rules to which the local rules correspond. This requirement is not intended to apply to local rules that govern the general business of the court and which do not correspond to a general criminal rule.
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 (c) ] Paragraph (C)(5) requires that a separate consolidated set of local rules [shall] be maintained in the prothonotary's or clerk's office.
Although under paragraph [(d)] (D) a local rule shall not be effective until at least 30 days after the date of publication in the Pennsylvania Bulletin, when a situation arises that requires immediate action, the local court may act by specific orders governing particular cases in the interim before an applicable local rule becomes effective.
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 October 24, 2000, effective January 1, 2001.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the October 24, 2000 amendments published with the Court's Order at 30 Pa.B. 5842 (November 11, 2000).
FINAL REPORT2
Proposed amendments to Pa.R.Crim.P. 63
LOCAL RULE PROCEDURES On October 24, 2000, effective January 1, 2001, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 6 (Local Rules) to (1) more clearly define ''local rule,'' (2) emphasize the requirements that must be followed before a local rule is effective and enforceable, and (3) establish procedures for the enforcement of local rules with a limitation on the sanctions for non-compliance.
I. Background
Since the 1983 adoption of Pa.R.Crim.P. 6 (Local Rules), the Committee has been monitoring local criminal rules and local practices. Experience has shown Rule 6 is being honored in the breach, and this circumvention of the Rule 6 requirements 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 clearly are local rules within the definition of Rule 6. Often these ''local rules'' are not published or made available to the members of the bar, which only serves to impede the ability of out-of-county practitioners to practice in that judicial district. We also found that some local rules provide for the dismissal of the case as sanctions for non-compliance. Finally, 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, the Committee continues to be frustrated in its efforts, and counsel are hindered in their representation of defendants, because many local rules continue not to be published or publicly available as required in Rule 6.
Recognizing the Committee has not been completely successful in resolving the problems with local rules, we agreed that some action was necessary, and, 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.4 The amendments are discussed below.
II. Discussion
A. Definition of ''Local Rule''
One of the major problems uncovered as the Committee 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. As noted above, 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 agreed that the definition of ''local rule'' should be strengthened. Paragraph (A) has been amended by the addition of the phrase ''which requires a party or party's attorney to do or refrain from doing something,'' which makes it clear that any locally mandated practice or procedure, no matter what its label or designation, 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) has been reworded to place emphasis on the fact that, unless the requirements of Rule 6 are followed, the local rule is not effective or enforceable.
C. Sanctions
When the Committee recommended Rule 6 in 1982, we did not include 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, if at all, occur 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 criminal rule, and this is a major concern among practitioners, as well as for the Committee.
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 the rule should (1) prohibit 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) place 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 have been incorporated into 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 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, rather than the case being dismissed or the relief granted or denied.
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1 Rule 6 will be renumbered Rule 105 as part of the renumbering and reorganization of the Rules of Criminal Procedure the Court adopted on March 1, 2000, effective April 1, 2001.
2 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
3 Rule 6 will be renumbered Rule 105 as part of the renumbering and reorganization of the Rules of Criminal Procedure that the Court adopted on March 1, 2000, effective April 1, 2001.
4 The Committee is aware that the Supreme Court's Judicial Council has undertaken a study of statewide local rule practices, and we reviewed our proposal with the Judicial Council's local rules subcommittee staff prior to submission to the Court to insure that the proposed changes to Rule 6 were consistent with the Judicial Council's work.
[Pa.B. Doc. No. 00-1931. Filed for public inspection November 10, 2000, 9:00 a.m.]
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