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Sources of Parliamentary Procedure: A New Precedence for Legislatures

ASLCS Home Page

Parliamentary law probably originated before the beginnings of the English Parliament, even though its name is based upon that institution. Civilization itself is largely the result of organized group activities, and ever since man began cooperating with his fellows, there have been some sort of rules of procedure for assembled groups. The development of parliamentary procedure has gone hand in hand with the struggle for liberty and the working out of the idea of self-government.1

One basic principle of general parliamentary law is that every assembly—whether large or small, legal or volunteer—has an inherent right to regulate its own procedure. But where do deliberative bodies look for guidance when establishing procedure?

There are several sources of parliamentary process. As already indicated, general parliamentary law is one source of rules of procedure. Procedural rules are found in constitutions, charters, bylaws, statutes, court decisions, and parliamentary manuals. A body’s own traditions, customs, and precedents also indicate established practices.

Historic Precedence
It is not enough to know of where to look for rules of parliamentary procedure. The next question becomes: In what order do the rules from the various sources take precedence?

According to Robert’s Rules of Order Newly Revised, the kinds of rules a society may formally adopt are corporate charter, constitution or bylaws, rules of order, and standing rules.2 Alice Sturgis recognized four basic sources of parliamentary rules and ranked them as follows:3

1. Law
2. Charter
3. Bylaws
4. Adopted parliamentary authority

In his 1979 edition of Mason’s Manual of Legislative Procedure, Paul Mason set the order of precedence shown below.4 The same precedence was maintained by the Mason’s Manual Revision Commission in the 1989 edition of the book.5

a. Constitutional rules
b. Fundamental legal principles
c. Statutory rules or charter provisions
d. Adopted rules
e. Adopted parliamentary authority
f. Parliamentary law
g. Customs and usages
h. Judicial decisions

Changing the Precedence
For decades, the precedence of the sources of parliamentary procedure remained relatively constant. However, in the 2000 edition of Mason’s Manual of Legislative Procedure, the Mason’s Manual Revision Commission reordered the precedence as follows:6

a. Constitutional provisions and judicial decisions thereon
b. Adopted rules
c. Custom, usage and precedents
d. Statutory provisions
e. Adopted parliamentary authority
f. Parliamentary law

What prompted the Commission to make this change? Why move "adopted rules" to a higher rank? It was, in many ways, a commitment to Paul Mason himself. Whenever he revised his Manual, Paul Mason reviewed other parliamentary authorities, current legislative chamber rules, and recent court cases to keep the procedures set out in the Manual as up-to-date as possible.

The Mason’s Manual Revision Commission followed Mason’s general revision process. Because all Commission members work for legislative chambers, they did not want to operate modern legislatures with outmoded rules and procedures. As a result, the Commission was willing to look for weaknesses or to identify processes to be revamped. It uncovered substantial supporting documentation for the change in precedence.

For almost every legislature, the right to regulate its procedure is set out by state constitution. Typically, the authority is granted by substantially the following language: "Each house may determine the rules of its proceedings."

In fact, as shown in Table 1, the North Carolina Constitution is the only one that does not contain specific language to this effect.

Another general parliamentary principle is that one legislature cannot bind a subsequent legislature’s process. This premise draws its main strength from the constitutional provisions noted above.

Two other concepts—more subtle, but equally significant—are imbedded in the general premise that one legislature cannot bind a future one. The "rules and procedures" clause guarantees protection for 1) the legislative branch of government and 2) the two co-equal bodies (Nebraska excepted) within each legislative branch. The clause ensures that the executive branch cannot assert itself into the internal operations (rules and procedures) of a legislative body through the exercise of a veto. This aspect of the clause’s protection does not apply, however, when procedural rules are incorporated into a statute. The clause also ensures that one chamber may not intrude itself into the internal operations of the other chamber. For example, a senate may not wish to follow a procedural statute that was enacted five years ago and that applied equally to both chambers. If its only recourse were to amend the procedural statute rather than to simply adopt its own chamber rule to the contrary, the senate’s internal processes would be subject to the current will of both the house and the governor.

Hughes’ American Parliamentary Guide contains a supporting provision. Section 3 of Chapter 1, entitled "Extent of Power to Make Rules," states " … the National House of Representatives has repeatedly decided that the power to make its own rules may not be impaired or controlled by the rules of a preceding House, or by a law passed by a prior Congress."7

Numerous legal decisions also support these premises and other basic principles, such as separation of powers. Several examples are provided below.

¨ In Coggin v. Davey, the court ruled that a " … House or Senate may pass an internal operating rule for its own procedures that is in conflict with a statute formerly enacted."8

¨ A similar decision was the outcome of People’s Advocate, Inc. et al. v. Superior Court of the County of Sacramento, with the court stating, a " … House of the Legislature cannot estop itself or a future house by use of statutory form from adopting any rule the substance of which is within powers exclusively delegated by the State Constitution."9

¨ In Brinkhaus v. Senate of State of Louisiana, the court contended, "If we entertain such litigation as presently before us, the judicial branch will find itself involved in the daily operations of the legislative branch settling "controversies" between the presiding officers of either house and the members thereof as well as controversies between legislators themselves. We would end up as a "super" senate or a "super" house of representatives, and the judicial branch would be in violation of Art. III, Sections 2 and 7(A) of the Louisiana Constitution…"10

Other supporting citations that are noted in the 2000 edition of Mason’s Manual are:

¨ Manigault v. Springs (1905), 199 U.S. 473, 487, 26 S.Ct. 127, 133, 50 L.Ed. 274
¨ Opinion of the Justices (1951), 146 Maine 183, 189-90, 79 A.2d 753, 756
¨ MSHA-Dep. Trust (Maine 1971), 278 A.2d 699, 707-08
¨ Edgerly v. Honeywell (Maine 1977), 377 A.2d 104
¨ Sierra Club v. Froehlke (5th Cir. 1987), 816 F.2d 205, 215
¨ Peterson v. U.S. Dept. of Interior (9th Cir. 1990), 899 F.2d 799, 808, cert. Denied
¨ Baker v. Carr (1962), 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682, on remand
¨ Malone v. Meekins (Alaska 1982), 650 P.2d 351, 356
¨ Moffitt v. Willis (Fl. 1984), 459 So.2d 1018, 1021
¨ Abood v. League of Women Voters of Alaska (Alaska 1987), 743 P.2d 333, 337
¨ Des Moines Register v. Dwyer (Iowa 1996), 542 N.W.2d 491
¨ Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L.Ed. 60
¨ Weeks v. Smith (Maine 1989), 18 A. 325, 81 Maine 538
¨ United States v. Smith (1932), 286 U.S. 6, 33, 52 S.Ct. 475, 478, 76 L.Ed. 954, 958-59
¨ Consumers Union of United States, Inc. v. Periodical Correspondents’ Assoc. (D.C. Cir. 1975), 515 F.2d 1341, 1345-48, 169 U.S.App.D.C. 370, cert. Denied
¨ Zemprelli v. Daniels (1981), 436 A.2d 1165, 496 Pa. 247
¨ La Follette v. Stitt (Wis. 1983), 338 N.W.2d 684, 688, 114 Wis.2d 358

Effect of Changing the Order of Precedence
Although the background and reasons for the Commission’s decision to reorder the precedence have been explored, an obvious question must be addressed. What practical effect will modifying the order of precedence have on the operation of a legislative body? The reality is that it could have either a dramatic effect or no effect at all.

The answer—for each state legislature or each legislative chamber—depends upon the relevant authority given to the three items that precede "statutory provisions" in the hierarchy, which are:

a. Constitutional provisions and judicial decisions thereon
b. Adopted rules
c. Custom, usage and precedents

The Mason’s Manual Revision Commission amended clause "a" to give appropriate weight to judicial interpretations and to respect the differences among the states. Reasonable minds may disagree whether—or to what extent—a particular statute infringes on the constitutional authority of a legislative body to adopt its own procedural rules. This disagreement, however, ends with a state’s highest court. Whether it finds that a procedural statute is binding or not, the holdings of the highest court must be followed. Thus, if the case law in a state is clearly on point, there may be little reason to consider clauses "b" and "c."

In the absence of a court decision, clauses "b" and "c" may be used either to effectuate or to potentially negate a procedural statute. A rule that mirrors a procedural statute eliminates any questions about the current position of the chamber on that point. Alternatively, a chamber may adopt a general rule that states its procedures will not be bound by statutes enacted by prior legislatures. Taking a stance on the issue of procedural statutes—in either fashion—may prove helpful if litigation ensues. A definite stance allows a counsel to clearly express the intent of the chamber to the court rather than to suggest an answer by inference. Litigation also may be avoided, because cases often arise when a procedural statute exists, but the chamber rules are silent.

If a chamber does not address statutory procedural provisions in its rules, "custom, usage and precedents" will guide the body toward either following or ignoring a procedural statute. A chamber’s custom and practice should provide ample support for its presiding officer until—and unless—the issue is presented to the courts. If the custom and practice on this issue are not well developed, the new precedence will provide the foundation for a presiding officer to establish a significant and clear precedent for the chamber.

Conclusion
The right of a legislature to adopt its own rules of procedure is an authority granted by constitution. Neither house of a legislature may bind its own hands or those of future legislatures by adopting rules that cannot be changed or by passing a statute meant to preempt this rulemaking authority. The strength of these general parliamentary principles and the supporting case law convinced the Mason’s Manual Revision Commission that it was time to break tradition and vote for a change. As a result, legislatures have been given a new precedence to the sources of parliamentary procedure, and adopted chamber rules carry a higher stature. Each legislative body now may decide to what extent this change will affect its internal operations.

Endnotes
1 John Q. Tilson, Parliamentary Law and Procedure (Washington, D.C.: Ransdell Incorporated, 1935).
2 Henry M. Robert, Robert’s Rules of Order Newly Revised, 9th Edition (Scott, Foresman and Company, 1990).
3 Alice Sturgis, Sturgis Standard Code of Parliamentary Procedure, 3rd Edition (New York: McGraw-Hill, Inc., 1988).
4 Paul Mason, Mason’s Manual of Legislative Procedure, 1979 edition (Sacramento, California: California Senate, 1979).
5 Paul Mason, Mason’s Manual of Legislative Procedure, 1989 edition, ed. Mason’s Manual Revision Commission (Denver, Colorado: National Conference of State Legislatures, 1989).
6 Paul Mason, Mason’s Manual of Legislative Procedure, 2000 edition, ed. Mason’s Manual Revision Commission (Denver, Colorado: National Conference of State Legislatures, 2000).
7 Edward Wakefield Hughes, Hughes’ American Parliamentary Guide (Columbus, Ohio: F. J. Heer Printing Company, 1926).
8 Coggin v. Davey (1975), 211 S.E.2d 708, 233 Ga. 407.
9 People’s Advocate, Inc. et al. v. Superior Court of the County of Sacramento (1986), 181 Cal.App.3d 316, 226 Cal.Rptr. 640.
10 Brinkhaus v. Senate of State of Louisiana (La. App. 1 Cir. 1995), 655 So.2d 394.

Table 1. Constitutional Authority of A Legislature to Determine Its Procedure

For more information about ASLCS, write or call:

Sally Kittredge
National Conference of State Legislatures
1560 Broadway, Suite 700
Denver, CO 80202
Phone: 303/364-7700
FAX: 303/863-8003
E-mail: sally.kittredge@ncsl.org