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Is it legal for the Court to automatically suspend rights in judicial administrative orders?

Is it legal for the Court to automatically suspend rights in judicial administrative orders?

Administrative orders are the preferred tool for the court to manage its internal affairs. However, administrative orders often impact topics beyond the court’s internal affairs, and even impact rights of litigants. In general, administrative orders cannot:

  • Take away an existing substantive right of a party
  • Exceed legally delegated authority
  • Constitute de facto legislation (which would violate the separation of powers doctrine)
  • Conflict with established court rules of procedure
  • Be unduly burdensome
  • Impose a blanket result where statutory discretion is intended to be exercised on a case-by-case basis

I would suggest another limitation: administrative orders must be consistent, at least within the circuit in which they are issued.

At issue in one of my recent cases was the validity of an administrative order that automatically suspends parent-child visitation in dependency cases, despite the fact that executive branch orders did not explicitly prohibit parent-child visitation (or travel related to parent-child visitation), and despite apparently conflicting administrative orders in divorce cases and paternity cases that actually required parent-child visitation to continue unless explicitly prohibited by executive branch emergency orders.

I filed this response in connection with the appeal of the administrative order in question. Ultimately the appeals court declined to address the substantive aspects of the appeal, and dismissed the appeal for jurisdictional reasons. It appears there is a trend toward more administrative orders, and more comprehensive administrative orders. Administrative orders in divorce cases often impose automatic prohibitions on private exchange and disposition of assets (automatic injunction); automatic requirement to pay 100% of debt installment payments (automatic alimony); and more. The aforementioned response includes caselaw on administrative orders that I hope is relevant and helpful to anyone that wishes to challenge over-broad provisions in administrative orders.

Note: Endnotes (including caselaw therein) may not be visible when viewing on a mobile device using the “app” version of Microsoft Word.

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