Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking

Most state constitutions explicitly grant their state courts of last resort the power to establish rules of practice, procedure, and/or administration for the state’s judiciary, including judiciary-related organs such as administrative offices of the courts, judicial disciplinary commissions, etc.

In the last several years, however, several states have made attempts to curtail the power of the court of last resort to exercise such power, or make it easier for the legislature to override the court of last resort. Two items, a portion of Florida Amendment 5 and New Hampshire Constitutional Amendment Concurrent Resolution (CACR) 26 will be voted on this November. In this election coverage update, I’ll be taking a look at those two items and what other states do.

Florida Amendment 5

Article V, Section 2(a) of the Florida constitution grants the state’s Supreme Court a relatively broad rulemaking authority.

The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The Supreme Court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

Amendment 5 focuses on that last sentence involving a two-thirds vote of the legislature to override the rules issued by the Supreme Court. Amendment 5 would lower the threshold to a simple majority and preclude the Supreme Court from readopting the rule unless the readopted rule conforms to the legislature’s “public policy” views. The proposed amendment would read as follows:

Rules of court may be repealed by general law that expresses the policy behind the repeal enacted by two-thirds vote of the membership of each house of the legislature. The court may readopt the repealed rule only in conformity with the public policy expressed by the legislature. If the legislature determines that a rule has been readopted and repeals the readopted rule, the rule may not be readopted thereafter without prior approval of the legislature.

New Hampshire CACR 26

New Hampshire’s existing constitutional provision does not contemplate a legislative override of rules adopted by the state’s Supreme Court. This has not stopped several efforts (prior coverage here and here) by the legislature from attempting to unilaterally declare by resolution certain court rules void).

The current Article 73-a reads, in operative part:

He [the chief justice] shall, with the concurrence of a majority of the Supreme Court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

CACR 26 would explicitly grant the legislature a “concurrent power” with respect rules of court, with statutes adopted by the legislature given precedent. It also changes “He” to the gender-neutral “chief justice”

The chief justice shall, with the concurrence of a majority of the Supreme Court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

What do other states do?

38 state constitutions grant rule making, “superintending”, or similar power which has been interpreted as including the power to create rules, to their court of last resort or a judicial council chaired by the chief justice of the state. Of these, most specify that the authority is specific to certain areas/topics.

State by state breakdowns below the fold.

State Explicit Rule Making Legislative override? Other
Alabama rules governing the administration of all courts and rules governing practice and procedure in all courts Y (majority vote)
Alaska governing the administration of all courts & practice and procedure in civil and criminal cases Y (two-thirds vote)
Arizona rules relative to all procedural matters in any court N
Arkansas rules of pleading, practice and procedure for all courts N general superintending control
California (Judicial Council) rules for court administration, practice and procedure Y (majority vote)
Colorado rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases N (generally), Y (majority vote) “the general assembly shall have the power to provide simplified procedures in county courts for the trial of misdemeanors.”
Delaware rules for the administration of justice and the conduct of the business of any or all the courts in this State N
Florida rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Y (two-thirds vote)
Georgia with the advice and consent of the council of the affected class or classes of trial courts, by order adopt and publish uniform court rules and record-keeping rules which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions N
Hawaii rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals N
Idaho administration and supervision by the Supreme Court
Illinois General administrative and supervisory authority over all courts. Meeting of annual judicial conference. Provision for expeditious and inexpensive appeals. Limitations on direct appeals in non-capital cases to the Supreme Court. Appeals to the Appellate Court from non-final Circuit Court orders. Number of Appellate divisions in each Judicial District and their sittings. Appointment of Associate Circuit Judges and cases to be assigned to them. Rules of conduct for judges and associate judges. N General administrative and supervisory authority
Iowa supervisory and administrative control
Kansas general administrative authority
Kentucky rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice N
Louisiana procedural and administrative rules Y (majority vote)
Maryland rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State Y (majority vote)
Michigan establish, modify, amend and simplify the practice and procedure in all courts of this state N
Missouri rules relating to practice, procedure and pleading Y (majority vote) Supervisory authority
Montana rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members Y (majority vote)
Nebraska rules established by the Supreme Court and not in conflict with other provisions of this Constitution and laws governing such matters, general administrative authority over all courts in this state shall be vested in the Supreme Court and shall be exercised by the Chief Justice Y (majority vote)
New Hampshire rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts N
New Jersey rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts Y (practice and procedure, majority vote); N (administration)
New Mexico superintending control
New York *See note Y (majority vote)
North Carolina exclusive authority to make rules of procedure and practice for the Appellate Division.  The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court. Y (trial, majority vote); N (appellate)
North Dakota rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys at law N (generally); Y (bar admission/practice, majority vote)
Ohio rules governing practice and procedure in all courts of the state Y (majority vote)
Oklahoma general administrative authority
Pennsylvania general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders N
South Carolina rules governing the administration of all the courts of the State. Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts. Y (three-fifths vote for disapproval of proposed change; majority vote for change to “statutory law” in state)
South Dakota rules of practice and procedure and rules governing the administration of all courts…govern terms of courts, admission to the bar, and discipline of members of the bar Y (majority vote)
Texas rules of administration…as may be necessary for the efficient and uniform administration of justice in the various courts Y (majority vote)
Utah (Judicial Council) rules for the administration of the courts of the state N
Utah (Supreme Court) rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process Y (Rules of Procedure and Evidence adopted by Supreme Court, two-thirds vote); N (appellate process)
Vermont rules governing the administration of all courts [and] governing practice and procedure in civil and criminal cases in all courts Y (majority vote)
Virginia  rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth Y (majority vote)
West Virginia rules for all cases and proceedings, civil and criminal, for all of the courts of the state relating to writs, warrants, process, practice and procedure N
Wisconsin superintending and administrative authority
Wyoming general superintending control
* The New York constitution provides “The chief judge [of the Court of Appeals], after consultation with the administrative board, shall establish standards and administrative policies for general application throughout the state, which shall be submitted by the chief judge to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated after approval by the court of appeals.” However, the constitution also provides “The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts.” (Art. VI, Secs. 28(c) & 30)

One thought on “Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking”

Comments are closed.