Citing complaints about tort reform, death penalty speed, and a conspiracy, Arkansas, Florida, and New Hampshire consider restricting or eliminating supreme court’s rule making power

The majority of state constitutions grant the state’s court of last resort (usually called the “supreme court”) some degree of rule-making authority over practice and procedure in the state. This legislative year there have been several efforts to enact statutes that would effectively negate court rules, but in three states in particular there have been pushes to simply remove or curtail the supreme court’s power outright.

Arkansas Amendment 80, Section 3: “The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”

SJR 5 and SJR 6 effectively transfer the power over such rules to the legislature. News reports indicate the impetus are recent state supreme court rulings regarding a 2003 tort reform law.

SJR 5, as currently proposed after several author’s amendments, provides “The General Assembly shall delegate nonexclusive authority to the Supreme Court to prescribe rules of pleading, practice and procedure and the rules of evidence for all courts…”

It then adds a new paragraph to Amendment 80, Section 3 that details the extent of the legislature’s new power:

Except as expressly delegated by the General Assembly, the Supreme Court has no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts.  Notwithstanding the delegation of rulemaking authority, the General Assembly may enact laws that supersede the rules of pleading, practice, and procedure and the rules of evidence for courts.

Additionally, SJR 5 strikes another provision (Amendment 80, Section 11) that gives the supreme court the power to adopt rules to grant a right of appeal.

SJR 6 is even more restrictive and provides the General Assembly “may” delegate authority to the Supreme Court when it comes to rulemaking. It provides only that “The General Assembly shall prescribe the rules of pleading, practice ,  and procedure for all courts; provided that the General Assembly shall preserve the right of trial by jury as declared in this Constitution.”

Florida Article V, Section 2(a): “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.”

In 2000, the Florida legislature enacted the Death Penalty Reform Act of 2000 (HB 1A of the 2000 Special Session) a law to speed up executions in the state by setting time limits for court decisions and other activities. The state’s supreme court, citing Article V, Section 2(a) struck down the statute three months later in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000).

SJR 1740 would amend the state’s constitution to add Section 2(b):

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

HJR 7081, filed after SJR 1740, reads similarly

Notwithstanding subsection (a), the procedures for postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

New Hampshire Article 73-a: “The chief justice of the supreme court shall be the administrative head of all the courts. He 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.”

If Arkansas and Florida are notable in their novelty (the particular constitutional amendments are newly introduced this year) New Hampshire’s CACR 4 is notable for its repetition: three times in the last decade (2002, 2004 and 2012) voters have rejected efforts to give the legislature power over rulemaking by the state’s supreme court. CACR 4 of 2013, repeating CACR 39 of 2006, and CACR 20 of 2010, rather than adding a power for the legislature to amend or override rules of court instead strikes the sentence “The rules so promulgated shall have the force and effect of law.”

The author of CACR 4 asked it be rejected (see page 307 here) and replaced with a bill (such as HB 1193 of 2006 or  HB 1194 of 2011) claiming a conspiracy took place when the original Article 73-a was adopted in 1978. Under the theory the sentence “The rules so promulgated shall have the force and effect of law” was not on the ballot text on the 1978 ballot as Question 4, therefore the voters never approved it (a statutory change in 1979 ensured that all future ballot questions would include the entirety of the amendment).

The same member of the New Hampshire House was also a prime sponsor of HB 638 of 2013, which claimed a conspiracy that the “real” 13th Amendment to the U.S. Constitution was removed and that a different one (the one banning slavery) put in instead.