Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 1

Most state constitutions grant their court of last resort, typically called the “supreme court”, or their judicial council some degree of rulemaking authority. My colleagues here at the National Center have a listing of all such provisions here. In the last several years, however, legislatures have made efforts to amend or alter those provisions. This series will examine all such efforts and how they have fared.

Alabama to Georgia below the fold.

Alabama

The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts. (Amendment 328)

No effort has been made to alter this provision in the last decade.

Alaska

The supreme court shall make and promulgate rules governing the administration of all courts. (Art. IV, Sec. 15)

No effort has been made to alter this provision in the last decade.

Arizona

The supreme court shall have…Power to make rules relative to all procedural matters in any court. (Art. 6, Sec. 5)

There was a single effort to change this power in recent decades. SCR 1005 of 2002 would have provided the power to make rules was limited to those “that are not inconsistent with statute.” It died in committee.

Arkansas

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. (Amendment 80, Section 3)

Since its approval in 2000 there have been two efforts at change. SJR 5 and SJR 6 of 2013, both discussed here, here, and here were efforts to either remove the Supreme Court’s power over pleading, practice and procedure or provide the power was subject to, and could be overridden by, the legislature. Both efforts were actively debated in 2013 but ultimately failed to advance.

California

To improve the administration of justice the [Judicial] council shall…adopt rules for court administration, practice, and procedure…The rules adopted shall not be inconsistent with statute. (Art 6, Sec. 6(d))

No effort has been made to alter this provision in the last decade.

Colorado

The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases, except that the general assembly shall have the power to provide simplified procedures in county courts for claims not exceeding five hundred dollars and for the trial of misdemeanors. (Art VI, Sec 21)

SCR 6 of 2002 dropped the phrase “for claims not exceeding five hundred dollars”. It was approved as part of a package of changes to numerous portions of the state constitution as Referendum D at the 2002 election.

Connecticut

The state has no constitutional provision regarding rule making authority.

Delaware

The Chief Justice of the Supreme Court…Upon the approval of a majority of the Justices of the Supreme Court to adopt rules for the administration of justice and the conduct of the business of any or all the courts in this State: Provided, however, that any other of the courts in this State may from time to time, subject to the exercise of the power in this paragraph (l) conferred upon the Justices of the Supreme Court, adopt rules of pleading practice and procedure applicable to such Court. (Art IV, Sec. 13)

No effort has been made to alter this provision in the last decade.

Florida

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. Art V, Sec 2(a)

One consistent effort over the last decade has been to transfer the power to set rules from the supreme court directly to the legislature. Some efforts were limited only to a particular area, such as rule making in death penalty cases (HB 7081 of 2013; SB 1740 of 2013)

Another focus was on dropping the threshold for the legislature to override from 2/3rds to 60% (SB 2084 of 2011) or a simple majority (SB 7076 of 2011).

Another has been to transfer the power indirectly to the legislature through the creation of a “judicial conference” that would recommend changes for the legislature to approve. The plans varied mostly on a) whether or not the supreme court would have any role in recommending the judicial conference’s suggestions to the legislature and b) whether the legislature’s failure to act on a proposed rule change meant it was automatically accepted or rejected. (HB 1741 of 2004; SB 2378 of 2004; HB 1007 of 2005; SB 1302 of 2005; SB 1842 of 2005; HB 1479 of 2007; SB 2742 of 2007; SB 2696 of 2010)

Of all of these, the only to make it to the ballot was HB 7111 of 2011 which combined several elements of the above such as dropping the threshold for a legislative override to a simple majority. The change to the rule making power was part of a larger package of changes, including changes to judicial selection which were rejected by voters in November 2012.

Georgia

[T]he Supreme Court shall, 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. Each council shall be comprised of all of the judges of the courts of that class. (Art VI, Sec 9, Para 1)

No effort has been made to alter this provision in the last decade.