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

Of all the states in the U.S., none has had quite the legislative history when it comes to supreme court rulemaking as New Hampshire. The state’s current constitutional provision reads:

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. (Art. 73-a)

Concern over 73-a stems from the legislature’s displeasure with certain court decisions in interpreting 73-a. There is also the belief that the language put on the ballot after the state’s 1974 constitutional convention, in particular the last sentence (“The rules so promulgated shall have the force and effect of law.”) was not included on the ballot title/summary. Opponents claim that made the provision improperly approved by voters.

As a result the issue has been on the ballot 3 times in the past 20 years. Details below the fold. Highlighted portions indicate legislative approval.

1995/1996 session

CACR 5: Repeals Art. 73-a entirely. Declares governor is supreme executive magistrate. Referred for study. Interim study committee did not recommend legislation for 1997/1998 session.

CACR 30: Repeals Art. 73-a entirely. Provides judges in the state to be chosen by lottery from all attorneys. Rejected in House Constitution Committee 14-1 and by full House on voice vote.

1997/1998 session

HB 397: Directs study committee examine adoption of Art. 73-a. Approved by full House. Indefinitely postponed in Senate.

HB 1338: Directs study committee examine adoption of Art. 73-a. Enacted.

CACR 31: Provides rules under Art. 73-a valid only when not inconsistent with statute. Approved by House Judiciary Committee. Rejected by full House 195-118.

CACR 37: Repeals Art. 73-a entirely. Creates Administrative Office of the Courts independent of the judiciary and under the direct control of the legislature. Repeals power of judicial branch to appoint clerks and transfers to legislatively-controlled AOC. Rejected in House Judiciary Committee 15-3 and rejected by full House on voice vote.

CACR 38: Repeals Art. 73-a entirely. Provides judges in the state to be chosen by lottery from all attorneys. Rejected in House Judiciary Committee 19-0.

1999/2000 session

CACR 2: Provides rules under Art. 73-a valid only when not inconsistent with statute. Approved by House Judiciary Committee 14-1. Approved by full House 286-43. Rejected by Senate Judiciary Committee 6-2 and rejected by full Senate on voice vote.

2001/2002 session

CACR 4: Repeals Art. 73-a entirely. Rejected by House Judiciary Committee 13-0 and rejected by full House on voice vote.

CACR 5: Rewrites Art. 73-a

The chief justice of the supreme court shall be the administrative head of all the courts. The chief justice shall, with the concurrence of a majority of the supreme court justices, have the power by rule to regulate the security and administration of, and the practice, procedure, and rules of evidence in, all courts in the state. The rules so adopted shall have the force and effect of law. The general court may also regulate these matters by statute provided that the general court shall have no authority to abridge the necessary adjudicatory functions for which the courts were created. In the event of a conflict between a statute and a rule, the statute shall supersede the rule, if not contrary to the provisions of the constitution.

Approved by House and Senate. Failed to obtain 2/3rds approval by voters (63.1%-36.9%)

CACR 19: Provides rules under Art. 73-A to be reviewed by legislature and if legislature offers no objections within 6 months, rule to be in effect. Rejected by House Judiciary Committee 16-0 and rejected by full House on voice vote.

2003/2004 session

CACR 5: Rewrites Art. 73-a

The chief justice of the supreme court shall be the administrative head of all the courts in the state. The chief justice shall have the power, with the concurrence of a majority of the other supreme court justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence, in all courts in the state. The legislature shall have a concurrent power to regulate the same matters by statutes of general application, except that such legislative enactments may not abridge the judiciary’s necessary adjudicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the legislature, the statute, if not otherwise contrary to this constitution shall prevail over the rule.

Approved by House and Senate. Failed to obtain 2/3rds approval by voters (56.9%-43.1%).

2005/2006 session

HB 1193: Directs secretary of state to remove from Art. 73-a language “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 15-4 and rejected by full House 234-66.

CACR 36: Rewrites Art. 73-a

The chief justice of the supreme court shall be the administrative head of all the courts in the state. The chief justice shall have the power, with the concurrence of a majority of the other supreme court justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence, in all courts in the state. The legislature shall have a concurrent power to regulate the same matters by statutes of general application, except that such legislative enactments may not abridge the judiciary’s necessary adjudicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the legislature, the statute shall prevail over the rule.

Rejected by House Judiciary Committee 16-4 and rejected by full House on voice vote.

CACR 39: Repeals portion of Art. 73-a that “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 14-6 and rejected by full House on voice vote.

2007/2008 session
NONE

2009/2010 session

CACR 20: Repeals portion of Art. 73-a that “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 10-8 and rejected by full House 188-135.

2011/2012 session

HB 1194: Authorizes secretary of state to remove from Art. 73-a language “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 13-0 and rejected by full House on voice vote.

CACR 22: Provides Chief Justice’s power to create rules is subject to majority votes of the supreme court and the legislature. Repeals provision that “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 12-4 and rejected by full House on voice vote.

CACR 26: Provides “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.” Approved by House and Senate. Failed to obtain 2/3rds approval by voters (48.9%-51.1%).

2013/2014 session

CACR 4: Repeals portion of Art. 73-a that “The rules so promulgated shall have the force and effect of law.” Rejected by House Judiciary Committee 13-1 and rejected by full House on voice vote.