New Hampshire: for 19th time in 20 years, legislature considers stripping or limiting the state supreme court’s rulemaking power; 3 prior attempts failed at ballot box

For the 19th time in the last 20 years the New Hampshire legislature is considering legislation to remove or curtail the rulemaking power of the state’s supreme court.

Article 73-a was added to the New Hampshire constitution in 1978.

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.

Dating back to at least 1995 members of the legislature have attempted to repeal or curtail this rulemaking power. I discussed the 16 constitutional amendments and 2 statutes proposed between 1995 and 2014 here; nothing was offered in 2015. These efforts included 3 attempts to make such rules subject to legislative alteration that advanced out of the legislature but failed to receive the necessary 2/3rds vote of the public at the ballot box. (CACR 5 of 2001/2002 got 63.1%; CACR 5 of 2003/2004 got 56.9%; CACR 26 of 2011/2012 received only 48.9%)

This year’s proposal is CACR 13: it strikes the provision that supreme court rules “shall have the force and effect of law.” It also limits the court’s power of “governing the administration” of the courts to only “governing the employees.”

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 employees 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 13 is set for a hearing today in the House Judiciary Committee.