Montana: Senate hearing on plan to declare new ABA model rule banning harassment & discrimination “unconstitutional…null and void…usurping the legislative power”

The Montana Senate Judiciary committee is set to hold a hearing tomorrow on Senate Joint Resolution 15 to declare “unconstitutional…null and void” a possible move by the state’s supreme court to ban discrimination by lawyers in the state.

First, some background.

The Montana Constitution provides (Art. VII, Sec. 2(2)) the Supreme Court “may make rules governing…admission to the bar and the conduct of its members.”

While rules of procedure are “subject to disapproval by the legislature”, the rules governing bar admission and conduct aren’t. That is not stopping members of the Montana Senate from trying.

At issue is ABA Proposed Rule of Professional Conduct 8.4(g) which provides:

It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The Montana Supreme Court entered an order in October 2016 asking for comment on whether to add 8.4(g) to its rules.

SJR 15 declares any adoption of 8.4(g) “null and void” and “unconstitutional”, arguing that the ABA “is not legally authorized to give legal advice” and that the proposed rule is “legislative” or “legislation” of a “cultural shift” that goes beyond the Montana Supreme Court’s power. Moreover, it declares that in adopting 8.4(g) the Montana Supreme Court would be “usurping the legislative power,”


Arkansas: constitutional amendment to subject supreme court rules to 3/5ths legislative approval clears Senate 21-10; effort wrapped up in “tort reform” laws

A constitutional amendment discussed here to subject rules of practice and procedure adopted by the Arkansas Supreme Court to legislative approval cleared the Senate this week. SJR 8 would, among other things related to damage awards in tort cases, require all rules of pleading, practice and procedure be subject to 3/5ths legislative approval or, by 3/5ths, allow the legislature to amend or repeal any rule.

SJR 8 also includes elements of a “tort reform” package that was stricken from the ballot last year by the Supreme Court. Moreover, the effort to curtail or remove the supreme court’s rulemaking power dates back at least 4 years to a 2013 ruling striking down portions of a 2003 “tort reform” law that violated the supreme court’s rulemaking authority.

SJR 8 is currently being held in the Senate prior to transmission to the House. If approved by that chamber it would then have to be approved by voters.


Arkansas: constitutional amendment would subject supreme court’s rule making power to 3/5ths legislative approval: 2013 “tort reform” decision at issue

The latest in a 4-year effort to strip or curtail the Arkansas Supreme Court’s rulemaking power is set for a committee hearing today in the Senate State Agencies & Governmental Affairs Committee.

SJR 8 would, among other things related to damage awards in tort cases, require all rules of pleading, practice and procedure be subject to 3/5ths legislative approval or, by 3/5ths, amend or repeal any rule.

First, some background.

Arkansas in November 2000 rewrote their state’s judiciary article (Amendment 80) and in so doing placed in the hands of the state’s supreme court the power to

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.

That exclusive vesting in the court of the power to set such rules, practices, and procedures was cited by the state’s supreme court in 2013 when it struck down a 2003 tort reform law (news reports here).

SJR 8 would place a requirement that any such rule must have the 3/5ths approval of the legislature.

(2) A rule of pleading, practice, or procedure prescribed by the Supreme Court shall not become effective until approved by the General Assembly at a regular session, fiscal session, or special session.
(b)(1) By a three-fifths vote of each house, the General Assembly may enact laws:
(A) Approving, amending, or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court and
(B) Adopting on its own initiative a rule of pleading, practice, or procedure.

Since the 2013 ruling there have been several efforts to remove or curtail that rulemaking power discussed here with SJR 8 of 2017 being just the latest. Among them: a plan to allow for merit/commission selection of Supreme Court if the Supreme Court’s rulemaking authority was curtailed.

NOTE: The lack of legislation in 2014 and 2016 is due to a constitutional provision than the legislature can only consider budget/appropriations items in even numbered years.

SJR 5 of 2013 ORIGINAL: Removes Supreme Court’s rulemaking power and transfers to legislature. AS AMENDED: provides “General Assembly shall delegate nonexclusive authority to the Supreme Court” regarding rulemaking. Provides laws enacted by General Assembly supersede rules adopted by Supreme Court.

SJR 6 of 2013 Removes Supreme Court’s rulemaking power and transfers to legislature.

HJR 1016 of 2015 AS AMENDED: Creates merit/commission system for Supreme Court. Authorizes legislature to enact “loser pays” laws and laws against “frivolous” lawsuits, supreme court rulemaking authority notwithstanding.


Arizona: Bill set for hearing this week would require pro se litigants have access to efiling, require audio recordings be considered official record

The Arizona House Judiciary committee will hold a hearing this week on a proposal to require pro se litigants have access to efiling as well as potentially ending the use of paper/written transcripts in the state.

HB 2220 as filed prohibits the supreme court or any court in the state from designating “a paper transcript of a hearing or other proceeding as the only official record if the hearing or other proceeding is electronically recorded and the recording is audible.”

Additionally, the bill amends an existing law allowing electronic filing of documents and electronic access to records in the state’s general jurisdiction courts (Superior) to provide that if the court does provide such access/filing to attorneys “the privileges must also be provided to clients and pro se litigants.”

Indiana: bill would curtail state supreme court’s power to adopt rules; require court submit proposed rules for legislative review and approval

A bill recently introduced into the Indiana Senate would require rules adopted by the Indiana Supreme Court be stayed until it reviews and possibly subject to approval by the legislature.

SB 406 of 2017 requires the supreme court submit a nonemergency rule and any economic impact statement to the Office of Fiscal Management and Analysis of the Legislative Services Agency to estimate the fiscal impact on state and local government.

If the fiscal impact of the rule is greater than $300,000 the rule would be further subject to a newly created Administrative Rules Review Committee made up of 12 members of the legislature.

Finally, if the impact was greater than $300,000, the Supreme Court’s rule would not take effect unless authorized by a bill enacted by the general assembly.

SB 406 has been sent to the Senate Judiciary Committee.

New Hampshire: plan to strip supreme court of rulemaking power killed by full House 244-47

A plan to strip the New Hampshire Supreme Court of its rule making authority over the judiciary has been scrapped by the House. CACR 13 was tabled by voice vote by the House yesterday.

CACR 13 as introduced would have amended the constitution to provide any such rules created by the supreme court would not “have the force and effect of law” and the court limited to making only rules governing court employees. A floor amendment would have continued to let the supreme court make rules regarding “administration of all courts in the state” but made them subject to legislative override (“provided that if such rules conflict with statute, statute shall prevail.”)

This year’s effort marks the latest in a 20+ year effort to remove the supreme court’s rulemaking authority or make is subject to legislative override.

New Hampshire: House approves 184-145 jury nullification bill; judges would have to instruct jurors using specific language set by legislature

The New Hampshire House yesterday approved on a 184-145 vote a bill to require judges give specific jury nullification instructions to jurors in criminal cases

HB 1270 as amended would replace an existing 2012 law with more specific language. The specific language was a key element for the House; legislators became infuriated after state courts failed to give nullification instructions based on the 2012 law and the state supreme court ruled the 2012 law did not require any specific nullification instructions.

The new law would contain 3 elements.

The first element essentially repeats the existing 2012 law although instead of the defense informing the jury, it would be the court doing so.

In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

The second element is a “Wentworth instruction” derived from State v. Wentworth, 118 N.H. 833 (1978)

At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.

The third element of the instructions by the court would be the nullification instruction

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 1270 now goes to the Senate.