Most state constitutions explicitly grant their state courts of last resort the power to establish rules of practice, procedure, and/or administration for the state’s judiciary, including judiciary-related organs such as administrative offices of the courts, judicial disciplinary commissions, etc.
In the last several years, however, several states have made attempts to curtail the power of the court of last resort to exercise such power, or make it easier for the legislature to override the court of last resort. Two items, a portion of Florida Amendment 5 and New Hampshire Constitutional Amendment Concurrent Resolution (CACR) 26 will be voted on this November. In this election coverage update, I’ll be taking a look at those two items and what other states do.
Florida Amendment 5
Article V, Section 2(a) of the Florida constitution grants the state’s Supreme Court a relatively broad rulemaking authority.
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 Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.
Amendment 5 focuses on that last sentence involving a two-thirds vote of the legislature to override the rules issued by the Supreme Court. Amendment 5 would lower the threshold to a simple majority and preclude the Supreme Court from readopting the rule unless the readopted rule conforms to the legislature’s “public policy” views. The proposed amendment would read as follows:
Rules of court may be repealed by general law that expresses the policy behind the repeal enacted by two-thirds vote of the membership of each house of the legislature. The court may readopt the repealed rule only in conformity with the public policy expressed by the legislature. If the legislature determines that a rule has been readopted and repeals the readopted rule, the rule may not be readopted thereafter without prior approval of the legislature.
New Hampshire CACR 26
New Hampshire’s existing constitutional provision does not contemplate a legislative override of rules adopted by the state’s Supreme Court. This has not stopped several efforts (prior coverage here and here) by the legislature from attempting to unilaterally declare by resolution certain court rules void).
The current Article 73-a reads, in operative part:
He [the chief justice] 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.
CACR 26 would explicitly grant the legislature a “concurrent power” with respect rules of court, with statutes adopted by the legislature given precedent. It also changes “He” to the gender-neutral “chief justice”
The chief justice 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. 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.
What do other states do?
38 state constitutions grant rule making, “superintending”, or similar power which has been interpreted as including the power to create rules, to their court of last resort or a judicial council chaired by the chief justice of the state. Of these, most specify that the authority is specific to certain areas/topics.
State by state breakdowns below the fold.