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Citing complaints about tort reform, death penalty speed, and a conspiracy, Arkansas, Florida, and New Hampshire consider restricting or eliminating supreme court’s rule making power

March 27th, 2013

The majority of state constitutions grant the state’s court of last resort (usually called the “supreme court”) some degree of rule-making authority over practice and procedure in the state. This legislative year there have been several efforts to enact statutes that would effectively negate court rules, but in three states in particular there have been pushes to simply remove or curtail the supreme court’s power outright.

Arkansas Amendment 80, Section 3: “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.”

SJR 5 and SJR 6 effectively transfer the power over such rules to the legislature. News reports indicate the impetus are recent state supreme court rulings regarding a 2003 tort reform law.

SJR 5, as currently proposed after several author’s amendments, provides “The General Assembly shall delegate nonexclusive authority to the Supreme Court to prescribe rules of pleading, practice and procedure and the rules of evidence for all courts…”

It then adds a new paragraph to Amendment 80, Section 3 that details the extent of the legislature’s new power:

Except as expressly delegated by the General Assembly, the Supreme Court has no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts.  Notwithstanding the delegation of rulemaking authority, the General Assembly may enact laws that supersede the rules of pleading, practice, and procedure and the rules of evidence for courts.

Additionally, SJR 5 strikes another provision (Amendment 80, Section 11) that gives the supreme court the power to adopt rules to grant a right of appeal.

SJR 6 is even more restrictive and provides the General Assembly “may” delegate authority to the Supreme Court when it comes to rulemaking. It provides only that “The General Assembly shall prescribe the rules of pleading, practice ,  and procedure for all courts; provided that the General Assembly shall preserve the right of trial by jury as declared in this Constitution.”

Florida Article V, Section 2(a): “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.”

In 2000, the Florida legislature enacted the Death Penalty Reform Act of 2000 (HB 1A of the 2000 Special Session) a law to speed up executions in the state by setting time limits for court decisions and other activities. The state’s supreme court, citing Article V, Section 2(a) struck down the statute three months later in Allen v. Butterworth, 756 So.2d 52 (Fla. 2000).

SJR 1740 would amend the state’s constitution to add Section 2(b):

Notwithstanding subsection (a), postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

HJR 7081, filed after SJR 1740, reads similarly

Notwithstanding subsection (a), the procedures for postconviction or collateral review of capital cases resulting in a sentence of death shall be governed exclusively by, and to the extent provided by, general law.

New Hampshire Article 73-a: “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.”

If Arkansas and Florida are notable in their novelty (the particular constitutional amendments are newly introduced this year) New Hampshire’s CACR 4 is notable for its repetition: three times in the last decade (2002, 2004 and 2012) voters have rejected efforts to give the legislature power over rulemaking by the state’s supreme court. CACR 4 of 2013, repeating CACR 39 of 2006, and CACR 20 of 2010, rather than adding a power for the legislature to amend or override rules of court instead strikes the sentence “The rules so promulgated shall have the force and effect of law.”

The author of CACR 4 asked it be rejected (see page 307 here) and replaced with a bill (such as HB 1193 of 2006 or  HB 1194 of 2011) claiming a conspiracy took place when the original Article 73-a was adopted in 1978. Under the theory the sentence “The rules so promulgated shall have the force and effect of law” was not on the ballot text on the 1978 ballot as Question 4, therefore the voters never approved it (a statutory change in 1979 ensured that all future ballot questions would include the entirety of the amendment).

The same member of the New Hampshire House was also a prime sponsor of HB 638 of 2013, which claimed a conspiracy that the “real” 13th Amendment to the U.S. Constitution was removed and that a different one (the one banning slavery) put in instead.

 

 

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Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

March 19th, 2013

I’ve mentioned in the past the sheer volume of bills, particularly in the last 3 years, to increase or eliminate the mandatory retirement age for judges. So far while there has been a great deal of activity no state has been able to get an increase or elimination either onto the governor’s desk or before the voters.

Hawaii in particular looks to be the most likely to get an increase or elimination, but it not at all clear how the state legislature will fare and how the voters will react. Hawaii has a particular history with the subject of mandatory judicial retirement, one that does not suggest adoption is certain.

2005-2006 session: Eliminate it

In 2005, Hawaii had the first Republican governor since statehood with the power to appoint judges via merit selection, a legislature made up of a supermajority of Democrats (41 to 10 in the House, 20 to 5 in the Senate), and several members of the state’s courts up against the mandatory retirement age of 70. The state’s senate proposed a constitutional amendment (SB 995) eliminating the mandatory retirement age of 70. The vote went along party lines, the move was viewed as partisan in general, and it which went down to a nearly 2-1 defeat in the November 2006 elections.

2007-2010: Raise it

After the defeat in 2006 and taking the 2007 session off, the legislature went back to work on the subject. HB 2344 of 2008 would have raised the age from 70 to 72, while SB 3202 of the same year would have raised it from 70 to 80, but only for judges appointed after November 4, 2008 when the item would have been on the ballot. The 70-to-72 version went nowhere, the 70-to-80 version was approved in the House and Senate, but using slightly different language that could not be reconciled in conference committee in time.

A 2009/2010 version (HB 621) to raise the age from 70 to the end of the term in which a judge turned 70 was never even brought up for a committee hearing.

2011-2012: Increase it and/or work around it

The 2011/2012 session saw attempts to try and work around the mandatory retirement age of 70. SB 650 authorized the chief justice of the supreme court to appoint judges forced into retirement as “emeritus judges” to serve as per diem judges or judicial mentors in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months. An amended version, removing any reference to “judicial mentors” was approved by the House and Senate unanimously, but there was a catch. Because it was a constitutional amendment, the legislature was required under the constitution to give the governor 10 days written notice before passage. They failed to do so and had to swiftly repass the bill to get it onto the 2012 ballot. Despite no apparent opposition, the provision failed when over 10% of voters simply declined to vote on the item. Final tally: 49.6% Yes, 39.9% No, 10.4% not voting.

In the meantime the effort to raise the age was reintroduced and redebated (SB 2206 of 2012) again with an eye towards raising it from 70 to 80. It was approved unanimously in the Senate and the House Judiciary Committee in March 2012, but the focus for the remaining months of the legislature was on SB 650, the work around, rather than the increase.

2013-2014: Increase it and/or work around it (again)

Despite the loss in 2012, the legislature appears inclined to try and repropose the judge emeritus concept again to voters. HB 275 and SB 346 effectively cut and paste the language that was on the November 2012 ballot. The difference here would be that House version applies to any retired judge or justice, trial or appellate, regardless of whether they are forced into retirement at age 70 or not; the Senate version mentions only “judges” and otherwise reproduces the language of the 2012 bill (i.e. only those forced to retire at age 70):

SB 650 of 2012: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

HB 275 of 2013 (as approved by House): The chief justice may appoint judges and justices who have retired as emeritus judges, permitting the appointed judges and justices to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per appointment.

SB 346 of 2013: The chief justice may appoint judges who have retired upon attaining the age of seventy years as emeritus judges, permitting the appointed judges to serve as temporary judges in courts no higher than the court level they reached prior to retirement and for terms not to exceed three months per each appointment.

 HB 275 as amended was approved unanimously by the full House February 28.

HB 792, SB 886 and SB 1022 all increase the mandatory judicial retirement age from 70 to 80. Of the three, it is SB 886 which has had the greatest success; it was approved unanimously by the Senate February 15 and unanimously by the House Judiciary Committee March 7. The next hurdle is the House Finance Committee. Despite the swift passage so far, it could be delayed up to a year and carried over until the 2014 session (as occurred with SB 650, mentioned above).

The latest status report on the bills in Hawaii and the other 16 states considering the issue this session are below the fold.

» Read more: Update on mandatory judicial retirement legislation: bills in 16 states, but so far no enactments; Hawaii appears to be closest but has choppy history on the subject

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New Hampshire tries re-establishing legislative committee that sought to impeach judges, overturn judicial decisions

February 7th, 2013

The last several years saw the New Hampshire House’s “Committee on Redress of Grievances” attempt to function as an appellate court and declare certain judicial determinations regarding specific child custody and visitation decisions invalid. Judges were recommended for impeachment based solely or almost-solely on testimony of losing litigants. Efforts to subpoena sealed court records involving juveniles were thwarted by the House’s own Rules Committee in Fall 2012 and one of the first orders of business in the 2013 session was disbanding the committee. (prior coverage here)

Despite the change in the chamber’s Rules, House members are attempting to reestablish the committee in statute rather than in the House rules.

HB 613 puts the committee in statute and with even broader powers than before. The committee would be able to overturn judicial decisions, “remedy” any judicial decision, and “undertake proceedings to remove from office judges or attorneys that do not uphold their oaths of office.” The committee would be allow to subpoena any court documents and recommend dissolution of a court.

The lead sponsor of HB 613 is also the lead sponsor of HB 638, which as I noted last week alleges a conspiracy involving the “original” 13th Amendment and claims Abraham Lincoln, the Queen of England, and the ABA have allowed lawyers to take on a foreign title of nobility (“esquire”) and taken over the judiciary.

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Citing a conspiracy involving Abraham Lincoln, the Queen of England, and the ABA, NH tries to recognize the “original” 13th Amendment, and defend state from “unlawful usurpation” by judiciary

February 4th, 2013

There are conspiracy theories, and then there conspiracy theories. New Hampshire’s House appears to be prepared to venture down the path of one such theory in order to attack the state’s judiciary: the “original” 13th Amendment.

In 1810 Congress did in fact submit to the states the Titles of Nobility Amendment (TONA), as confirmed by the U.S. House, which read:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

The U.S. House also confirms TONA was never ratified.

Based upon faulty information (that BOTH chambers of the South Carolina legislature approved TONA when in fact only one chamber did) publications at the time identified TONA as the 13th Amendment, but courts have consistently held that in fact the amendment was never ratified.

Nevertheless, the amendment has been cited and used to explain why attorneys are prevented from holding office, under the theory that the word “Esquire” attached to attorneys names (e.g. John H. Doe, Esq.) is a “title of nobility” granted by the Crown of England via the International Bar Association through the American Bar Association.

Into this steps New Hampshire HB 638 of 2013, which adds an addition element: namely that South Carolina did in ratify around 1810 but amid the civil war Abraham Lincoln declared martial law, incorporated the United States into the District of Columbia with a new Constitution that did not include the “original” 13th, and adopted the one currently known to Americans as the one that banned slavery.

Below is the operative portions of the bill, including the claim that passage and recognition of the “original” 13th will upend the state’s judiciary:

V. The purpose of this act is to recognize that the original Thirteenth Amendment, which prohibits titles of nobility, is properly included in the United States Constitution and is the law of the land. The act is also intended to end the infiltration of the Bar Association and the judicial branch into the executive and legislative branches of government and the unlawful usurpation of the people’s right, guaranteed by the New Hampshire constitution, to elect county attorneys who are not members of the bar. This unlawful usurpation gives the judicial branch control over all government and the people in the grand juries. As long as the original Thirteenth Amendment is concealed from the people, there shall never be justice or a legitimate constitutional form of government.

2 New Chapter; Thirteenth Amendment. Amend RSA by inserting after chapter 1-A the following new chapter:

CHAPTER 1-B

ORIGINAL THIRTEENTH AMENDMENT

1-B:1 Original Thirteenth Amendment. The following shall be recognized as the original Thirteenth Amendment to the United States Constitution:

Article XIII

If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any Emperor, King, Prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them or either of them.

3 Effective Date. This act shall take effect 60 days after its passage.

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Legislatures looking to take away or get involved in supreme courts’ power over bar admission & practice

January 3rd, 2013

There’s been a particular uptick in the number of bills and resolutions through which legislatures are attempting to influence of takeover outright who is admitted to practice law in the state. Some, such as the one adopted in California in 2012, merely urge or suggest. Others, such as the two prefiled in New York and South Carolina, change the rules or take the power of the Supreme Court to set them. While few such bills are proceeding out of committee, the increased activity is notable.

2013

New York SB 808 Requires judiciary accept into bar anyone who has graduated from an accredited law school, been admitted to the bar of another state, and has completed 1 year of externship under the direction of a NYS attorney. Prefiled in Senate Judiciary Committee.

South Carolina SB 152 Provides Supreme Court may make rules regarding South Carolina Bar subject to statute. Provides constitutional provision giving Supreme Court power to regulate practice of law is subject to statute. Provides any rule requiring attorney be a member of the South Carolina Bar is superseded and of no force and effect. Prefiled in Senate Judiciary Committee.

2012

California ACR 167 Declares an applicant’s immigration status should not be the determining factor in deciding whether to approve a license to practice law, would commend Sergio C. Garcia for his hard work and success, and would also commend the State Bar of California for its efforts to admit Sergio C. Garcia to the State Bar of California. Approved by Assembly & Senate (Governor’s signature not required).

Florida HB 4055 Repeals provisions prohibiting practice of law by retired justices of state Supreme Court. Approved by full House. Died in Senate.

New Hampshire HB 1474 Prohibits requiring membership in any bar association or other professional organization as a condition for practicing law or for appointment to certain positions. Referred to interim study by full Senate 5/16/12.

New York AB 10669 Requires judiciary accept into bar anyone who has graduated from an accredited law school, been admitted to the bar of another state, and has completed 1 year of externship under the direction of a NYS attorney. Died in committee.

2011

Florida HB 7113 Repeals provisions prohibiting practice of law by retired justices of state Supreme Court. Approved by full House. Died in Senate.

Florida SB 2212 Specifically authorizes Brian Pitts to practice law in the state. Died in committee.

New York AB 2013 Allows graduates of law schools who have achieved a juris doctorate from a law school accredited by a national accrediting agency and who have passed the bar exam and been admitted to practice in another state, to sit for the bar exam in New York State. Died in committee.

Washington HB 1664 / HJR 4216 Transfers all mandatory, regulatory, licensing, and disciplinary functions of the state bar association to the state supreme court. Died in committee.

2010

Florida SB 2696 Grants legislature power over admission and practice of law. Died in committee.

Florida SB 58 Specifically authorizes Brian Pitts to practice law in the state.

New Hampshire HB 1564 Establishes the authority and procedure for the regulation of attorneys by the Supreme Court. Removes the requirement in the election or appointment of the county attorneys that the person be a member of the state bar. Rejected by full House 3/11/10.

New York AB 11339 / SB 7792 Allows graduates of non-ABA accredited law schools admitted to the bar of another state to sit for NY bar exam. Died in committee(s).

2009

Georgia HR 72 Urges the Supreme Court of Georgia to disbar or disallow admission to the bar any attorney who is convicted of altering or backdating a legal document. Died in committee.

South Carolina SB 448 (Constitutional Amendment) Removes Supreme Courts power over the admission to the practice of law and discipline of attorneys. Transfers power to such body as may be created by the General Assembly. Died in committee.

Washington HB 2216 / SB 6025 Transfers all mandatory, regulatory, licensing, and disciplinary functions of the Washington state bar association to the state supreme court. Died in committee(s).

 

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New Hampshire Year in Review: Jury nullification, marital masters, judicial performance evaluations, drug courts

December 27th, 2012

New laws affecting the courts enacted by the New Hampshire legislature in 2012 include the following:

HB 146 Jury nullification. Provides “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.”

HB 151 Repeals the laws relative to marital masters on April 5, 2016, which is the date on which the last current marital master contracts expire. Clarifies that no marital master contracts shall be entered into or renewed by the state on or after the effective date of this act.

HB 344 Changes procedures for judicial performance evaluations. Expands evaluation to include “other nonjudicial branch officers as established by court rule”. Requires judges that fail to achieve satisfactory evaluation have follow-up evaluation 18 months later. Requires all reports prepared on judicial performance identify judges individually.

HB 1665 Enables superior court or circuit court to implement one or more drug courts.

HB 1722 Provides no attorney associated with a judge in the practice of law shall be permitted to practice in the division at the circuit court site in which the judge is assigned.

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Election 2012: The losers lost big and what the losses portend for 2013/2014

November 15th, 2012

The 2012 election saw several attempts to “rein in” or otherwise assert control of the judiciary by the other branches of government. The four key amendments on the ballot not only all failed,  but failed in stunning fashion when compared to both other items on the ballot and historically.

Arizona Proposition 115 failed 27%-73%

The amendment had a variety of pieces: increased terms and mandatory retirement age, giving governor more power over the state’s merit selection commissions and requiring the commissions give governors more names to pick from, etc. What makes the Prop 115 loss even more interesting is that it was the single biggest loss among the 9 propositions on the ballot that night: the other losing propositions had closer tallies. It also failed to take a single county (closest was Apache where it got 32% of the vote: 6,976 to 14,835).

Proposition % yes
115 27
120 32
121 33
204 36
116 44
208 51
117 57
119 62
114 80

Florida Amendment 5 failed 37%-63%

Like Arizona it was an effort to tinker with the state’s merit selection system (plus rule making authority of the state supreme court) and touted as a way to “rein in judges”. Like Arizona it not only lost outright, but was the worst performer of the night in the state. It was able to carry in a single county: Sumter voted for it 52-48 (27,763 vs. 25,969).

Amendment % yes
5 37
3 42
12 42
4 43
6 45
8 45
10 45
1 49
11 61
9 62
2 63
There was no Amendment 7 n/a

Missouri Constitutional Amendment 3 failed 24%-76%

Amendment 3, like the Arizona and Florida efforts, would have given governors more power over the merit selection process, in Missouri’s case by giving effective control of the merit selection commission for the state’s appellate courts to the governor.  Proponents announced months ago they were abandoning the effort when they failed to get the ballot language they wanted, but have vowed to come back and try again, this time perhaps via a citizen’s initiative rather than a legislatively referred ballot item. Like the Arizona and Florida losses, Missouri’s Amendment 3 was the worst performer of election night ballot items in the state.

Amendment/Proposition % yes
Amend 3 24
Prop B 49
Prop E 62
Prop A 64

New Hampshire’s Question 2 failed 49-51%

Question 2 would have given the legislature a veto over rules established by the state’s supreme court.  The loss is remarkable for two reasons. First, despite the closeness of a 49-51% vote total, Question 2 was nowhere close the 67% needed for passage, making this effectively a blowout.  Second, an perhaps even more surprising, was the history of failures on this item. An amendment almost identical to 2012′s Question 2 was offered in 2002 and63% of the vote in favor, only losing because of the need to meet the 67% threshold. When it was put back on the ballot in 2004 it again got a majority (57%) but not the super-majority need. That this time the proposal failed to garner even a simple majority was surprising and, coupled with GOP loss of the New Hampshire House, indicates little chance of a return in 2013/2014.

Ohio’s Issue 2 lost 37%-63%

The amendment dealt would have created an independent redistricting commission and assigned Court of Appeals judges, picked by the Chief Justice, to vet proposed members of the commission. It lost every county in the state (except Athens). Although 19 states do provide for some involvement of judges in redrawing maps (other than hearing appeals or legal challenges from maps once created), the Ohio lopsided loss may caution against similar proposals. Moreover, the recent use of such a provision in Missouri’s constitution (map drawn by panel of appellate judges if legislature cannot come up with map) lead to proposals in that state to remove the map-by-judges provision of that state’s constitution.

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Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

October 4th, 2012

Few if any state legislatures are in session, but one of those few is Michigan and that state’s House is set to come back into session November 27 to decide the fate of a bill that would ban the use of international law by the state’s judiciary.

Under Michigan  HB 4769 and SB 701

A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.

After initial bad press and rallies where the bills were introduced earlier this year the bills remained in their respective committees. However the House journal indicates a notice for a motion to discharge HB 4769 from the House Committee on Judiciary was filed by the bill’s primary sponsor September 11 and the motion made September 12. The vote on the motion was postponed until November 27, 2012.

Full roster of 41 bills introduced and their statuses after the jump.
» Read more: Bans on court use of sharia/international law: showdown vote in Michigan set for after November election

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Posted in Jurisdiction, Other, Special Edition

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Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking

August 30th, 2012

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.

» Read more: Florida Amendment 5 & New Hampshire CACR 26: Giving legislatures more power over judicial rulemaking

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Posted in Election 2012, Rule Making Authority

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NH House committee advances plans to impeach judges for their decisions in domestic relations cases; 4th time in 5 years NH judges threatened with removal from office over custody or divorce case decisions

July 25th, 2012

I’ve mentioned the numerous impeachment efforts made against state court judges over the last 2 years for their decisions, including an effort in New Hampshire (HR 7 of 2011) that targeted the entire bench of the main trial court (Superior).

Now comes word that the New Hampshire House’s Redress of Grievances Committee, a committee that according to the Concord Monitor was revived in 2011 after a century in disuse, has voted to recommend impeachment against several  judges, one of whom is retired, because of their rulings in custody cases.

Petition 45, filed by GOP state Senate candidate Joshua Youssef alleges misconduct on the part of three judges, two martial masters, and a guardian ad litem as part of a custody dispute. According to the Concord Monitor, Youssef testified alone and was the sole witness; the judges and others against whom the petition had been lodged declined to appear. Moreover only those portions of the court file provided by Youssef were considered (the article notes other portions were less favorable towards Youssef).

The 8-2 vote on the Youssef complaint comes only days after the same committee voted 9-1 to investigate for impeachment a retired judge. Petition 11 was filed by another father in another custody case who disagreed with the judge’s determinations as it pertained to custody and visitation. The judge has subsequently retired. That petition was advanced on a 9-1 vote.

This marks the 4th time in the last 5 years the NH House has attempted to remove a judge or judicial-branch official from office because of their rulings in custody or divorce proceedings. Prior efforts included HR 7, noted above, as well as attempts in 2010 and 2006 (detailed here).

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Posted in Interim Activities, Other

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