Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

This fifth installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

New Mexico to South Carolina below the fold.

New Mexico

The state has no constitutional provision regarding rule making authority.

New York

The chief judge, after consultation with the administrative board [of the courts], shall establish standards and administrative policies for general application throughout the state, which shall be submitted by the chief judge to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated after approval by the court of appeals. (Art. VI, Sec. 28)

One change offered several times (AB 3566 / SB 1792 of 1993; AB 6281 / SB 3482 of 1995) was for the chief judge to gain the approval of, not just have “consultation” with, the administrative board of the courts. The bills went nowhere.

North Carolina

The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division.  The General Assembly may make rules of procedure and practice for the Superior Court and District Court Divisions, and the General Assembly may delegate this authority to the Supreme Court.  No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.  If the General Assembly should delegate to the Supreme Court the rule-making power, the General Assembly may, nevertheless, alter, amend, or repeal any rule of procedure or practice adopted by the Supreme Court for the Superior Court or District Court Divisions. (Art. 4, Sec. 13(2))

An effort was made in 1997 (HB 741 / SB 835) to expand the Supreme Court’s “exclusive authority” to make rules of procedure and practice to not just the “Appellate Division” (Supreme Court and Court of Appeals) but also the state’s trial courts. The amendment would have required all such trial rules be submitted to the legislature for 30 days of review after which they went into effect unless rejected by the legislature. Neither bill advanced out of committee.

North Dakota

The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarment of attorneys at law (Art. VI, Sec. 3)

No effort has been made to alter this provision in the last decade.

Ohio

In addition to all other powers vested by this article in the supreme court, the supreme court shall have general superintendence over all courts in the state. Such general superintending power shall be exercised by the chief justice in accordance with rules promulgated by the Supreme Court. (Art. IV, Sec. 5(A))

The Supreme Court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. Proposed rules shall be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the General Assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the General Assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Courts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the rules promulgated by the supreme court. The supreme court may make rules to require uniform record keeping for all courts of the state, and shall make rules governing the admission to the practice of law and discipline of persons so admitted. (Art. IV, Sec. 5(B))

No effort has been made to alter either provision in the last decade.

Oklahoma

Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. (Art. VII, Sec. 6)

No effort has been made to alter this provision in the last decade.

Oregon

The state has no constitutional provision regarding rule making authority.

Pennsylvania

See this post.

Rhode Island

The state has no constitutional provision regarding rule making authority.

South Carolina

The Supreme Court shall make rules governing the administration of all the courts of the State. Subject to the statutory law, the Supreme Court shall make rules governing the practice and procedure in all such courts. The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted. (Art. V, Sec. 4)

All rules and amendments to rules governing practice and procedure in all courts of this State promulgated by the Supreme Court must be submitted by the Supreme Court to the Judiciary Committee of each House of the General Assembly during a regular session, but not later than the first day of February during each session. Such rules or amendments shall become effective ninety calendar days after submission unless disapproved by concurrent resolution of the General Assembly, with the concurrence of three-fifths of the members of each House present and voting. (Art. V, Sec. 4A)

Three proposals have been filed in the South Carolina legislature recently to alter these provisions; none advanced out of committee. SB 629 of 1997 would have required all rules under Sec. 4 be subject to legislative approval. It also would have prohibited rules of the Supreme Court from interfering in legislature’s ability to elect/appoint judges. The other two relate to the Supreme Court’s power over the practice of law. HB 4370 of 2007  and SB 448 of 2009 would have removed the Supreme Court’s rulemaking power over the practice of law or made it subject to laws enacted by the General Assembly.