|December 30, 2008||2008-R-0430|
COURT RULES IN OTHER STATES-LEGISLATIVE APPROVAL
By: Christopher Reinhart, Senior Attorney
George Coppolo, Chief Attorney
NOTE: THIS RESEARCH IS FROM 2008 - AND THE LAW
MAY HAVE CHANGED
You asked whether in other states, the legislative branch either establishes or approves court rules of practice and procedure.
Courts in 22 states, with minor exceptions in three of the states noted below, appear to have exclusive authority to adopt court rules. The source of this authority is either in an explicit constitutional provision, the courts' interpretation of its inherent authority under the constitution, a statute, or a combination of these sources.
● In 11 of these states, the state constitution explicitly grants the courts rulemaking authority: Arizona, Colorado (with an exception for misdemeanor trials in County Courts), Delaware, Georgia (with an exception for certain pilot programs), Hawaii, Kentucky, Michigan, New Hampshire (also specified in statute), North Dakota, Pennsylvania (with an exception for legislation on child witnesses), and West Virginia.
● In two of these states, the courts have ruled that their inherent powers under the constitution include rulemaking: Minnesota and New Mexico. In an additional seven states, statutes authorize the courts to make rules and we also found court rulings on or mention of the courts' inherent authority to do so: Arkansas, Idaho, Indiana, Mississippi, Oklahoma, Washington, and Wyoming.
● In two states, statutes grant the courts rulemaking authority: Maine and Rhode Island.
In the remaining states, there is some role for the legislature in the rulemaking process. This is established either explicitly in the state constitution, in statutes, or by interpretations of the constitution.
● In eight of these states, the legislature can change rules adopted by the courts: Alabama, Alaska (requires a 2/3 vote), Iowa, Maryland, Missouri, South Dakota, Utah (requires a 2/3 vote), and Vermont. In a 9th state, Oregon, a Council on Court Procedures adopts civil procedure rules and the legislature can change them.
● In four states, the legislature can disapprove of a rule adopted by the courts: Montana, Ohio, South Carolina (requires a 3/5 vote), and Texas (for criminal evidence rules). In Florida, the legislature can repeal rules by a 2/3 vote. In Tennessee, the legislature approves rules.
● In 10 states, rules adopted by the courts are subject to or must be consistent with law: Illinois, Louisiana, Massachusetts, Nebraska, Nevada, New Jersey, Oregon (for rules other than civil procedure rules), South Carolina (also listed above because the legislature can disapprove of rules), Texas (for rules other than criminal evidence rules which are discussed above), and Virginia. In an 11th state, California, a Judicial Council adopts rules that cannot be inconsistent with statutes.
● In Kansas, the Supreme Court has ruled that it has constitutional authority to adopt rules under its powers to administer the court system but that this power can be performed in cooperation with other branches, citing examples such as the codes of civil and criminal procedure.
● In Wisconsin, a statute authorizes the court to adopt rules but states that it does not change the legislature's ability to adopt statutes regulating practice or procedure. The Supreme Court has stated that rules adopted under this statute can be amended by both the court and legislature.
In two states, the legislature has constitutional authority to adopt rules which it can delegate to the courts.
● In New York, the legislature has constitutional authority to regulate practice and procedure in the courts. A statute gives the courts rulemaking power subject to the legislature's reserved constitutional powers. The courts have stated that some areas are not subject to legislative control if they deal with the inherent nature of the judicial function.
● The North Carolina Constitution authorizes the Supreme Court to adopt rules for the Appellate Division and the legislature to adopt rules for the Superior and District Court Divisions but it can (1) delegate that power and (2) change rules adopted under that delegation.
Of all of the states, it appears that only California and Oregon have a body other than courts or the legislature that adopts rules. In California, the constitution empowers a Judicial Council to adopt rules for court administration, practice, and procedure. Its rules cannot be inconsistent with statutes. In Oregon, a Council on Court Procedures adopts rules for civil cases, which the legislature can change.
TABLE DISPLAYING AUTHORITY TO ADOPT RULES IN OTHER STATES
In almost all states, courts are authorized to adopt rules. But in many of these states, there is also a role for the legislature.
In some states, courts are explicitly granted rulemaking power in their state constitution. In others, courts have interpreted constitutional provisions, such as the separation of powers, grant of judicial powers, and the Supreme Court's superintendence over lower courts, as providing courts with the inherent power to adopt rules. In other states, statutes give courts the authority to adopt rules and sometimes the statute recognizes rulemaking as part of the courts' inherent powers.
In other states, the constitution, court rulings, or statutes provide a role for the legislature by (1) requiring that rules be subject to or consistent with the law or (2) giving the legislature authority to change court rules or approve or disapprove of them.
Table 1 shows who may adopt court rules in the other states, the role of the legislature in the process, and the source of the authority for adopting court rules.
* “Constitution” means that the source of the authority to adopt rules is explicitly in the state constitution. “Inherent” means that the authority is based on court interpretations of the state constitution.
Table 1: Court Rules in Other States
Who Adopts Rules
Role for Legislature
Source of Authority*
|Alabama||Courts||Legislature can change by statute||Constitution|
|Alaska||Courts||Legislature can change by 2/3 vote||Constitution|
|California||Judicial Council||Must be consistent with statutes||Constitution|
|Colorado||Courts||Legislature can adopt procedures for misdemeanor trials in County Courts||Constitution|
|Florida||Courts||Legislature may repeal by 2/3 vote||Constitution|
|Georgia||Courts||Legislature can establish certain pilot programs by 2/3 vote||Constitution|
|Illinois||Courts||Must be consistent with procedural statutes||Constitution/Inherent/Statutes|
|Iowa||Courts||Most rules must be submitted to the legislature which can change them||Statute|
|Kansas||Courts||The separation of powers allows the legislature to adopt procedural statutes unless they conflict with a court rule||Inherent/Statute|
|Louisiana||Courts||Must not conflict with statutes||Constitution|
|Maryland||Courts||Legislature can change||Constitution/Statutes|
|Massachusetts||Courts||Must be consistent with law||Inherent/Statutes|
|Missouri||Courts||Legislature can change||Constitution|
|Montana||Courts||Legislature can disapprove||Constitution|
|Nebraska||Courts||Must not conflict with other laws||Constitution|
|Nevada||Courts||Must be consistent with law||Inherent/Statutes|
|New Jersey||Courts||Subject to law (court ruling says that court rules are exclusive for procedures)||Constitution/Interpretation|
|New York||Courts/Legislature||Statute grants the courts rulemaking authority subject to the legislature's reserved powers under the constitution||Constitution/Statutes|
|North Carolina||Courts (appellate rules)/Legislature||Other than appellate rules, the legislature can delegate its authority or change a rule||Constitution|
|Ohio||Courts||Legislature can disapprove||Constitution|
● Council on Court Procedures (for civil procedure)
● Rules made by the courts must be consistent with the law and rules of civil procedure
● Legislature can change civil procedure rules from the Council on Court Procedures
|Pennsylvania||Courts||Legislature can adopt statute on child witnesses||Constitution|
|South Carolina||Courts||Subject to statutes and legislature's opportunity to disapprove by 3/5 vote||Constitution|
|South Dakota||Courts||Legislature can change||Constitution|
● Must be consistent with law
● Legislature delegated authority to adopt criminal evidence rules to courts but can disapprove them
|Utah||Courts||Legislature can amend by 2/3 vote||Constitution|
|Vermont||Courts||Legislature can revise||Constitution|
|Virginia||Courts||Cannot conflict with statutes||Constitution|
|Wisconsin||Courts/Legislature||Legislature and courts can amend rules||Statutes|
* “Constitution” means that the source of the authority to adopt rules is explicitly in the state constitution. “Inherent” means that the authority is based on court interpretations of the state constitution.
[/su_column]SUMMARY OF RULEMAKING AUTHORITY IN OTHER STATES
The Alabama Constitution explicitly gives the Supreme Court authority to promulgate rules governing the administration, practice, and procedure in all courts but they may be changed by a general act of statewide application. The rules cannot:
1. change the substantive rights of any party;
2. affect the jurisdiction or venue of actions in circuit and district courts; or
3. affect the right to trail by jury (Ala. Con. Amnd. 328, § 6.11).
A statute gives Supreme Court criminal procedure rules precedence over statutes by providing that the criminal procedure statutes apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the court (Ala. Code § 15-1-1). Similarly, any provision of the civil practice statutes regulating procedure applies only if the procedure is not governed by the Alabama Rules of Civil Procedure, the Alabama Rules of Appellate Procedure, or any other rule of practice and procedure adopted by the Supreme Court (Ala. Code § 6-1-2).
Another statute provides that adopting the 1975 Code of Alabama does not repeal, alter, amend, or modify any rule governing civil procedure promulgated by the Supreme Court. It also specifies that statutes in effect before adopting the code relating to practice and procedure that is not governed by the Alabama Rules of Civil Procedure, are not affected by adopting the code but can be changed by the legislature or Supreme Court rules (Ala. Code § 6-1-1).
The title of the Alabama Code on courts provides that its statutes regulating procedure apply only if the procedure is not governed by the Alabama Rules of Civil Procedure, the Alabama Rules of Appellate Procedure, or any other rule of practice and procedure adopted by the Supreme Court (Ala. Code § 12-1-1).
The Alaska Constitution gives the Supreme Court authority to adopt rules governing court administration and practice and procedure in civil and criminal cases in all courts. But the constitution also allows the legislature to change these rules by a two-thirds vote of the members elected to each house (Alaska Con. Art. IV, § 15).
The Arizona Constitution gives the Supreme Court power to make rules relative to all procedural matters in any court (Ariz. Con. Art. VI, § 5).
Statutes which deal with procedure are not per se unconstitutional as infringements on the power described in this section (Humana Hosp. Desert Valley v. Superior Court ex rel. Maricopa, 742 P.2d 1382 (Ct. App. 1987)).
The Arkansas Constitution does not explicitly address court rules. The Arkansas Supreme Court, in adopting rules of criminal procedure, stated that it did so pursuant to its “constitutional superintending control over all trial courts” and pursuant to Act 470 of 1971 (notes, Rules of Criminal Procedure, Art. 1). It adopted rules of civil procedure pursuant to Act 38 of 1973 and its “constitutional and inherent power to regulate procedures in the courts” (notes, Arkansas Court Rules, Rule 1). Thus, Arkansas courts appear to have both legislative and “inherent constitutional authority” to adopt rules.
The constitution explicitly gives the Supreme Court authority to make rules regulating the practice of law and the professional conduct of attorneys (Ark. Con. Amend. 28).
California's constitution empowers a Judicial Council to adopt rules for court administration, practice, and procedure (Cal. Con. Art. VI, § 6). The constitution specifies that the rules cannot be “inconsistent with statute.”
The Judicial Council consists of judges, members of the state bar, and one member of each house of the legislature.
The council must, in order to improve the administration of justice, survey judicial business and make recommendations; adopt rules for court administration, practice, and procedure; and perform other functions prescribed by statute.
Colorado's constitution explicitly gives the Supreme Court the authority to adopt rules for court administration and practice and procedure in civil and criminal cases, except that the General Assembly has the power to provide simplified procedures in county courts for misdemeanor trials (Colo. Con. Art. VI, § 21).
Delaware's constitution explicitly gives the Supreme Court's chief justice authority to adopt rules for the administration of justice and the conduct of the business of the courts, upon approval of a majority of the Supreme Court justices. It also gives other courts authority to adopt rules of practice and procedure applicable to those courts, subject to the Supreme Court's authority (Del. Con. Art. IV, § 13).
Florida's constitution provides legislative oversight of judicial rules. It explicitly gives the Supreme Court power to adopt rules of practice but the rules “may be repealed by general law enacted by two-thirds vote of the membership of each house” (Fla. Con. Art. V, § 2(a)).
Georgia's constitution explicitly authorizes the Supreme Court, with the advice and consent of the judges of the affected trial court, to adopt uniform court rules and record-keeping rules, which must provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions (Ga. Con. Art. VI, § 9).
But a constitutional provision authorizing pilot projects allows the General Assembly to enact a law approved by a two-thirds' majority of the members of each house for pilot programs for courts that are not uniform within their classes in jurisdiction; powers; rules of practice and procedure; and selection, qualifications, terms, and discipline of judges (Ga. Con. Art VI, § 1, Para. X).
The Hawaii Constitution explicitly gives the Supreme Court the authority to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure, and appeals. These rules have the force and effect of law (Haw. Con. Art. VI, § 7).
Idaho's constitution has been interpreted to give the courts the authority to adopt rules of practice and procedure (Idaho Con. Art. 5, § 13, State v. McCoy, 94 Idaho 236 (1971), Application of Kaufman, 69 Idaho 297 (1949), and State v. Beam, 828 P.2d 891 (1992)).
A statute confirms this by providing, “The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed” (Idaho Code § 1-212).
The Supreme Court's rule making power relates to procedural, as opposed to substantive, rules and “where conflict exists between statutory criminal provisions and the Idaho Criminal Rules in matters of procedure, the rules will prevail” (State v. Beam).
The Supreme Court has also stated that since it has the inherent power to promulgate procedural rules, it also has the inherent power to establish rules of evidence (State v. Knee, 616 P.2d 263 (1980)).
The Illinois Constitution gives the Supreme Court “general administrative and supervisory authority over all courts”and the authority is exercised by the chief justice “in accordance with its rules.” The Supreme Court must provide by rule for “expeditious and inexpensive appeals” and can provide by rule for direct appeal in certain cases (Ill. Con. Art. VI, §§ 4(c), 16). Matters assigned to Circuit Court associate judges must be guided by Supreme Court rules (Ill. Con. Art. VI, § 8).
A statute gives the Supreme Court power to make rules of pleading, practice, and procedure for the Circuit, Appellate, and Supreme Courts that supplement and are not inconsistent with civil procedure statutes. The court can also amend the rules to make the civil procedure statutes effective for the convenient administration of justice and to simplify judicial procedure. The court can make rules governing pleading, practice, and procedure in small claims actions, including service of process. Subject to the Supreme Court's rules, the Circuit and Appellate Courts can make rules regulating their dockets, calendars, and business (§ 735 ILCS 5/1-104).
The courts have stated that in addition to an inherent power to prescribe rules of procedure, the Supreme Court under this statute is invested with power to make rules of pleading, practice, and procedure for the courts (Biggs v. Spader, 411 Ill. 42 (1951), Robbins v. Campbell, 213 N.E.2d 641 (5 Dist. 1965)).
State statute gives the Supreme Court authority to adopt, amend, and rescind rules of court governing and controlling practice and procedure in all courts. It also specifies that all laws that conflict with the rules have no further force and effect. The statute's stated purpose is to enable the Supreme Court to simplify pleadings and proceedings; expedite decisions; remedy abuses; and abolish unnecessary forms, technicalities, process, and proceedings. Other courts can establish rules for their own governance if they supplement and do not conflict with Supreme Court rules or statutes (Indiana code § 34-8-1-1 et seq.).
In another statute, the General Assembly affirms the inherent power of the Supreme Court to adopt, amend, and rescind rules of court affecting matters of procedure and reaffirms the power to adopt rules under the provision stated above. But the statute states that this does not preclude legislation on change of venue.
The General Assembly adopted in statute the rules of trial procedure enacted by the legislature in the past and as accepted by the Supreme Court as being in effect on December 31, 1983 (Indiana code § 34-8-2-1 et seq.).
The Iowa Constitution does not explicitly address adoption of court rules but it does give the General Assembly the duty to carry into effect the provisions of the article creating the Judicial Branch and to provide for a general system of practice in the courts (Iowa Con. Art. V, § 14).
By statute, the Supreme Court prescribes all rules of pleading, practice, evidence, and procedure and the forms of process, writs, and notices for all proceedings in all courts to simplify proceedings and promote the speedy determination of litigation on the merits.
The following rules must be submitted to the legislature:
1. civil procedure,
2. criminal procedure,
4. appellate procedure (certain rules),
5. probate procedure,
6. juvenile procedure,
7. involuntary hospitalization of the mentally ill, and
8. involuntary commitment or treatment of substance abusers (Iowa Code § 602.4201).
For the rules listed above and any others specifically subjected to this procedure, the Supreme Court must submit the rule or form to the legislative council and report it to the chairpersons and ranking members of the Senate and House Judiciary Committees.
The rule or form takes effect 60 days after submission or at a later date specified by the Supreme Court, unless the legislative council votes by a majority during this time period to delay the effective date. If the General Assembly enacts a bill changing a rule or form, it supersedes a conflicting provision in the rule or form as submitted by the Supreme Court (Iowa Code § 602.4202).
The Kansas Constitution gives the Supreme Court general administrative authority over all courts (KS Con. Art. 3, § 1).
A statute cites this constitutional provision to give the Supreme Court general administrative authority over the courts. It also provides that the chief justice exercises the court's general administrative authority and is responsible for executing and implementing the administrative rules and policies of the Supreme Court, including supervision of the personnel and financial affairs of the court system (KSA § 20-101). Another statute requires the chief justice to adopt rules and regulations necessary for the district courts (KSA § 20-321).
The Supreme Court has ruled that it has “constitutional authority under the general grant of power of administration over the court systems to promulgate and enforce reasonable rules regulating judicial administration and court procedure as necessary for the administration of justice.” But the court added that this power “can be performed in cooperation with the other branches of government through the use of agreed-upon legislation without violating the separation of powers doctrine. Examples are the Code of Civil Procedure and the Code of Criminal Procedure.” It stated that “the judiciary can acquiesce in legislative action in this area of the judicial function. The constitutional power over court administration and procedure remains vested in the Judicial Branch even though legislation is used to help perform its function. Problems arise only when court rules and a statute conflict. Under such circumstances, the court's constitutional mandate must prevail” (State v. Mitchell, 234 Kan. 185 (1983)).
The Kentucky Constitution gives the Supreme Court the power to prescribe rules governing its appellate jurisdiction, for appointment of commissioners and other court personnel, and for practice and procedure for the court of justice. It also requires the Supreme Court to govern admission to the bar and discipline of members by rule (Ken. Con. § 116).
Under the Louisiana Constitution, the Supreme Court has general supervisory jurisdiction over all courts and it can establish procedural and administrative rules that do not conflict with statutes. It has sole authority to provide by rule for appointments of attorneys as temporary or ad hoc judges of city, municipal, traffic, parish, juvenile, or family courts (La. Con. Art V, § 5(A)).
The legislature has adopted statutes relating to civil procedures (Title 9) and criminal procedures (Title 15).
A statute gives the Supreme Judicial Court general administrative and supervisory authority over the Judicial Department and authorizes it to promulgate rules, regulations, and orders governing the administration of the Judicial Department (4 MSA § 1).
Other statutes give the Supreme Judicial Court power to adopt:
1. general rules for the Probate, District, and Superior Courts; the forms of process, writs, pleadings, and motions; and the practice and procedure in civil actions at law (the rules cannot change a litigant's substantive rights) (4 MSA § 8);
2. general rules for cases in equity and at law so as to secure one form of civil action and procedure for both, while preserving the constitutional and common law right of trial by jury (4 MSA § 8);
3. rules on record retention and disposition of unclaimed property
(4 MSA § 8-A);
4. rules of pleading, practice, and procedure in criminal cases before justices of the peace, District Courts, Superior Courts, and the Supreme Judicial Court (4 MSA § 9); and
5. rules of evidence for civil and criminal cases before justices of the peace, District Courts, Probate Courts, Superior Courts, and the Supreme Judicial Court (4 MSA § 9-A).
Except for the provision on records and unclaimed property, all of these statutes granting the Supreme Judicial Court rulemaking power specify that laws conflicting with the court's rules are no longer effective.
The Maryland Constitution gives the Court of Appeals the power to adopt rules for practice, procedure, and administration of the courts. These rules have the force of law unless changed by the Court of Appeals or “otherwise by law.” Other courts can make similar rules subject to the Court of Appeals' rules or other law (Md. Con. Art. IV, § 18).
A statute states that the power of the Court of Appeals to make rules and regulations to govern the practice and procedure and judicial administration in that court and in the other courts must be liberally construed. It provides a list of topics that are included as “practice and procedure.”
Courts other than the District Court may make rules of practice and procedure that are not inconsistent with Court of Appeals rules. Except for a rule regulating terms of court, rules must be adopted pursuant to the limitations and procedures prescribed by the Maryland Rules, unless authority to adopt rules is expressly granted by public general law (Md. Code Cts. and Jud. Proc. § 1-201).
The Court of Appeals has ruled that the legislature may rescind, change, or modify a rule under the constitutional provision (Funger v. Mayor of Somerset, 223 A.2d 168 (1966)). The court has stated that rules adopted by the Court of Appeals generally apply despite a prior statute to the contrary and until a subsequent statute repeals or modifies the rule (Johnson v. Swann, 550 A.2d 703 (1988), Simpson v. Consol. Constr. Servs., 143 Md. App. 606 (2002)).
In Massachusetts, the Supreme Judicial Court has ruled that the courts have inherent powers, including rulemaking, judicial administration, rulemaking for the internal organization of the courts, and controlling the practice of law (Mass. Con. Art. 30 and Declaration of Rights, Art. 11, Gray v. Commissioner of Revenue, 422 Mass. 666 (1996), O'Coin's Inc. v Treasurer of the County of Worcester, 362 Mass. 507 (1972), First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of the Bristol Div. of the Juvenile Court Dep't, 438 Mass. 387 (2003)).
The court has recognized that some overlap of the branches of government is inevitable and “absolute division of the three general types of functions is neither possible nor always desirable” (Commonwealth v. Tate, 34 Mass. App. Ct. 446, 448, 612 N.E.2d 686 (1993)).
A statute requires the courts to adopt uniform codes of rules, consistent with law, for regulating the practice and conducting the business of the courts in cases not expressly provided for by law, for specific purposes related to pleadings, amendments, conducting trials, presenting questions to the jury, notice of evidence, forms of verdicts, entry of judgment, expediting decisions, securing speedy trials, remedying abuses of practice, diminishing costs, certain motions, and declaratory procedures. The Superior Court can also make rules for trial lists in civil cases. Superior Court rules must be approved by the Supreme Judicial Court (Mass. Gen. Laws ch. 213, § 3).
The Michigan Constitution requires the Supreme Court, by general rules, to establish, modify, and amend the practice in the Supreme Court and the Circuit Courts (Mich. Con. Art. 6, § 5).
Statutes give the (1) Court of Appeals authority to adopt general rules of practice and procedure subject to the Supreme Court's authority and (2) Circuit Courts authority to adopt rules of practice not covered by Supreme Court rule or statute (Mich. Code §§ 600.305, 600.621).
Minnesota's Supreme Court has ruled that under the separation of powers provision of the state constitution (Minn. Con. Art. VI, § 1), the Supreme Court has inherent authority to adopt rules of procedure and the legislature has no power to modify or enact statutes that govern court rules of procedure already in place (State v. Johnson, 514 N.W. 2d 551 (1994)(addressing a criminal procedure statute)).
The Mississippi Constitution does not explicitly address rule-making but it vests the judicial power of the state in the Supreme Court and such other courts as the constitution provides (Miss. Con. Art. 6, § 144). A statute states that the Supreme Court, as part of the judicial power granted under this provision, has the power to prescribe general rules for the forms of process, writs, pleadings, motions, rules of evidence, and practice and procedure for trials and appeals in the courts (Miss. Code § 9-3-61).
The Mississippi Supreme Court ruled that it has inherent power to promulgate procedural rules, stemming from the separation of powers and the vesting of judicial powers in the constitution (Matthews v. State, 288 So. 2d 714 (Miss. 1974), Cecil Newell, Jr. v. Mississippi, 308 So.2d 71 (Miss. 1975)).
Missouri's constitution gives the Supreme Court the authority to establish rules relating to practice, procedure, and pleading for all courts and administrative tribunals, which have the force and effect of law. The rules cannot change substantive rights or law relating to evidence, oral examination of witnesses, juries, or the rights to jury trials and appeals. But it also provides that any rule may be annulled or amended in whole or in part by a law limited to that purpose (Mo. Con. Art. 5, § 5).
Missouri courts have ruled that in order to amend or annul a procedural rule adopted by the Supreme Court, the legislature must specifically refer to the rule in the statute (State ex rel. Kinsky v. Pratt 994 S.W. 2d 74 (1999)). Once adopted by the Supreme Court, a procedural rule controls unless it is specifically annulled or amended by the legislature. The legislation must refer explicitly to the rule (Schleeper v. State, 982 S.W. 2d 252 (1998)).
While the legislature can change a rule of practice or procedure, the Supreme Court has stated that this does not include the power to interfere with the Supreme Court's constitutional superintending control of all courts and tribunals and rules made pursuant to that authority (Mo. Con. Art. V, §4)( State ex rel. Nixon v. Kinder, 89 S.W.3d 454 (2002)).
Montana's constitution authorizes the Supreme Court to make rules governing appellate procedure and practice and procedure for all other courts. But it specifies that the rules are subject to legislative disapproval in either of the two sessions following their promulgation (Mont. Con. Art. VII, § 2).
Montana law gives every court of record the right to make rules, not inconsistent with the laws of Montana (Mont. Code § 3-1-12).
Nebraska's constitution authorizes the Supreme Court, for the effectual administration of justice and prompt disposition of judicial proceedings, to promulgate rules of practice and procedure for all courts, which must be uniform as to each class of courts and not in conflict with laws governing such matters. The court may certify to the legislature any desired changes to the general laws governing practice and proceedings and it must do so if the legislature requests it in a joint resolution (Neb. Con. Art V, § 25).
Under the Nevada Constitution's separation of powers provision and grant of authority to the Judicial Branch, the Supreme Court has ruled that the courts have inherent rulemaking authority (Nev. Con. Art VI, § 1).
The Judicial Branch has inherent power to administer its affairs which includes “rulemaking and other incidental powers reasonable and necessary to carry out the duties required for the administration of justice” (Goldberg v. Eight Jud. Dis. Ct., 93 Nev. 614 (1977)).
The court stated that when the legislature adopts statutes sanctioning the exercise of inherent powers by the courts, the court may acquiesce to them. A statute provides that the Supreme Court can make rules not inconsistent with the state constitution and law for its own governance and governing the district courts and attorneys. The statute also authorizes the Supreme Court to adopt rules on appellate civil practice and procedure which cannot change substantive rights and cannot be inconsistent with the constitution (Nev. Stat. § 2.120). The chief district court judge can also adopt rules and regulations for the orderly conduct of court business (Nev. Stat. 3.025(2)(c)).
New Hampshire's constitution authorizes the chief justice, with the concurrence of a majority of the Supreme Court justices, to make rules governing administration, practice, and procedure in all courts (N.H. Con. Part. II, Art. 73-a). A statute also gives the Supreme Court the authority to approve court rules (N.H. Stat. § 490.4).
The New Jersey Constitution gives the Supreme Court the power to make rules governing the administration of all courts and, subject to law, the practice and procedure in the courts (N.J. Con. Art. VI § II, para. 3).
The Supreme Court has interpreted this provision to give the court exclusive and plenary power over rules which are procedural in nature (State v. Leonardis, 73 N.J. 360 (1977)).
The Supreme Court has interpreted the state constitution's separation of powers provision and the provision granting the Supreme Court superintending control over inferior courts as providing inherent powers to the Supreme Court including the power to promulgate rules of practice (N.M. Con. Art. 3, § 1 and Art. 6, § 3, Southwest Underwriters v. Montoya, 80 N. M. 107 (1969), Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307 (1976)).
Under the New York Constitution, the chief judge of the highest court has authority regarding “standards and administrative policies for general application throughout the state. “ The chief judge must consult with the administrative board and have the full court adopt any standards and policies (N.Y. Con. Art. 6, § 28).
But the constitution grants the legislature the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it exercised before the constitution and authorizes it, subject to any terms and later modifications, to delegate to a court any power possessed by the legislature to regulate practice and procedure in the courts. The provision does not prevent individual courts from adopting regulations consistent with the general practices and procedures provided by statute or general rules (N.Y. Con. Art VI, § 30).
A statute authorizes the chief judge, after consulting with the administrative board, to set standards and administrative policies for general application to the unified court system. This includes adopting rules and orders regulating practice and procedure in the courts, subject to the reserved power of the legislature as provided in the constitution. The chief judge must submit the rules to the Court of Appeals, with any recommendations from the administrative board, for approval (N.Y. Jud § 211).
The courts have stated that the authority to regulate practice and procedure under the constitution is delegated primarily to the legislature. But some matters are not subject to legislative control because they deal with the inherent nature of the judicial function. Generally, the legislature has the power to prescribe rules of practice governing court proceedings and any court rules must be consistent with legislation and may be subsequently changed by statute (In the Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1 (1986), Cohn v. Borchard Affiliates, 25 NY2d 237 (1969)).
North Carolina's constitution gives the Supreme Court exclusive authority to make rules of procedure and practice for the Appellate Division. It authorizes the General Assembly to make rules of procedure and practice for the Superior Court and District Court Divisions but allows it to (1) delegate that power to the Supreme Court and (2) change or repeal a rule adopted by the Supreme Court under such a delegation. Rules of procedure or practice cannot abridge substantive rights or the right of trial by jury (N.C. Con. Art. 4, § 13(2)).
The North Carolina Code includes chapters on “Rules of Civil Procedure,” “Evidence,” “Criminal Procedure,” and a “Criminal Procedure Act” (N.C. Code ch. 1, 1A, 8, 15, 15A).
The North Dakota Constitution gives the Supreme Court authority to adopt rules of procedure, including appellate procedure, for all courts. Unless otherwise provided by law, the court has authority to adopt rules and regulations for attorney admission, discipline, and disbarment (N.D. Con. Art. VI, § 3).
The Ohio Constitution requires the Supreme Court to adopt rules governing practice and procedure in all courts but they cannot take effect unless the General Assembly has an opportunity to adopt a concurrent resolution of disapproval. All laws in conflict with rules have no further force. Rules cannot change substantive rights (Ohio Con. Art. IV, § 5(B)).
The Supreme Court is also authorized to make rules to require uniform record keeping in all courts and must adopt rules on attorney admission and discipline. Courts can also adopt additional rules about local practices if they are not inconsistent with Supreme Court rules (Ohio Con. Art. IV, § 5(B)).
The Oklahoma Constitution gives the Supreme Court general administrative authority over all courts, which is exercised by the chief justice according to its rules (Ok. Con. Art. VII, § 6). The Oklahoma Supreme Court has ruled that this provision gives the court rule making power but it has also recognized that a statute permits the court to make rules binding on lower courts as long as they do not contradict a constitutional or statutory provision (Eberle v. Dyer Constr. Co., 1979 OK 49 (1979)).
The statute, in the civil procedure title of the statutes, requires that the Supreme Court justices meet every two years to revise their general rules and make amendments as required to carry into effect the provisions of the code. The rules apply to the Supreme Court, County Courts, Superior Courts, District Courts, and other courts of record (12 Okl. St. § 74).
In Oregon, a number of statutes grant the Supreme Court the power to adopt rules but rules of civil procedure are adopted by a Council on Court Procedures which must submit its rules to the legislature before they take effect.
Supreme Court Rules. The chief justice is the administrative head of the judicial department and exercises administrative authority and supervision over the courts consistent with applicable provisions of law and the Oregon Rules of Civil Procedure. The statute authorizes the chief justice to:
1. make rules and issue orders appropriate to exercise those powers,
2. establish time standards for disposition of cases, and
3. make rules for using electronic applications in the courts (consistent with the laws governing courts and court procedures).
The rules must permit as much variation and flexibility in administering the courts as appropriate for the most efficient administration of each court, considering the particular needs and circumstances of the court, and consistent with the sound and efficient administration of the judicial department. A court's or judge's rules on a court's business must be consistent with the chief justice's rules and orders (ORS § 1.002).
The Supreme Court can set rules for the form of written process, notices, motions, and pleadings in civil and criminal proceedings in the courts. The rules must prescribe standard forms for use throughout the state that are consistent with applicable law and the Rules of Civil Procedure. The Supreme Court can set rules for filing pleadings and other papers in civil proceedings by fax consistent with applicable law and the Oregon Rules of Civil Procedure (ORS § 1.006).
The Supreme Court can set rules governing its conduct in cases of original jurisdiction (ORS § 2.130).
The Supreme Court can set rules for practice and procedure in coordinating class actions (ORS § 1.004).
Council on Court Procedures. Another statute creates a Council on Court Procedures which consists of judges, attorneys, and one member of the public (ORS § 1.730). The council promulgates rules on pleading, practice, and procedure in civil proceedings in all courts. They cannot change substantive rights or rules of evidence or appellate procedure. After adopting rules and amendments, the council submits them to the legislature which must have an opportunity to review them. The legislature can provide an earlier effective date for the rules or change, repeal, or supplement the rules by statute (ORS § 1.735). The statutes make all provisions of law relating to pleading, practice, and procedure in civil proceedings court rules and they remain in effect until changed by the council (ORS § 1.745).
The council has a legislative advisory committee, which assists a legislative committee in considering changes to the rules of procedure when requested (ORS § 1.760).
The Pennsylvania Constitution gives the Supreme Court power to set general rules governing practice, procedure, and the conduct of the courts, justices of the peace, and officers serving process or enforcing orders, judgments, or decrees. This includes the power to provide for assignments and reassignment of classes of actions or appeals among courts as the needs of justice require, admission to practice law, administration of all courts, and supervision of all Judicial Branch officers. The rules must be consistent with the constitution, not change substantive rights, not affect the General Assembly's right to determine the jurisdiction of courts or justices of the peace, and not change a statute of limitation or repose. All laws inconsistent with the rules are suspended. But the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television (Pa. Con. Art. V, § 10(c)).
The Rhode Island Constitution is silent as to the authority to adopt rules of practice and procedure but a statute gives the courts rulemaking authority and specifies that these rules supersede conflicting statutes (R.I. Gen. Laws § 8-6-2).
This statute gives the Supreme Court, Superior Court, Family Court, and District Court, by a majority of their members, power to make rules for regulating practice, procedure, and business in their courts. The District Court chief judge has the power to make rules regulating practice, procedure, and business in the traffic tribunal. The rules of the lower courts are subject to the approval of the Supreme Court. Rules supersede any conflicting statutes.
South Carolina's constitution directs the Supreme Court to make rules governing the administration of all courts and, subject to statutory law, rules governing the practice and procedure in all courts (S.C. Con. Art. V, § 4). The Supreme Court must submit all rules and amendments governing practice and procedure in all courts to the Judiciary Committee of each house of the General Assembly during a regular session, but not later than February 1 during the session. The rules or amendments become effective 90 days after submission unless disapproved by concurrent resolution by the General Assembly by three-fifths of the members of each house present and voting (S.C. Con. Art. V, § 4A).
South Dakota's constitution gives the Supreme Court general superintending powers over all courts and authorizes it to make rules of practice and procedure and rules governing the administration of all courts. But it specifies that the legislature may change these rules (S.D. Con. Art. V, § 12).
Tennessee's constitution does not explicitly address the power to make rules of practice. While the Supreme Court has discussed its inherent authority to adopt rules, statutes grant it the power to adopt rules which must be approved by the legislature.
The Supreme Court has ruled that the power to make rules of practice is traditional, inherent, and statutory and is indispensible to the orderly administration of justice (Barger v. Brock, 535 S.W. 2d 337 (1976); also see 579 SW 2d 875 and 869 SW 2d 936).
Statutes authorize the Supreme Court to make rules for (1) practice before the Supreme Court (Tenn. Code § 16-3-401) and (2) forms and procedure for civil and criminal cases in all courts (Tenn. Code § 16-3-402). The rules for all courts cannot change substantive rights and must be consistent with the state and federal constitutions (Tenn. Code § 16-3-403). Rules do not take effect until they are reported to the General Assembly and they are approved by resolution of both houses (Tenn. Code § 16-3-404).
All laws that conflict with rules have no further effect (Tenn. Code § 16-3-406).
Other courts can adopt rules that supplement and are not inconsistent with the Supreme Court's rules (Tenn. Code 16-3-407).
Another statute urged the Supreme Court to develop rules on faxing documents, to be submitted to the General Assembly for approval (Tenn. Code 16-3-408).
The Texas Constitution gives the Supreme Court responsibility for the efficient administration of the Judicial Branch and requires it to promulgate rules of administration and civil procedure. The rules cannot be inconsistent with state laws. The legislature can delegate to the Supreme Court or Court of Criminal Appeals the power to adopt other rules as may be prescribed by law or the constitution, subject to limitations and procedures that may be provided by law (Texas Con. Art. 5, § 31(a) and (b)). Thus the constitution gives the legislature ultimate constitutional authority over judicial administration and procedure (Ex parte Mallares, 953 S.W.2d 759 (1997)).
The legislature granted the Court of Criminal Appeals power to promulgate rules of evidence in criminal trials, but it cannot change substantive rights. The court can adopt a comprehensive body of rules of evidence and specific rules or amendments. The rules and amendments remain in effect unless disapproved by the legislature. The secretary of state reports rules to the legislature at its next regular session (Tex. Gov't Code § 22.109).
The Utah Constitution requires the Supreme Court to adopt rules of procedure, evidence, and appeals but the legislature may amend them by a two-thirds vote of all members of both houses (Utah Con. Art. VIII, § 4). The Supreme Court can also adopt rules on the practice of law and retired judges performing duties.
The Vermont Constitution directs the Supreme Court to adopt rules of administration for all courts and rules governing practice and procedure in civil and criminal cases in all courts. It explicitly allows the General Assembly to revise any rule the Supreme Court adopts (Vt. Con. Ch. II, § 37).
The Virginia Constitution authorizes the Supreme Court to make rules governing appeals and practice and procedure in all courts. The rules may not conflict with law established by the General Assembly (Va. Con. Art. VI, § 5).
The Washington Constitution does not explicitly address rules of practice and procedure in the courts. The Supreme Court has ruled that it has the power under the constitution's separation of powers provision to dictate it own court rules, even if they contradict rules set by the legislature (Marine Power & Equipment Co. v. State, 687 P.2d 630 (1984)).
The Washington Supreme Court has recognized that it is sometimes possible for responsibilities to overlap in governing the administrative aspects of court functions. But a law cannot impair the Supreme Court's functions or encroach on the judiciary's power to administer its own affairs. The ultimate power to regulate court-related functions belongs exclusively to the Supreme Court (Washington State Bar Ass'n. v. State, 890 P.2d 1047 (1995)).
A number of statutes address the courts' rulemaking powers.
1. A statute authorizes the Supreme Court to adopt rules of practice and forms of process for the due administration of justice for (a) the court and each of its departments; (b) its dockets, records, and proceedings; and (c) regulating the court (Wash. Rev. Code § 2.04.180).
2. A statute gives the Supreme Court the power to adopt rules relating to pleading, practice, and procedure in proceedings in the Supreme Court, Superior Courts, and District Courts. The Supreme Court must consider simplifying the system of pleading, practice, and procedure and promote the speedy determination of litigation on the merits (Wash. Rev. Code § 2.04.190).
3. Laws that conflict with court rules have no further effect (Wash. Rev. Code § 2.04.200).
4. The Superior Court can adopt rules for its governance that supplement and do not conflict with Supreme Court rules (Wash. Rev. Coe § 2.04.210).
5. A statute required the Supreme Court to adopt rules for settlement conferences in Superior Court and Court of Appeals civil cases (Wash. Rev. Code § 2.04.215).
West Virginia's constitution gives the Supreme Court of Appeals the power to adopt rules for civil and criminal cases for all courts relating to writs, warrants, process, practice, and procedure. The rules have the force of law (W.V. Con. Art. VIII, § 3).
Wisconsin's constitution does not explicitly deal with the authority to adopt rules of practice or procedure. It does give the Supreme Court superintending and administrative authority over all courts (Wis. Con. Art. VII, § 3). The chief justice is the administrative head and exercises that authority under procedures adopted by the Supreme Court (Wis. Con. Art. VII, § 4).
A statute requires the Supreme Court to adopt rules regulating pleading, practice, and procedure in judicial proceedings in the courts for simplification and promoting the speedy determination of litigation on the merits. The rules cannot change substantive rights. Statutes on pleading, practice, and procedure can be modified or suspended by rules. The statute does not abridge the right of the legislature to enact, modify, or repeal statutes or rules relating to pleading, practice, or procedure (Wis. Stat. § 751.12)
The Supreme Court has stated that a rule adopted under this statute is numbered as a statute and printed in the statutes. It can be amended both by the court and legislature. The court has described it as “a statute promulgated under this court's rule-making authority” and it has the force of law (Roa v. WMA Sec., Inc., 751 N.W.2d 220 (2008)).
The courts have ruled that the constitution does not require an absolute division of powers; in areas of shared power, one branch may not exercise power in a manner that will unduly burden or substantially interfere with another branch's essential role and powers (Demmith v. Wisconsin Judicial Conference, 480 N.W.2d 502 (1992)).
The Wyoming Constitution gives the Supreme Court general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law (Wyo. Con. Art. 5, § 2). This authority gives the Supreme Court the right to prescribe rules of practice and procedure in the courts (White v. Fisher, 689 P.2d 102 (1984), Squillace v. Kelly, 990 P.2d 497 (1999)). This right is limited only by reasonableness and conformity to constitutional and legislative enactments that deal with substantive rights or a court's jurisdiction (Peterson v. State, 594 P.2d 978 (1979)). The Supreme Court has also ruled that “matters dealing with procedure, particularly in the minor courts, are entirely within” its province (Peterson). Thus it appears that in Wyoming, the Supreme Court has ultimate authority to adopt procedural rules and the legislature has ultimate authority to enact laws that deal with “substantive rights.”
A statute also gives the Supreme Court authority to adopt procedural rules. It authorizes the Supreme Court to adopt, modify, and repeal general rules and forms governing pleading, practice, and procedure in all courts to promote the speedy and efficient determination of litigation on the merits (Wyo. Stat. § 5-2-114).
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