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Who makes the rules of practice and procedure: the legislature, the judiciary, or both?

October 6, 2021

Throughout most of the last 150 years, one of the biggest efforts in the area of judicial administration and management has been to look towards giving state judiciaries control over rules of practice and procedure. The practice dates back to 1873 when the United Kingdom’s Parliament created a uniform system of pleading and procedure (Supreme Court Judicature Act of 1873, Schedule 1) and expressly granted the top judges of the Supreme Court of Judicature the power to alter these rules. The power extended not only “for regulating the pleading, practice, and procedure” of the courts, but also directing and “the duties of the officers thereof” and allowing the court(s) themselves to decide when and how they sat. Parliament, however, did not surrender its perceived supremacy in this area. To start, the Judicature Acts were just that -  acts of Parliament that could be repealed at will. Moreover, the 1873/1875 Acts granted each House of Parliament a veto. Any proposed rules alteration would be laid before both Houses for forty days or for forty days after they next came back into session. If either House objected to the change, the rule was “annulled.”

Starting around the same time, U.S. judicial reformers attempted to gain similar control over the rules of practice and procedure. For federal courts that manifested as the Rules Enabling Act of 1934 that granted the U.S. Judicial Conference rule-making powers subject to revision and review by Congress. In U.S. states, legislatures slowly began to cede power to the state’s courts of last resort (mainly) or state judicial councils. However they often retained the power to amend or alter the rules.

Today, states can be divided into three categories in the area of rule-making powers (the list of states’ systems is below)

  1. Thirteen states have explicit and exclusive constitutional power in this area. Arkansas most recently in 2000 amended its constitution to provide that its “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.” (Amendment 80, Section 3). There may be a small, minor exceptions to this (e.g. Pennsylvania allows the legislature to make rules as it pertains to child victim testimony).
  2. Twenty-two states have explicit, but not exclusive constitutional power in this area. For example, any rule may be subject to legislative amendment, alteration, or “annulment” or the judiciary’s rule-making power may be limited to only certain areas.
  3. Fifteen states have no explicit constitutional authority. It should be noted that some states contain other text in their state constitutions to the effect that they possess rule-making authority.
State

Constitutional Language Regarding Rule Making

Category

Alabama

The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts...These rules may be changed by a general act of statewide application.

2

Alaska

The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. These rules may be changed by the legislature by two-thirds vote of the members elected to each house.

2

Arizona

Power to make rules relative to all procedural matters in any court.

1

Arkansas

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.

1

California

To improve the administration of justice the [Judicial] council shall…adopt rules for court administration, practice, and procedure…The rules adopted shall not be inconsistent with statute.

2

Colorado

The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases, except that the general assembly shall have the power to provide simplified procedures in county courts for the trial of misdemeanors,

2

Connecticut

 

3

Delaware

The Chief Justice of the Supreme Court...Upon the approval of a majority of the Justices of the Supreme Court to adopt rules for the administration of justice and the conduct of the business of any or all the courts in this State: Provided, however, that any other of the courts in this State may from time to time, subject to the exercise of the power in this paragraph (l) conferred upon the Justices of the Supreme Court, adopt rules of pleading practice and procedure applicable to such Court.

1

Florida

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.

2

Georgia

Supreme Court shall, with the advice and consent of the council of the affected class or classes of trial courts, by order adopt and publish uniform court rules and record-keeping rules which shall provide for the speedy, efficient, and inexpensive resolution of disputes and prosecutions. Each council shall be comprised of all of the judges of the courts of that class...All rules of evidence shall be as prescribed by law.

2

Hawaii

The supreme court shall have power to promulgate , which shall have the force and effect of law.

1

Idaho

 

3

Illinois

General administrative and supervisory authority over all courts is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.

1

Indiana

 

3

Iowa

 

3

Kansas

 

3

Kentucky

The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice.

1

Louisiana

It may establish procedural and administrative rules not in conflict with law…

2

Maine

 

3

Maryland

The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.

2

Massachusetts

 

3

Michigan

The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.

1

Minnesota

 

3

Mississippi

 

3

Missouri

The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal. The court shall publish the rules and fix the day on which they take effect, but no rule shall take effect before six months after its publication. Any rule may be annulled or amended in whole or in part by a law limited to the purpose.

2

Montana

It may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation.

2

Nebraska

In accordance with rules established by the Supreme Court and not in conflict with other provisions of this Constitution and laws governing such matters, general administrative authority over all courts in this state shall be vested in the Supreme Court and shall be exercised by the Chief Justice. (Art. V, Sec. 1)

For the effectual administration of justice and the prompt disposition of judicial proceedings, the supreme court may promulgate rules of practice and procedure for all courts, uniform as to each class of courts, and not in conflict with laws governing such matters. To the same end, the court may, and when requested by the Legislature by resolution shall, certify to the Legislature its conclusions as to desirable amendments or changes in the general laws governing such practice and proceedings. (Art. V, Sec. 25)

2

Nevada

 

3

New Hampshire

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.

1

New Jersey

The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts

2

New Mexico

 

3

New York

The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts.

2

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.

2

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.

1

Ohio

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.

2

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.

1

Oregon

 

3

Pennsylvania

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignments and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.

1

Rhode Island

 

3

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....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.

2

South Dakota

The Supreme Court shall have general superintending powers over all courts and may make rules of practice and procedure and rules governing the administration of all courts. The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. These rules may be changed by the Legislature.

2

Tennessee

 

3

Texas

(a) The Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.
(b) The Supreme Court shall promulgate rules of civil procedure for all courts not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts.
(c) The legislature may delegate to the Supreme Court or Court of Criminal Appeals the power to promulgate such other rules as may be prescribed by law or this Constitution, subject to such limitations and procedures as may be provided by law.
(d) Notwithstanding Section 1, Article II, of this constitution and any other provision of this constitution, if the supreme court does not act on a motion for rehearing before the 180th day after the date on which the motion is filed, the motion is denied.

2

Utah

The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature. Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah. The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.

2

Vermont

The Supreme Court shall make and promulgate rules governing the administration of all courts, and shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts. Any rule adopted by the Supreme Court may be revised by the General Assembly.

2

Virginia

The Supreme Court shall have the authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth, but such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly.

2

Washington

 

3

West Virginia

The [Supreme Court of Appeal] shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the state relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law.

1

Wisconsin

The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court.

1

Wyoming

The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and shall have a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law.

2

Who sets the rules of practice and procedure in your state?  Share your experiences with us at Knowledge@ncsc.org or call 800-616-6164. Follow the National Center for State Courts on FacebookTwitter, Instagram , or Pinterest.