State Court Rule Making and the Separation of Powers
Webster, Peter, Judicature
Historically, the power to promulgate rules governing state court procedures has shifted between the judiciary and the legislature. From the time of our nation's independence until the early nineteenth century, the courts generally exercised that power. However, widespread criticism of the complexity of common law procedure led to sweeping legislative reforms in many states in the form of statutory procedural codes. These codes eventually spawned problems of their own, and in the early twentieth century the power to promulgate procedural rules began to shift back to the judiciary, thanks in no small part to the efforts of Chief Justice William Howard Taft, Dean Roscoe Pound, and AJS.
Proponents of returning the rule making power to the courts argued that judges (and lawyers) possessed greater expertise in the area and had a better understanding of what rules were needed; that the judiciary could act more quickly than the legislature; and that such rule making power would permit the judiciary to control its administration, just as the legislature controls its administration. Today, in virtually every state (as also in the federal court system), the judiciary has the power to adopt rules of procedure, either alone or in concert with the legislature.
Because the product of court rule making is prospective, legislation-like law, it can create tension in a system of separated powers. That tension is greater when, as often is the case, it is difficult to distinguish between those prospective rules that are truly procedural (and, therefore, appropriately matters of concern for the judiciary) and those that are substantive (and, therefore, the exclusive prerogative of the legislature). In fact, rules that appear to be merely procedural frequently have a substantive impact on litigation, as by altering its outcome. Rules of evidence addressing testimonial privileges are excellent examples.
In recent years, as courts have been asked to resolve more and more divisive social issues, legislatures have become increasingly aware of the power of procedure to affect substance. Jealous of their prerogatives and suspicious of court decision making, they are beginning to demand a greater role in court rule making. Treating such demands as a virtual call to arms, the courts have responded that the power to promulgate rules applicable to judicial proceedings is at the core of the judicial function. In the past four years, tension between the courts and the legislature over rule making has, in fact, erupted into open warfare in three states. In all three, this warfare appears to have been precipitated by legislative dissatisfaction with court decisions.
New Hampshire. In 1978, New Hampshire voters approved a constitutional amendment giving the chief justice of the supreme court the power (provided a majority of the other justices agree) to "make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts." The sponsors of the amendment represented that it "would not deprive the legislature of its right ... to regulate procedure by statute." Then, in 1997, the state supreme court issued a decision perceived by many as overruling 200 years of legal precedent recognizing that the courts and the legislature had coordinate roles in procedural rule making. The court held that rules of procedure and evidence are within the exclusive jurisdiction of the supreme court and that, when a rule and a statute conflict, the former prevails. This incensed many legislators, who proposed another constitutional amendment that would make clear that, "p]n the event of conflict between a statute and a rule, the statute shall supersede the rule, if not contrary to the provisions of the constitution. …