Bar News - December 13, 2013
Court's Corner: Reconsidering Court Rule-Making in New Hampshire
By: Dan Wise
The NH Supreme Court is looking to fix a process that no one seems to appreciate – the development of court rules.
The time-consuming nature of the regular process seems unnecessarily long, judges say; the speedier alternative, issuing temporary rules, sometimes is too fast, some bar members say.
The Court will be receiving help from a small work group convened by NHBA President Jaye Rancourt, which plans to suggest some amendments to the process early in 2014.
Associate Justice Robert Lynn, chair of the NH Supreme Court’s Advisory Committee on Rules, says the Court is concerned about the length of time it takes to develop and review rules through the process governed by Supreme Court Rule 51. Lynn said that with the combined processes of the Rules Committee (reviewing and drafting) and the Supreme Court’s pre-adoption procedures, it can take up to two years to adopt a proposed rule or amendment.
The rules committee typically issues its recommendations in an annual report once a year; the sedate schedule calls for two public hearings on proposed rules each year by the advisory committee, although the committee meets quarterly. After receiving the committee’s recommendations, the Court has a range of options, including scheduling argument, if the rule changes are significant; proposing them for adoption after a period of public comment; or not acting on them.
The slowness of the process is ill-suited to today’s pace of change, says Lynn. Soliciting comments at the twice-yearly public hearings often draws little attention, he adds, perhaps because the process lacks urgency. Carolyn Koegler, secretary to the Rules Committee, said that subcommittees working on particular rules have overcome the lack of interest by proactively reaching out to groups of practitioners – such as Bar Association sections – that would have particular interest and experience with an area of law affected by a particular rule. “That’s where we regularly have seen the most participation,” said Koegler.
“The Court has not made any decisions on this yet,” said Lynn. “We welcome suggestions from the bar about how to do things differently.” One suggestion, Lynn said, was to “institutionalize” the practice of adopting rules on a temporary basis, with comments then being solicited after the rules have been in effect.
The Court has increasingly relied on issuing rules on a temporary basis, completely bypassing the Advisory Committee. This allows the court to implement innovations or respond to changing circumstances, dictated at times by statutory changes, case law, or other initiatives, Lynn said, but he acknowledges that perhaps the Court has resorted to temporary rule-making too often.
A case in point was the implementation of the Proportional Automatic Discovery (PAD) Rules in the Superior Court, which, all through the adoption of temporary rules, began as a pilot project in two counties, then four counties, then statewide. Those rules were then incorporated into the Rules of Civil Procedure, which had gone through the Advisory Committee review process, and are slated for public comment at the Committee’s public hearing on Dec. 13 -- nine months after their statewide implementation on March 1, 2013.
There will also be a need for temporary rule-making to implement the NH e-Court Project, which is scheduled to begin its rollout with a small pilot project in two courts in the second quarter of 2014. (See related article.)
Justice Gary Hicks, the Supreme Court justice overseeing the e-Court, said the project team has a rules group that is researching rules regarding electronic signatures, deadlines, etc., for the e-Court. Court administrators will be coordinating with the software developers as the project is built. It will be necessary to issue the rules as temporary with retrospective review. “It’s inevitable that we will have to use temporary rules,” Hicks said.
Both Hicks and Lynn say they are open to informally consulting with attorneys with interest or expertise in case types where e-Court is being implemented.
Rancourt, who will be working on behalf of the Bar Association to look at the advisory committee’s rules process, acknowledges that temporary rule-making is necessary for some situations. But the Court’s reliance on temporary rule-making in the past has raised concerns among some bar members. She hopes that a revision could remove undue delay from the formal rules process while still allowing for the use of temporary rules when needed.