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Bar News - January 21, 2015


Court News: Revisions to Rulemaking Process Recommended

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An effort to streamline rulemaking in the court system aims to shorten the review process and reduce the need for temporary rules, but some attorneys wish it had gone farther.

The proposed new system eliminates some public hearings before the Supreme Court Advisory Committee on Rules and increases the number of times the committee makes rule recommendations to the NH Supreme Court each year from one (in August) to two (in April and November). It also provides a more detailed process for the adoption of temporary rules, which theoretically would not be needed as often, given the more frequent reports to the Court.

NH Supreme Court Justice Robert Lynn, who chairs the advisory committee on rules, said in a recent memo that he believes the proposal “greatly improves the current rulemaking process.”

Many attorneys believe the court too often adopts temporary rules without receiving input from those outside the court system, and some feel the court rules are too voluminous and too complex. The proposal does not eliminate or simplify any existing rules or increase communication from the court or the committee about the status of proposed rule changes.

Under the existing rule, it can take two years for a typical suggested rule change to make it through the review process, which almost always involves a (sparsely attended) public hearing before the 16-member rules committee, either in June or December. The committee then collects its recommended changes in its annual report to the Court.

The Supreme Court, once it receives the committee’s recommendations in August, seeks written comment on the proposed rules. After the 30-day comment period, the Court can adopt the rules – as they are, or with amendments – or send them back to the committee for further review. The Court also can elect to have its own public hearing (See related story).

The proposed revisions to Supreme Court Rule 51, which governs the rulemaking process, formalize a practice under which the committee would select which proposed rule changes required a public hearing and which should be sent directly to the Court for review and public comment. When the committee chair believes a suggested rule or amendment justifies expedited consideration, he can send it directly to the Court, along with his reasoning. If the Court agrees, it “shall afford such notice and opportunity for comment and hearing as may be practicable” before considering the rule for adoption.

But that won’t stem the steady growth in the total number of court rules in New Hampshire, says David Slawsky, a Manchester attorney who, somewhat inadvertently, has made court rulemaking a sort of pet project in recent years.

A proponent of New Hampshire having fewer, simpler court rules, Slawsky helped rewrite and reorganize the court rules several years ago, when he chaired the NH Bar Association Committee on Cooperation with the Courts. A modified version of his proposal was adopted in late 2013. He was asked last fall to work with other attorneys and court officials on revising Rule 51.

“I tried to persuade them that what they really need to do is to take a look at the rules we have and figure out which ones could actually be eliminated or simplified,” Slawsky said.

Following those discussions, an eight-member subcommittee of the rules committee met twice in late 2014 and came up with the proposed amendments to Rule 51.

The rules committee in December voted to recommend the five-page revised Rule 51 to the Supreme Court for adoption, but given that the change will need to make its way through the current process, it’s unlikely that the process will change any time soon.

Slawsky, meanwhile, thinks the committee, the subcommittee and the Court should rethink the purpose and format of procedural rules. He said some newer attorneys welcome rules because they provide guidance, while others wonder why the rules need to be so detailed.

“I don’t have any real problem with rules,” Slawsky said. “I have a problem with a proliferation of confusing rules that only those in the know can understand.”

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