BFF's With the Court: How Can My Group Be a Friend of the Court? How might an amicus curiae brief assist my organization and its members?

by Jaburg Wilk

When you think about it, an amicus brief - "friend of the court" is a quite agreeable concept.  As a non-party to the case, with no direct interest in the outcome, you can explain to the court - as a friend, not a litigant - why its ultimate decision has larger ramifications.  Last March, 212 members of Congress made news by filing an Amicus Brief in the United States Supreme Court in U.S. v. Edith Schlain Windsor, the challenge to Section 3 of the 1996 Defense of Marriage Act (DOMA).  Thirty two states filed amicus briefs in McDonald v. Chicago, the 2010 case that held that the right of an individual to "keep and bear arms" is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.  Your group may have another interest to protect that is no less important to your own members.

For example, my firm represented a trustee association as an amicus on a question certified from the bankruptcy court to the Arizona Supreme Court -  whether a trustee's sale of real property could be set aside solely on the basis that the bid price was grossly inadequate.  Active members of the trustee association were  individuals and entities engaged in all aspects of non-judicial foreclosures, including the preparation of title reports, the posting and publishing of notices, the legal analyses, the appraisals and valuation, and the conduct of trustee's sales at public auctions.  Affiliates of the association were realtors, investors and others with ancillary interests in the foreclosure process.   In our request for leave to appear as Amicus Curiae, we advised the Arizona Supreme Court that, by virtue of their direct and continuing involvement in real estate foreclosure industry, the trustee association and its members had a substantial interest in the outcome of the certified question, and that proper resolution of the issue was crucial to the continued viability of the foreclosure industry in Arizona.  The Court granted the request, permitting our client to be heard as a friend of the Court, and thereby providing a broader base for the Court's decision.

U.S. Supreme Court Rule 37 provides that an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties "may be of considerable help to the Court." However, an amicus curiae brief that does not serve this purpose "burdens the Court and its filing is not favored."   The Rule provides a specific procedure and timing for filing an amicus brief in the Supreme Court.  No motion for leave to file an amicus brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of an agency of the United States allowed by law to appear before the Court when submitted by the agency's authorized legal representative; on behalf of a state, when submitted by its Attorney General; or on behalf of a city, county, town or similar entity when submitted by its authorized law officer.  For all other entities, such as a trustee association, a religious group, a group with a political leaning, or other advocacy group, the putative amicus curiae must either obtain written consent of all parties, or file a motion for leave to file the brief.

The Rule is similar in Arizona, where the state, and any county, city or town may file an amicus brief without either consent of the parties or leave of court.  Other entities must, again, have either consent of all the parties or leave of Court.  In a Comment to the 1998 Amendment, the drafters noted that, even though the current Rule permits amicus briefs to be filed without leave of court with consent of all parties, "amicus curiae should keep in mind the purpose of an amicus brief."  The Comment pointed out, in a nod to the Supreme Court Rule, that the brief "should assist the Court, not advocate a particular litigant's case."  Moreover, the drafters caution, the brief should not duplicate those of the parties, nor merely extend the length of a litigant's brief.  Rather, "it should provide a broader, more abstract presentation of law that is not narrowly tied to the facts of the case."

What types of cases might you see in amicus briefs?  Certainly, significant criminal cases, including State v. Butler,[i] where a long list of amici curiae appeared on the question whether, notwithstanding the implied consent law, consent must be voluntary under the Fourth Amendment for a blood draw to be admissible.  Amici curiae included National College for DUI Defense, Arizona Attorneys for Criminal Justice, and ACLU of Arizona.  But there are also a multitude of commercial cases where a business or civic organization claims an overriding interest in the outcome and has been heard as an amicus.  For example, Division Two of the Arizona Court of Appeals permitted and quoted from a brief filed by the Manufactured Housing Communities  of Arizona, on the question whether a mobile home part as a whole or only its individual constituent spaces can be considered a nonconforming use under the applicable statute.[ii] In a recent medical malpractice case,[iii] the Arizona Supreme Court considered the briefs of Arizona Association for Justice/Arizona Trial Lawyers Association, an insurance company, a pair of individuals and the Arizona Medical Association.  The case involved the interpretation and constitutionality of the Arizona statute that sets forth requirements for experts who testify about the appropriate standard of care in medical malpractice cases.  Of particular note are cases where the Court expressly acknowledges and addresses the positions of the amici, as in Sell v. Gama[iv], where the Court found that the various policy arguments advanced by a party and certain of the amici "are better directed to the legislature."   Two groups of organizations, including a variety of school districts and the Maricopa County Consumers Advocate and Providers, filed amicus curiae briefs in Fogliano v. Brain ex rel. County of Maricopa.   The Court quoted from the amicus briefs on issues of options for available sources of funding, but determined that the controversy over the Legislature's funding decisions and resulting enrollment freeze was not one it should decide because it involved a nonjusticiable political question.

In each of these cases, the role of the amicus brief was to educate the court as to some broader aspect of the case and its potential impact on society, groups of similarly situated entities and individuals, and future litigants.  While the filing of an amicus brief will not be appropriate in every case, as Judge Samuel Alito (now Justice Alito)  recognized,  "an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court's friend." Neonatology Assocs. v. Comm'r of Internal Revenue, 293 F.3d 128, 131 (3d Cir.2002).

If an appellate case may impact your industry, consider filing an amicus brief. 

[i] 232 Ariz. 84, 302 P.3d 609 (2013).

[ii] Stagecoach Trails MHC, L.L.C. v. City of Benson

--- P.3d ----, 2013 WL 3788800 (App. 2013).

[iii] Baker v. University Physicians Healthcare,

231 Ariz. 379, 296 P.3d 42 (2013).

[iv] 231 Ariz. 323, 295 P.3d 421 (2012)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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