What Amici Curiae Can and Cannot Do with Amicus Briefs, 0417 COBJ, Vol. 46 No. 4 Pg. 23

• Author: Stephen G. Masciocchi, J.

46 Colo.Law. 23

What Amici Curiae Can and Cannot Do with Amicus Briefs

Vol. 46, No. 4 [Page 23]

The Colorado Lawyer

April, 2017

Appellate Law

Stephen G. Masciocchi, J.

Amici curiae play important roles in modern litigation. This article explores the functions and limitations of amici curiae, with a focus on Colorado and Tenth Circuit practice.

Amicus curiae briefs have become a fixture of high-stakes appellate litigation. The prevalence of amicus briefs is illustrated by the recent battle over President Trump’s initial executive order on immigration In Washington v. Trump,¹ the Ninth Circuit denied defendants’ motion for an emergency stay just six days after defendants filed the motion, yet in those few days, amici filed more than three dozen amicus briefs and letters.² But this number pales in comparison with Kitchen v. Herbert, where the Tenth Circuit received “scores of amicus briefs on either side” of a case involving the constitutional right to same- sex marriage.³ The briefs in Kitchen were submitted by hundreds of amici, whom the court listed in a multi-page appendix.⁴ The amici included states, counties, civil rights organizations, churches, religious organizations, employers, legal advocacy groups, bar associations, law professors, academic scholars, and unaffiliated individuals.⁵

Amici curiae have moved far beyond their original role as objective third parties, and amicus briefs now serve many functions. Amici advocate legal positions, examine policy issues, provide courts with unique perspectives, and point out the consequences of a court’s action or inaction Amici’s participation is not limited to supporting or opposing the parties’ appellate briefs on the merits; in the process of providing their perspectives, amici often make unique arguments and offer evidence outside the appellate record. This practice is controversial, and appellate courts’ consideration of such evidence has been both lauded and criticized.

This article examines what amici can and cannot do as “friends of the court,” with an emphasis on Colorado and Tenth Circuit practice.

How Amici Can Participate

Amicus curiae briefs can, of course, be filed in support of a party’s brief on the merits in Colorado and federal appellate courts. Amicus briefs are expressly permitted by U.S. Supreme Court Rule (SCR) 37, Federal Rule of Appellate Procedure (FRAP) 29, and Colorado Appellate Rule (CAR) 29. In the federal appellate courts, proposed amici (except certain government entities) must disclose whether a party’s counsel authored the amicus brief in whole or part, and whether a party, its counsel, or any person other than the amicus, its members, or its counsel contributed money intended to fund the brief.⁶ These disclosures assist the courts both in considering recusal and in assessing the amicus’s credibility.⁷ CAR 29, by contrast, contains no such requirements.

But amici are not limited to buttressing the parties’ merits briefs. Amici arguably have the most impact in supporting requests for discretionary appellate review, and “it is difficult to overstate the value of amicus support at the certiorari stage.”⁸ Several studies have shown that amicus participation significantly increases the certiorari acceptance rate in the U.S. Supreme Court.⁹ SCR 37.2 expressly permits amicus briefs in support of certiorari petitions and sets forth procedural requirements. The Federal Rules of Appellate Procedure and the Colorado Appellate Rules do not explicitly allow amicus briefs to be filed in support of petitions for certiorari, mandamus, and other forms of discretionary review. Yet both the Tenth Circuit and Colorado Supreme Court permit amicus participation in support of such petitions.¹⁰ In the Tenth Circuit, amici are also permitted to file FRAP 28(j) letters, even though the rule states that a “party” may submit supplemental authorities.¹¹

What about trial courts? The Federal Rules of Civil Procedure are silent on the filing of amicus briefs. Notwithstanding “the absence of a specific provision” in the rules authorizing amicus briefs, “District Courts have long been permitted to allow amicus appearances at their discretion.”¹² Judges in the District of Colorado have frequently allowed or even solicited amicus participation in cases involving novel questions or matters of significant public import.¹³ Likewise, despite the lack of a Colorado Rule of Civil Procedure permitting amicus briefs, Colorado state trial courts have allowed meaningful amicus participation for decades.¹⁴

There are, however, limits on the scope of amicus participation. Amicus briefs generally must comply with lower page limits. For instance, amicus briefs in federal circuit courts and Colorado appellate courts are limited to one-half the maximum length of a party’s principal brief.^[15] Amici curiae also cannot file reply briefs or participate in oral argument without court permission.¹⁶ Amici, in short, do not have the same rights as parties.

What Issues, Arguments, and Evidence Can Amici Present?

Appellate courts liberally allow the filing of amicus briefs. A notable exception is Judge Richard Posner, who has observed that most amicus briefs merely repeat the parties’ arguments, and who famously suggested that amici should be granted leave to participate only “when a party is not represented competently or is not represented at all, when an amicus has an interest in some other case that might be affected by the decision in the present case,” or “when the amicus has a unique perspective” beyond that of the parties and their lawyers.¹⁷ Before ascending to the U.S. Supreme Court, Justice Samuel Alito penned a strong retort, where he advocated that appellate courts err on the side of granting leave to submit amicus briefs to ensure disparate viewpoints and open courts.¹⁸ Given the volume of amicus briefs filed in the Tenth Circuit and the Colorado appellate courts, those courts have plainly rejected the Posner view.

Appellate courts give amici curiae fairly wide latitude in presenting arguments on appeal. Amici can, for instance, buttress a party’s legal arguments with their own.^[19] They can shore up a weak merits brief and provide a more in-depth legal analysis.²⁰ But the core role of an amicus is to make policy arguments that explain how adopting a new rule or rendering a particular decision will benefit or harm those who are not before the court, including other litigants and society as a whole. Policy arguments thus educate courts about practical considerations that courts may decide to factor into their legal analysis.²¹

Perhaps the most impactful-yet controversial-role of an amicus is to file a so-called Brandeis brief, in which the amicus supports its policy arguments with reliable, outside-the-record evidence to influence the court’s decision²² An informative example is the amicus brief filed in Adarand Constructors, Inc. v. Pena, a case involving an equal protection challenge to a race-based federal highway subcontracting program.²³ There, in support of the government’s argument that it had a compelling state interest in the program, the amicus brief supplied a variety of extra-record materials, including:

• “a non-exhaustive list of congressional hearings and reports on discrimination against disadvantaged businesses”;

• “disparity studies,” conducted after the program went into effect, assessing actual use of minority-owned businesses; and

• “academic findings confirming disparate treatment of minority- owned businesses by commercial lenders.”²⁴

The first of these-hearings and government reports contained in the legislative record-were non-controversial. Courts frequently use legislative history in interpreting legislative intent and reviewing legislative action, and the plaintiff had no per se objection to the use of such materials to demonstrate whether the government had...