When Can Someone Become an Amicus Curiae (Friend of the Court) on Appeal?

There are times when a non-party to a case would like to have his, her, or its views heard by an appellate court.  A way to do that is to become an amicus curiae (in English, a friend of the court).  But when is one able to do that?

In federal court, Federal Rule of Appellate Procedure 29 deals with amicus curiae briefs.  That rule states that the United States or one of its officers or agencies, or a State, may file an amicus curiae brief without the need for consent of the parties or permission of the court.  Other proposed amici curiae, however, “may file a brief only by leave of court or if the brief states that all parties have consented to its filing.”

Rule 29 requires that a motion be filed by the proposed amicus curiae, and that the motion be “accompanied by the proposed brief.”  That way, the court can see what the proposed amicus has to say.  What the amicus will add is an important criterion in the appellate court’s decision as to whether to grant amicus status.  Indeed, Rule 29(b) requires the motion to state “the movant’s interest and the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.”  The cover of the brief itself must “identify the party or parties supported [by the amicus] and indicate whether the brief supports affirmance or reversal.”

The object of the rule is to ensure that the amicus brief “brings relevant matter to the Court that has not already been brought to its attention by the parties,” as the Advisory Committee note to Rule 29 states.  The Third Circuit has similarly said that granting amicus curiae status is desirable “where third parties can contribute to the court’s understanding.”  Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987).  If the amicus does not add anything, its brief is merely an additional burden on the court and will not be accepted.  Likewise, if the movant does not meet the “implicit” requirements of Rule 29:  “(a) an adequate interest, (b) desirability, and (c) relevance,” amicus status will not be granted.  Neonatology Assocs., P.A. v. Commissioner of Internal Revenue, 293 F.3d 128, 130-31 (3d Cir. 2002).

Finally, Rule 29(c)(5) requires disclosure of whether “(A) a party’s counsel authored the brief in whole or in part; (B) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and (C) a person– other than the amicus curiae, its members, or its counsel– contributed money that was intended to fund preparing or submitting the brief and, if so, identifies such person.”  The object of this part of the rule is to ensure that amici are not used as the tool of parties or other undisclosed non-parties.  The court has a right to know who is really behind the amicus brief.

Absent permission of the court, an amicus brief is limited to one-half the length of a party’s principal brief, so concise briefing is important for amici.  Amici may not submit reply briefs or argue orally unless the court grants permission.

The amicus curiae in New Jersey state courts is similar in various ways to Federal Rule of Appellate Procedure 29, though it is less detailed.  Rule 1:13-9 requires that an application to appear as amicus curiae “shall be made by motion in the cause stating with specificity the identity of the applicant, the issue intended to be addressed, the nature of the public interest therein and the nature of the applicant’s special interest, involvement or expertise in respect thereof.”  Rule 1:13-9 generally requires the proposed amicus brief to be submitted with the motion.

Rule 1:13-9 states that “[t]he court shall grant the motion if it is satisfied under all the circumstances that the motion is timely [refer to Rule 1:13-9(e) and (f) for some time requirements], the applicant’s participation will assist in the resolution of an issue of public importance, and no party to the litigation will be unduly prejudiced thereby.”  Similar to the Third Circuit caselaw, the Supreme Court of New Jersey has stated that amicus status is granted to ensure that “all recesses of the problem will be earnestly explored.”  Whelan v. N.J. Power & Light Co., 45 N.J. 237, 245 (1965).

The cases have allowed a wide range of individuals and entities to become amici.  These have included lawyers with an expertise in the subject matter of the appeal, North Bergen Action Group v. North Bergen Tp. Planning Bd., 122 N.J. 567 (1992) [Disclosure:  I represented a party in this case], and companies involved in other pending litigation on the same issue, Coons v. American Honda Motor Co., Inc., 94 N.J. 307 (1983).  [Disclosure:  I have borrowed the material in this paragraph from the chapter titled “Supreme Court Review” in ICLE’s Appellate Practice Handbook.  I am the author of that chapter.]

Unlike Federal Rule 29, Rule 1:13-9 does not expressly state whether an amicus can argue orally.  Certain amici, such as the Attorney General’s Office, the New Jersey League of Municipalities, and the Consumers League of New Jersey [Disclosure:  I have represented the Consumers League as an amicus curiae] seem regularly to be granted the right to argue orally, while other amici often are not.  It is not clear when the appellate courts will allow amici to argue.  If amicus counsel wants to argue, a request should be made.

Acting as an amicus can be a significant way to get your client’s views heard in a case to which the client is not a party.  It is something to keep in mind.