Vail Law: Here’s a look into ‘amicus curiae’ — friends of the court (column)
April 17, 2018
"… You've got a friend in me
You've got a friend in me
You got troubles, I've got 'em too,
There isn't anything I wouldn't do for you,
“An amicus brief is like a little friendly kibitzing, offering a pinch of guidance and dash of advice for the court to ruminate upon before it renders what might be an outcome with implications that may reach beyond the actual contestants.”
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We stick together and see it through,
'Cause you've got a friend in me
You've got a friend in me …"
— Randy Newman
The court has friends, too. Lots of them, in fact. They are known to the court as amicus curiae — literally, "friend of the court."
Bells might be ringing in your head — church bells, maybe? And with good reason. You've heard of the papal curia, perhaps? "Curia" in medieval and later Latin means "court." While in the context of the papacy, the term has come to be used more in the sense of a royal court than a court of law, the word origin is the same. The papal or Roman Curia is the administrative apparatus of the Holy See, you see; the central government of the Roman Catholic Church.
While sharing the Latin word origin for "court," an amicus curiae is a different beast entirely. Before unveiling the beast's taxonomy, however, a little context is in order.
Parties and friends
In a lawsuit, there are "parties." No, you're not missing anything; wine and canapes are not distinctly served at these particular reveries. In fact, these parties aren't festivities at all. A "party" to a legal action is a person whose name is designated on the record as a plaintiff or defendant. Nothing to celebrate at all, really. The term "party" denotes one having a right to control the proceedings, to make and present defenses, to adduce and cross-examine witnesses and to appeal from a judgment. It's someone in the thick of it.
In any event…
"Party" is a technical term in law, having a precise meaning. It refers to those by or against whom a legal suit is brought. All others affected by action of the court are persons "interested," but not themselves parties. And this is the slender crack through which amicus come in.
A person with a strong interest in, or with views on the subject matter of a particular action, may petition the court for permission to file a brief, ostensibly on behalf of one party or another, but actually to suggest a rationale consistent with its own views. You'll note I said the person must be granted permission. Not every Tom, Dic, and Harry with a pen clenched in his gnarled fist may address the court.
Such amicus curiae briefs are most commonly filed in appeals concerning matters of broad public interest, for example, in civil rights cases.
A brief digression here…
A brief is a written statement, generally prepared by counsel, arguing a case in court and containing a summary of the facts of the case, citing pertinent law, and advancing an argument of how the law applies to the facts in support of the position taken.
Amicus briefs may be filed by private persons or entities or by a governmental body. In federal cases — like the one I'm about to discuss below — the Solicitor General (the Chief Poohbah of federal litigation) is usually invited to the show and, all kidding aside, shows up — if he is to address the court — in "morning clothes" — the pre-5 p.m. version of men's formal wear, consisting of a frock coat with tails, stripey pants and a vest. Like so many of the court's goofy sartorial traditions, the Solicitor General's morning coat seems to have lingered on for decades merely because it has lingered on for decades.
Most amicus, however, do not address the court, except by the power of the pen.
An example is in order:
In the well-known case of District of Columbia vs. Heller, the landmark 2008 decision that held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for such things as self-defense, there was, unsurprisingly, a ton of interest. It seemed everyone had a dog (or pony) in this dog and pony show.
But alas, the party was limited to two: Heller, a special police officer for the District of Columbia, and the District itself. Although the Solicitor General got to make a cameo. But the rest of those who wanted to crash the party, among them the National Rife Association and, on the other side of the political spectrum, the Brady Campaign to Prevent Gun Violence.
Although Heller and D.C. were to face off at 20 paces at high noon in the well of the Supreme Court, the NRA, the Brady Campaign and 60-plus other organizations, spanning from the Alaska Outdoor Council, through Jews for the Preservation of Firearm Ownership and the American Academy of Pediatrics, to Professors Erwin Chemerinsky and Adam Winkler, wanted to have their say. And have their say they did, through the vehicle of their amicus briefs, arguing both in support of Heller and against him, but also carving out their own particular fiefdoms of interest.
As such, they were acting as friends of the court, offering the court various versions of the truth as they viewed it, and presenting arguments and perspectives for the court to take into consideration when muddling its way to a decision.
In this way, the argument goes, with friends like these, justice is more fully served.
An amicus brief is like a little friendly kibitzing, offering a pinch of guidance and dash of advice for the court to ruminate upon before it renders what might be an outcome with implications that may reach beyond the actual contestants.
And that, my friends, may be a friendly act indeed.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.