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Vail Law: Just what is a ‘friend of the court?’

Rohn Robbins
Vail, CO, Colorado

The court has friends. Lots of them, in fact. They are known to the court as amicus curiae, or “friend of the court.”

Bells might be ringing in your head and with good reason. “Curia” in medieval and, later, Latin means “court.” While in the context of the Catholic Church, 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.

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.

There are “parties” in every lawsuit. You’re not missing anything – wine and canapes are not served. A “party” to a legal action is a person whose name is on the record as a plaintiff or defendant. No reason to celebrate at all, really.

“Party,” in the law, 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 parties. And this is where “amicus” comes in.

A person with a strong interest in or with views on the subject 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. Such amicus curiae briefs are most commonly filed in appeals concerning matters of broad public interest, for example, in civil rights cases. A brief is a written statement, generally prepared by legal 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.

An example is in order.

Last year, a Denver trial court ruled that Colorado Senate Bill 199 was unconstitutional. The bill amended the Colorado School Finance Act and affected property taxes in 175 of the 178 school districts in Colorado. The bill had implications affecting section of the Colorado Constitution known as the Taxpayer Bill of Rights, or TABOR. The parties to the suit included the Mesa County Commissioners and certain taxpayers as plaintiffs and the State Department of Education and Gov. Bill Ritter as defendants. The defendants lost appealed to the Colorado Supreme Court.

The implications of the Mesa County case portended to be far-reaching, with ramifications potentially affecting various governmental bodies in addition to the Department of Education.

Recognizing the potential consequences, several counties – Eagle County among them – petitioned to file amicus curiae briefs to the Supreme Court, arguing both in support of the defendant’s position but also carving out their own particular fiefdoms of interest. As such, they were acting as “friends of the court,” presenting various arguments and perspectives to take into consideration when rendering its decision. In this way, the argument goes, justice is more fully rendered, affording relief not only to the parties themselves but also taking into consideration the interests of other potentially affected persons.

An amicus brief is like a little friendly kibitzing, offering a pinch of unsolicited advice to the court for it to ruminate upon before it renders what might be a decision with implications which may reach beyond the actual contestants. It’s like advice from your mother-in-law which, although unrequested, just might contain a kernel of truth. And offering it 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. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926.4461 or at robbins@colorado.net.


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