Have you ever heard about a court case and thought, “gee, I would really like to express my opinion about what is going on…”? Well, you can. It’s called an “Amicus Curiae” or more popularly known as an amicus brief.
Don’t get me wrong, I have never tried this out and should not be considered any kind of an authority. I do think however, that we as members of the community should participate in our government and this is a time honored way to do so.
There is a case going on right now that I have a personal interest in but am not a “party” to. Nonetheless, this case will have an indirect effect on me as it involves the type of residence in which I live , that being an SRO hotel located here in the city of San Francisco (you know, the hotel that this here blog is concerned with).
There were six officers who did some illegal searches on some SRO hotel tenants here in San Francisco and subsequently violated their civil rights. The officers also ripped the tenants off and liberated them of some pricey electronics. Suffice it to say, those officers are being “kid gloved” in federal court a full three years after the fact. Three years after you and I, the taxpayer, made some of the victimized tenants whole again with a substantial city settlement.
Both as a San Francisco resident and as a tenant of an SRO hotel, I feel like I should have a say at some point in the proceedings. After all, the case does have something to do with me for I too, have suffered misconduct here in the All Star Hotel at the hands of police. I called them twice on an employee here. They refused to cite the employee even though he was dead drunk, they then lied on their reports and said that he wasn’t (drunk). They said he was sober, not intoxicated. Tell me, when a person has slurred speech, reeks of alcohol and spends his shift either verbally abusing tenants, using hate speech or being “passed out”, that person is probably drunk, right?
So, I want my say in court about what these officers did and are accused of, abusing near homeless SRO hotel tenants. Problem is, they didn’t commit their crimes against me personally. Solution? I will file an amicus brief. After it is over, I will tell you how it all went.
By the way, I attended the accused officer’s first federal court hearing and spoke to the prosecutor as well. I asked him if it would be permissible to speak at some point during the hearings and he referred me to a couple of FBI agents whom I never did talk to.
A word of caution here, anyone who speaks to any federal agent in an investigative capacity had better have their facts straight. Whether you intentionally lie or just honestly don’t remember correctly, you can be charged with a felony for making false or misleading statements to a federal officer, ANY FEDERAL OFFICER. Just a thought.
Amicus curiae aka “Amicus Brief”
(video from Youtube)
excerpted from “The Free Dictionary“.
Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. They may be filed by private persons or the government. In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.
An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An amicus curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.
The most common arena for amici curiae is in cases that are under appeal (are being reconsidered by the court) and where issues of public interest—such as social questions or civil liberties—are being debated. Cases that have drawn participation from amici curiae are those involving Civil Rights (such as 1952’s brown v. board of education), Capital Punishment, environmental protection, gender equality, infantAdoption, and Affirmative Action. Amici curiae have also informed the court about narrower issues, such as the competency of a juror; or the correct procedure for completing a deed or will; or evidence that a case is collusive or fictitious—that is, that the parties are not being honest with the court about their reasons for being there.
The privilege that friends of the court are granted to express their views in a case is just that: amici curiae have no right to appear or to file briefs. Unless they represent the government, amici curiae must obtain leave (permission) to do so from the court, or consent of all parties in the case, before filing. No court is obligated to follow or even to consider the advice of an amicus curiae, even one it has invited.
The principle that guides the appropriate role of a friend of the court is that he or she should serve the court without also acting as “friend” to either of the parties. Rules of court and case law (past court decisions) have attempted to spell out the sometimes tricky specifics of how an amicus curiae should—and should not—participate in a case.
For example, Missouri’s supreme court in 1969 distinguished the role of amicus curiae from the normal role of the attorney in assisting the court. In this case, the court requested the attorney who had formerly represented the parties in the case to help elicit testimony and cross-examine witnesses. The lawyer also made objections and argued objections against the city, which was defending the lawsuit over Zoning. In seeking the payment of attorney fees for his services, the attorney argued that he had served as amicus curiae due to his acting at the court’s request. The supreme court found that “in the orderly and intelligent presentation of the case, he rendered assistance to the court, the same as any attorney who contributes to the orderly presentation of a case. He was appearing, however, not as an adviser to the court but as a representative of private litigants … advancing their partisan interests … and is not entitled to have the fee for his admittedly valuable and competent professional services taxed as costs” (Kansas City v. Kindle, 446 S.W. 2d 807 [Mo. 1969]).
The amicus curiae walks a fine line between providing added information and advancing the cause of one of the parties. For instance, she or he cannot raise issues that the parties themselves do not raise, since that is the task of the parties and their attorneys. If allowed by the court, amici curiae can file briefs (called briefs amicus curiae or amicus briefs), argue the case, and introduce evidence. However, they may not make most motions, file pleadings, or manage the case.
Whether participating by leave or by invitation, in an appearance or with a brief amicus curiae, a friend of the court is a resource person who has limited capacity to act.
Jost, Kenneth. 2001. “The Amicus Industry.” California Lawyer 21 (October): 40.
Hollis, Duncan B. 2002. “Private Actors in Public International Law: Amicus Curiae and the Case for the Retention of State Sovereignty.” Boston College International and Comparative Law Review 25 (spring): 235–55.
Robbins, Josh. 2003. “False Friends: Amicus Curiae and Procedural Discretion in WTO Appeals Under the Hotrolled Lead/Asbestos Doctrine.” Harvard International Law Journal 44 (winter): 317–329.
amicus curiae n. Latin for “friend of the court,” a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. For example, the American Civil Liberties Union often files briefs on behalf of a party who contends his constitutional rights have been violated, even though the claimant has his own attorney. Friends of the Earth or the Sierra Club may file a supporting brief in an environmental action in which they are not actually parties. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party’s presentation to the court.
Burton’s Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.
AMICUS CURIAE, practice. A friend of the court. One, who as a stander by, when a judge is doubtful or mistaken in a matter of law, may inform the court. 2 Inst. 178; 2 Vin. Abr. 475; and any one, as amicus curia, may make an application to the court in favor of an infant, though he be no relation. 1 Ves. Sen. 313.
A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
The vehicle through which representatives of special interest groups are able to express opinions on matters before the Court is called an amicus curiae (pl. amici curiae), or “friend of the court” brief (or sometimes academic paper) related to questions of law or fact in the case at bar.The group or individual filing the brief is not a party to the case, and has no legal standing to participate in litigation, but has an interest in the outcome. Often, the amicus presents a point of law or of psychological or sociological relevance to the case.In order to be eligible to provide an amicus curiae, a person or group not party to the litigation under review, but who believes the Court’s decision may affect its interest, may file if: 1) the brief is accompanied by written consent of all parties; or, 2) they file a motion for leave to submit amicus curiae to the Supreme Court, identifying why the “friend” has an interest in the case, and explaining the reasons the submission may be useful to the Court.The Court is under no obligation to grant permission, nor to read the brief. Acceptance or rejection is solely at the Court’s discretion, except when amici are filed by the United States, a U.S. agency, State, Territory, or Commonwealth. These are automatically accepted.
Rule 37(1) of the Rules of the Supreme Court of the United States explains:
At the request of chief counsel for either party, the Court may grant a motion of an amicus to participate in the oral argument. In this case, the Petitioner or Respondent (whichever is appropriate) must allocate part of his or her allotted 30 minutes for the amicus argument; the Court does not extend presentation time to accommodate additional speakers.
(The last two paragraphs apply only to the Supreme Court of the United States.)
Normally, groups that have a financial, political, or philosophical reason to want the court to rule in a particular way in a given case ask the court for permission to file a brief as amicus curiae, and if the court grants permission then the group can do so.
In lower court cases, Amicus curiae or friend of the court is someone who brings to the courts attention some point of law or fact something which would otherwise have been overlooked usually this would be a member of the bar and occasionally the law officers are asked or are allowed to argue a case in which they are not instructed to appear.
from Wikipedia –
||The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (June 2012)|
An amicus curiae (also amicus curiæ; plural amici curiae, literally “friend of the court“) is someone who is not aparty to a case who offers information that bears on the case but who has not been solicited by any of the parties to assist a court. This may take the form of legal opinion, testimony or learned treatise (the amicus brief) and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin.
The amicus curiae figure originates in Roman law. Starting in the 9th century, it was incorporated into English law, and it was later extended to most common law systems. Later, it was also introduced in international law, in particular concerning human rights. From there, it was integrated in some civil law systems (it has recently been integrated into Argentina‘s law system and Honduras‘s 2010 civil procedures code). Today, it is used by the European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, and the Court of Justice of the European Union.
The role of an amicus is often confused with that of an intervener. The role of an amicus is, as stated by Salmon LJ (as Lord Salmon then was) in Allen v Sir Alfred McAlpine & Sons Ltd  2 QB 229 at p. 266 F-G:
- I had always understood that the role of an amicus curiae was to help the court by expounding the law impartially, or if one of the parties were unrepresented, by advancing the legal arguments on his behalf.
The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. Appellate cases are normally limited to the factual record and arguments coming from the lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients. Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns, so that the possibly broad legal effects of court decisions will not depend solely on the parties directly involved in the case.
In prominent cases, amici curiae are generally organizations with sizable legal budgets. In the United States, for example, non-profit legal advocacy organizations, such as the American Civil Liberties Union, the Landmark Legal Foundation, thePacific Legal Foundation, the Electronic Frontier Foundation, the American Center for Law and Justice or NORML, frequently submit such briefs to advocate for or against a particular legal change or interpretation. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard. In the United States, federal courtsoften hear cases involving the constitutionality of state laws. Hence states may file briefs as amici curiae when their laws are likely to be affected, as in the Supreme Court case McDonald v. Chicago, when thirty-two states under the aegis of Texas (and California independently) filed such briefs.
Amici curiae who do not file briefs often present an academic perspective on the case. For example, if the law gives deference to a history of legislation of a certain topic, a historian may choose to evaluate the claim from specialized expertise. An economist, statistician, or sociologist may choose to do the same. Newspaper editorials, blogs, and other opinion pieces arguably have the capability to influence Supreme Court decisions as de facto amici curiae. They are not, however, technically considered amicus curiae, as they do not submit materials to the Court, do not need to ask for leave, and have no guarantee that they will be read.
United States Supreme Court Rules
The Supreme Court of the United States has special rules for amicus curiae briefs sought to be filed in cases pending before it. Supreme Court Rule 37 states, in part, such a brief should cover “relevant matter” not dealt with by the parties which “may be of considerable help”. The cover of an amicus brief must identify which party the brief is supporting, or if the brief supports only affirmance or reversal. Supreme Court Rule 37.3(a). The Court also requires that, inter alia, all non-governmental amici identify those providing a monetary contribution to the preparation or submission of the brief. Supreme Court Rule 37.6. Briefs must be prepared in booklet format, and 40 copies must be served with the Court.
In the United States Supreme Court, unless the amicus brief is being filed by the federal government (or one of its officers or agents) or a U.S. state, permission of the court (by means of motion for leave) or mutual consent of the parties is generally required. Allowing an amicus curiae to present oral argument is considered “extraordinary”.
Justice, To Assist the Court: Third Party Interventions in the UK (2009)
- Judithanne Scourfield McLauchlan (2005). “Congressional Participation As Amicus Curiae Before the U.S. Supreme Court”. LFB Scholarly Publishing. p. 266. ISBN 1-59332-088-4.
- Gura, Alan (7 July 2009). “Thirty-four states support second amendment incorporation”. ChicagoGunCase.
- Lee, Rachel C. (April 2009). “Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era”.Stanford Law Review 61 (6): 1535–1571. Archived from the original on 2009-05-21.
- Dawson, Keith (8 May 2009). “Bloggers Impacting the World of Litigation”. Slashdot.
- Rule 37(1).
- United States Supreme Court Rule, 33
- FRAP 29.
|Wikisource has the text of the 1911 Encyclopædia Britannica article Amicus Curiae.|