Real Estate & Property Law

The Brief Amicus Curiae: How To Win Friends, And Influence Courts

By Robert Thomas (inversecondemnation.com)

Good article at Slate by an ex-SCOTUSblogger, advocating for more "liberal group" amicus participation at the cert stage in cases before the U.S. Supreme Court, "The Early Brief Gets the Worm" --

When left-leaning groups ignore an opportunity to tell the court to hear the cases most likely to be decided in their favor, they are doing their causes a disservice.

The article also describes the U.S. Supreme Court's caseload, and the daunting prospect of having your case be one of the select few that gets to make history that Term  (9,000 cert petitions a year, 69 grants: you do the math). 

The author's call for appellate advocacy by amici curiae ("friends of the court") at all stages of important cases before the U.S. Supreme Court is equally valid in Hawaii appellate courts, especially now that the Intermediate Court of Appeals is the court of first appeal and the Hawaii Supreme Court is a discretionary review court.  See this post for more. 

Amicus briefs are those filed by individuals or groups who are not parties to the litigation, but who have some insight, expertise, or stake in the outcome, such that the court would be assisted by their input.  Common examples are litigants in similar situations whose cases may be affected by the outcome in the case being considered, industry groups potentially affected by the rule of law that may be established,or lawmakers or academics who have some interest in providing the court with their views on the case. So much of the litigation currently instituted is of public or quasi-public interest, and often the judicial forum is just another "front" is what may be a political "war" (as the Slate article phrases it). Recent examples from Hawaii courts include:

• The Hawaii Superferry case, Sierra Club v. Department of Transportation of the State of Hawaii, 115 Haw. 299, 167 P.3d 292 (2007), which started with a plaintiff victory in the Hawaii Supreme Court, followed by legislation effectively overruling the decision, and now followed by a return visit to the Supreme Court (oral arguments in the latest round are scheduled for December 18, 2008).

• The UFO Chuting case, where a federal district court struck down the State of Hawaii's limitations on navigation in public waters off Maui designed to protect humpback whales, since the state had no authority to interfere with federally protected navigation. Hawaii's congressional delegation subsequently quietly inserted in a massive appropriations bill a provision that wiped out the district court's ruling, and when the court reconsidered the issue, upheld the State's regulation. 
  

• The "Kauai Property Tax" case, where elected government officials from one branch of county government sued other friendly officials to invalidate voter-approved property tax limitations in the county charter.
  

• The recent decision in the U. Hawaii regents case, in which state legislators sued the governor over her use of holdover appointments to the U.H. Board of Regents. See Charley Foster's thinking about this decision for more analysis here.

These type of cases would be assisted by amicus participation, if only to provide the reviewing court with context and a broader view of where the case it is considering may fit in the larger picture. Amicus briefs may also bring to the court's attention critical arguments or precdents not raised by the parties, or scientific, historical, technical, or specialized information that the parties do not have an interest in raising (or the space for in their briefs). The briefs are often authored by attorneys who are familiar with the legal issues, and who may work pro bono or "low bono" due to their interest in the outcome. 

We've represented amicus parties in many cases before the U.S. Supreme Court, the Ninth Circuit, and the Hawaii courts of appeals, including the recent U.S. Supreme court decision in the Navy sonar case, Winter v. Natural Res. Def. Council, No. 07-1239 (Nov. 12, 2008); the "beach accretion" case currently pending in the ICA, Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175; the UFO Chuting case mentioned above; the Supreme Court's regulatory takings case on Hawaii's gas station rent control law, Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005); and the infamous eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005).

Full post as published by inversecondemnation on December 07, 2008 (boomark / email).