November 2001

Amicus Curiae Briefs in Washington

by Greg Overstreet

The Loch Ness Monster

As a Washington attorney you probably know that "amicus curiae" is Latin for "friend of the court." You also know that an amicus brief is a pleading filed by a nonparty to aid a court in an important, precedent-setting decision. Other than that, an amicus brief is like the Loch Ness monster — you’ve heard of it, but probably have never really seen one.

This article aims to change that by familiarizing you with these increasingly common pleadings, and revealing the diverse set of Washington attorneys who are now supporting their clients — and their causes — with these briefs.

This article has three parts. The first analyzes the role of amicus briefs. The second part presents the "strange bedfellows" illustration and analyzes how amicus briefs perform the important function of allowing citizens to ethically communicate with their elected judges. The third part describes the nuts and bolts of Washington amicus curiae briefs.

Amicus briefs have evolved over time. They began under Roman law and became fully enmeshed into English common law.1 Back then, legal scholars or scientific experts on a topic wrote amicus briefs, informing the court about a unique or unusually difficult legal topic. They were usually objective and not intended to support one party; an amicus was truly a "friend of the court," not of one party.2 Today this is still half true. Amicus briefs are generally written by legal experts (or people who think they are) and are intended to inform the court about a complicated area of law and the ramifications of its ruling. However, in contrast to the old days, modern amicus briefs almost always advocate for a particular policy outcome. "No longer a mere friend of the court, the amicus has become a lobbyist, an advocate, and most recently, the vindicator of the politically powerless."3 

Just because modern amicus briefs advocate for a particular policy outcome does not mean that amici have completely abandoned their traditional role. It is still true that the "function of an amicus curiae is to call the court’s attention to law or facts or circumstances in a matter before it that may otherwise escape its consideration."4 The only thing that has changed is that amicus briefs now almost always advocate for changing (or preserving) the law to carry out the amicus’s public-policy objectives.

While it is perfectly appropriate for an amicus brief to advocate for a particular public-policy objective, the amicus must never forget to provide an insightful and accurate legal analysis to the court. As further described, this article argues that an amicus, in exchange for the rather extraordinary privilege of participating in someone else’s case and getting a chance to affect the law, has a special duty to provide cogent and helpful legal briefing that truly assists the court. Amicus briefs failing to do so are a waste of judges’ valuable time. "The courts welcome rational briefing by an informed person or group, but may reject a shrill or exaggerated brief that generates more heat than light."5 

The number of amicus briefs has sharply increased in the past few decades.6 In the Washington State Supreme Court, a survey of the number of amicus briefs from 1960 to 2000 shows a sharp and steady increase: in 1960, 6.5 percent of published opinions list an amicus; by 2000, the figure was 27 percent.7 The increase in the use of amicus briefs mirrors the swell of the policy questions presented to the courts beginning in the 1960s. With courts increasingly deciding the laws that govern almost every aspect of our lives, amici increasingly want to shape those decisions. Those seeking to affect public policy go where the action is — the courts. The amicus brief is how they get there.

The following example of how public-policy groups use amicus briefs is illustrative — and very interesting. What issue brings together the ACLU and the Building Industry Association of Washington? What could unite the media and a "conservative" think-tank like the Evergreen Freedom Foundation? These diverse groups (and the Washington Association of Realtors and Washington State Farm Bureau) recently filed a joint amicus brief.8  This brief, dubbed the "strange bedfellows" amicus, illustrates how modern amicus briefs work in Washington — and why they are a good thing. But before describing more about the "strange bedfellows" amicus brief, some background on an elected judiciary is necessary to put the matter in context.

In Washington, judges are elected. However, judges are not regular elected officials; the Code of Judicial Conduct prevents judges from campaigning like, well, politicians. Under the code, judges cannot have ex parte contacts with litigants, and generally cannot publicly state their positions on policy issues that will likely come before their court. Because they feel they should not converse about many important issues, judges report feeling somewhat isolated from the rest of the legal and public-policy world.9 

Amicus briefs are the perfect method for judges to ethically hear from the people they serve (or at least from the groups representing them). Amicus briefs are an ethical method of communicating because they are the exact opposite of the kind of contact prohibited by the Code of Judicial Conduct, such as one party lobbying a judge over cocktails. Amicus briefs are written legal arguments, supported by citation to authority, which can be answered by the parties — exactly how judges should decide cases.

Unlike legislative bodies, where lobbying through personal visits and other communications is appropriate, direct communications with members of [a] court in an effort to influence the outcome of litigation is inappropriate. However, the long tradition of accepting [amicus briefs by courts] is an honorable one, used by organizations on both sides of controversial debates to present cogently their views or additional facts which may be important for consideration of the case.10 

An important function of amicus briefs is to show a court who cares about an issue, which is where we return to the "strange bedfellows" amicus brief. Suppose you are a judge looking at an issue such as whether the Public Records Act allows a person suing a government agency to simultaneously obtain information from a records request instead of exclusively from formal discovery in the underlying case.11 

Through an amicus brief, the Washington State Supreme Court learned that the amazingly diverse groups forming the "strange bedfellows" coalition all relied on these during-litigation, public-records requests to obtain important information. In its amicus brief, the coalition spelled out exactly how preserving during-litigation, public-records requests were pivotal in, among other things, reversing a death-penalty sentence and exposing the largest violation of campaign-reporting laws on record. Without amicus briefs, none of this information could have been presented to the Court. The Court probably appreciated hearing from a diverse cross-section of those they serve and valued a cogent description of exactly how the case would affect the day-to-day activities of many citizens.

Another positive aspect of amicus briefs is that they can be used as a powerful pro bono tool. Attorneys often find it difficult to undertake an entire pro bono case from pretrial to appeal; however, an amicus brief is much less time-consuming than a complete case — and may well achieve the same positive result.

For example, in a case I worked on I wanted to help a small-business person who was the only person in a city ever charged with the crime of installing a water heater without a permit, even though hundreds of others had installed them without permits. Even after belatedly obtaining the permit, the small-business person was charged (by a special prosecutor, no less) after he wrote a letter to the editor criticizing the city for its never-before-enforced permit requirement. Unfortunately, I could not devote the time to take on the entire case, and it was pending in a court at the opposite end of the state.

An amicus brief saved the day. I was able to spend a day or two, and brief the issue of procedural equal protection, the obscure doctrine protecting a person who exercises a First Amendment right by criticizing a law and then is the only person charged with violating it. The small-business person could not have afforded the cost of this briefing, which would have greatly exceeded the amount of the probable fine he was facing. The water-heater defendant was acquitted based on the amicus brief. Without the ability to file the brief, a pro bono opportunity to protect constitutional rights would have been lost.

While the water-heater amicus was filed in a municipal court, filing amicus briefs in precedent-setting appellate courts provides another pro bono benefit. An amicus brief on an important issue can help permanently change (or preserve) the law that applies to all of us, thereby benefiting thousands in the pro bono client’s position, not just the single pro bono client. Because they help create precedent that goes for on years, amicus briefs give a tremendous bang for the pro bono buck.

We turn now from the theory of amicus briefs to practical information on how to file one.12 In Washington, the Rules of Appellate Procedure govern amicus briefs, at least in the Court of Appeals and Supreme Court (more on that later). The most important requirement for an amicus brief in Washington is that it "would assist the appellate court."13 Before filing an amicus brief, the amicus "must review the pleadings on file and avoid repetition of matters in other briefs."14 This is crucial; judges despise amicus briefs that merely repeat the arguments made by the parties or other amici.

An amicus need not have standing as a party.15 An amicus brief must address the issues raised by the parties, although on very rare occasions a court will address an important issue raised only by an amicus.16 A potential amicus must file a motion requesting leave to file an amicus brief.17 Most amici simultaneously file their motion for leave with the amicus brief.18 The court and the parties must receive the amicus brief not less than 30 days before the date set for oral argument.19 Timely amicus briefs are almost always accepted by the courts.

The parties have the right to answer the amicus brief.20 An amicus has no right to oral argument, but can request the party to yield some of its argument time. Or, in cases in which the amicus has a great deal to say or its argument does not squarely support one of the parties, an amicus can move for argument time of its own. 21 An amicus, like a party, may file a statement of additional authorities.22 An amicus is not entitled to court-awarded attorney’s fees.23 

The Rules of Appellate Procedure (RAP) governing amicus briefs only apply to the state Supreme Court and Court of Appeals.24 What about filing an amicus brief in a superior, district or municipal court or an administrative tribunal? No court rule or regulation governs amicus briefs in Washington trial courts and agencies, but these bodies seem to routinely allow them.25 In my experience, every superior court, municipal court and administrative tribunal has accepted an amicus brief presented to it. The implied basis for a lower court to allow amicus briefs is the tribunal’s inherent power to conduct its affairs. Since no rules govern lower-court amicus briefs, these courts and agencies should look to the RAPs for guidance on deadlines, content and other requirements.

A somewhat controversial provision of Washington’s Rules of Appellate Procedure requires an amicus to cite to the record to support its factual contentions.26 The requirement is controversial because many think an amicus should have the almost unlimited leeway to describe the broader public-policy picture confronting the court. Many other courts, including the U.S. Supreme Court, allow an amicus to attach almost any kind of information to its brief.27 Although no court rule directly addresses it, an amicus brief in a Washington court could attach information admissible under the doctrine of judicial notice.28 

Washington’s requirement that an amicus cite to the record is not as restrictive as it sounds. Most public-policy arguments can be made without adding facts to the case — after all, if the public policy implicated by the case is so broad, it should not depend on the specific facts of the case at hand. Furthermore, as a practical matter, an amicus has very broad latitude to assert matters not always in the record. If an amicus abuses this latitude by attaching factual materials outside the record, the judge reading it is perfectly free to disregard the information. And the party on the other side is free to move to strike it.29

Unlike the Loch Ness Monster, amicus briefs have evolved. Now they are a powerful tool for those — on both sides of an important public-policy issue — who seek to affect the law. Amicus briefs help courts understand a complicated issue and, by describing the ramifications of the case on everyday citizens, broaden the scope of the court’s analysis.

NOTES

1. Michael K. Lowman, Comment, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 Am. U. L. Rev. 1243, 1243-44, nn. 4 & 5, and 1247-56 (1992).

2. Id., at 1244, n.5.

3. Id., at 1245 (footnotes omitted).

4. 4 Am. Jur. 2d, Amicus Curiae § 6 (citations omitted).

5. Mark H. Adams, "Amicus Curiae on Appeal," 41 Washington State Bar News 7 (July 1987), at 34 [hereinafter "Adams"].

6. See generally Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743 (2000) (describing increasing use of amicus briefs in the U.S. Supreme Court).

7. The following figures show the steady increases — 1960: 6.5 percent; 1970: 7.7 percent; 1980: 16 percent; 1990: 22 percent; 2000: 27 percent.

8. The author of this article was the primary author of the "strange bedfellows" amicus brief.

9. See e.g., Charles H. Sheldon, A Century of Judging: A Political History of the Washington Supreme Court (1989) (describing many judges’ feelings of isolation from outside the legal community).

10. Kathryn Kolbert, The Webster Amicus Curiae Briefs: Perspectives on the Abortion Controversy and the Role of the Supreme Court, 15 Am. J. L. & Med. 153, 155 (1989).

11. The case was O’Connor v. DSHS, 143 Wn.2d 895, 25 P.3d 426 (2001).

12. For a general book on amicus briefs, see Reagan W. Simpson, The Amicus Brief: How to Write It and Use It Effectively (1998). See also Adams, supra, note 5.

13. RAP 10.6(a).

14. RAP 10.3(e).

15. "A person may be granted leave to appear as Amicus Curiae where he or she has no right to intervene and participate as a formal party in the suit." 4 Am. Jur. 2d, Amicus Curiae § 5 (citations omitted). Even when an amicus has standing to intervene as a party, amicus status is often the preferred method of presenting the amicus’s concerns to the court. See id. One of the advantages of being a mere amicus is that the judgment in the case does not bind an amicus, whereas a judgment would bind a party who intervened.

16. Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 272, n.1, 943 P.2d 1278 (1997).

17. RAP 10.1(e) & 10.6. The required components of an amicus brief are laid out in RAP 10.3(e). Interestingly, an appellate court can request a person to file an amicus brief if it thinks it needs additional information. RAP 10.6(c). This is extremely rare. It probably reflects the old role of an amicus: a scholar opining on a complicated issue to aid the court, not one of the parties.

18. Since almost all motions and briefs are filed simultaneously, the following analysis of briefs includes the motions accompanying them.

19. RAP 10.2(f). What if there is no oral argument? An appellate court can dispense with oral argument. RAP 11.6. The Supreme Court almost never does so, while the Court of Appeals will do so only rarely, in the most clear-cut cases. It is unclear when an amicus brief is due if a court dispenses with oral argument. However, even when it declines to hear oral argument, an appellate court will inform the parties of the date the panel will consider the case; this would probably be a substitute date for oral argument and therefore should govern the due date of the amicus brief.

20. RAP 10.1(e). The time to answer an amicus brief is extremely short: five days after receipt of the brief. RAP 10.6(d). In addition to answering the amicus brief, a party can object to the filing of an amicus brief. Id.

21. RAP 11.2(b). The party supported by the amicus will often agree to yield some of its time. Oral argument by an amicus is uncommon but not unheard of, at least in the Supreme Court.

22. RAP 10.8. A statement of additional authorities is a notification to the court, in between the briefing deadline and the decision, that a new case or statute affects the outcome of the case.

23. 4 Am. Jur. 2d, Amicus Curiae §11 (citations omitted).

24. RAP 1.1(a).

25. No local rules for superior, district or municipal courts addresses amicus briefs. However, at least one administrative tribunal, the Growth Management Hearings Board, explicitly allows amicus briefs. WAC 242-02-280 (2001).

26. RAP 10.3(e) (incorporating by reference RAP 10.3(a), which requires citation to the record).

27. See U.S. Supreme Ct. R. 37. See generally Moore’s Federal Practice, ch. 537 (discussing U.S. Supreme Ct. R. 37); id., ch. 329 (discussing Fed. R. App. P. 29).

28. ER 201(governing "adjudicative facts"). Even without ER 201, a court can take judicial notice of "legislative" facts. For a discussion of "adjudicative" and "legislative" facts, see Karl B. Tegland, Courtroom Handbook of Washington Evidence, at 191-93 (2001). See State v. CPC Fairfax Hospital, 129 Wn.2d 439, 453-54, 918 P.2d 497 (1996) (rejecting motion to strike appendices to amicus brief because they contained "legislative facts"). See generally Wyman v. Wyman, 94 Wn.2d 99, 102-03, 615 P.2d 452 (1980) (describing judicial notice of legislative facts); State v. Balzer, 91 Wn. App. 44, 58, 954 P.2d 931 (1998) (same); Tegland, 5 Washington Practice § 201.17 (4th Ed. 1999) (same).

29. RAP 10.6(d).

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