September 5, 2017

By: Dennis Whitaker

When groups or associations contemplate advancing their policy or legal goals they default to lobbying elected officials in the legislative and executive branches and often neglect the opportunities available to influence law and policy through the third branch of government, the judiciary. Most organizations cannot, and more than likely do not care to be a party in every matter in which their interests may be impacted. However, filing an amicus brief has proven to be an effective method in advising and influencing courts and often can involve far fewer resources than traditional lobbying.

Amicus curiae literally means friend of the court. A group or association with a strong interest or perspective on a particular subject at issue in a matter before a court may file a brief on behalf of (sometimes nominally) a party which serves to suggest to the court a rationale or resolution consistent with the group or association’s interest. Indeed, government often is asked by the courts to weigh in on matters of broad public interest. Private entities should be no less interested in providing advice and guidance in such matters.

Courts frequently recognize and cite amicus briefs in their opinions. See, e.g. Commonwealth v. Roebuck, 32 A.3d 613, 648 n.6 (Pa. 2011) (“Also aiding our review, amicus briefs have been submitted by Pennsylvania Association of Criminal Defense Lawyers and Public Defender Association of Pennsylvania, as well as the Allegheny County Law Office of the Public Defender.”); Allstate Life Insurance Co. v. Commonwealth, 992 A.2d 910, 917 n.7 (Pa. Cmwlth. 2010)(“The Insurance Federation of Pennsylvania . . . filed a brief as amicus curiae . . . [t]he Federation’s amicus brief is well organized and helpful in understanding [the] arguments on appeal.”); In re Harmar Coal Co., 548 A.2d 1224, 1228 n.3 (Pa. Super 1988)(“Amicus Curiae is the . . . Department of Environmental Resources, whose brief we found very informative and helpful in reaching our decision.”); Commonwealth v. Sojourner, 408 A.2d 1108, 1117 n.37 (Pa. Super 1979)(“In concluding our treatment of this issue we would be remiss if we did not thank the Attorney General, as well as the District Attorney of Allegheny County and the Pennsylvania District Attorneys Association for their excellent and most helpful amicus briefs.”).

In Pennsylvania, no special permission is needed to file an amicus brief in an appeal.  During the time when the parties to the case are submitting their briefs on the merits to the appellate court, the amicus need only file its brief on the same day that the party whose position it is supporting is required to file its brief.  Importantly, an amicus curiae does not need to support the position of any party in its brief; if it does not support the position of any party, it files its brief on the same day the first brief is filed by the appellant.

The rule governing amicus practice was recently liberalized to allow an amicus to file a brief in support of or against a petition for allowance of appeal as a matter of right, but only if the amicus participated as an amicus in the Commonwealth Court or the Superior Court proceeding as to which the petition for allowance of appeal seeks review.  Given that the Supreme Court of Pennsylvania grants allocatur in only a very small percentage of cases, this opportunity to participate as a matter of right in the allocatur process as an amicus is a significant benefit and counsels in favor of participating as an amicus when the case is being briefed in the Commonwealth Court or the Superior Court.

An amicus brief need not contain certain of the elements required of the briefs filed by parties to the case, such as the statement of the case, the jurisdictional statement, or the statement of questions.  As a result, the amicus is free to focus in laser-like fashion on the particular legal or policy points it seeks to have the court consider.

The technical requirements for amicus briefs in Pennsylvania’s appellate courts are contained in Pa. R.A.P. 531.  There are no statewide rules governing the filing of amicus briefs before the courts of common pleas. However, an individual judicial district may have such a rule so the local rules should always be consulted before seeking permission to file or filing an amicus brief.

Amicus briefs in federal appellate courts are subject to Fed. R. App. P. 29 which provides that amicus briefs may be filed only with the written consent of all parties or by leave of court upon motion, unless requested by the court. Such leave is not required when the brief is filed by the United States or its officers or agencies.  The federal appellate courts generally are liberal in granting permission to file an amicus brief and, as a consequence, experienced appellate counsel typically encourage their clients to consent to the filing of an amicus brief when requested to do so.

Amicus briefs are an effective means of conveying your group’s or association’s concerns and views to the judiciary. As shown above, a well-presented amicus brief can impact a court’s decision on issues important to your organization.

About the Author:

Dennis A. Whitaker, partner at Hawke, McKeon & Sniscak, LLP, is an experienced litigator with over 25 years of Commonwealth service.  Focusing on government appellate and original jurisdiction practice in state and federal courts, Dennis offers sound advice, creative solutions, and effective strategies to clients navigating the appeals process.