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Supreme Court Amends Appellate Rules Governing Amicus Briefs, Secure Leave, and Oral Argument

On Friday, the Supreme Court of North Carolina amended Rules 28, 29, and 33.1 of the North Carolina Rules of Appellate Procedure.  While the most significant changes involve amicus curiae briefs, the Supreme Court also took a baby step into the world of mandatory appellate e-filing.  A summary of the changes—including my initial thoughts on different features of and questions that could arise under the amendments—follows.

Amicus Briefs

Amicus curiae briefs can only be filed with the permission of the appellate court. N.C. R. App. P. 28(i).  Last week’s amendments do not change this requirement.

In recent years, however, the Supreme Court has become concerned that parties or their counsel may be funding or ghost-writing amicus briefs.  Last week’s amendments to Appellate Rule 28(i) are designed to assist the appellate courts in determining (1) whether to grant a motion for leave to file an amicus brief, and (2) the weight that should be given to an amicus brief.  The amendments also clarify the time within which responses to amicus briefs must be filed.

Key changes include:

  • The motion for permission to file an amicus brief must be accompanied by the proposed amicus brief.  N.C. R. App. P. 28(i)(2).  Under the prior rule, a proposed amicus brief could (but was not required to) be conditionally filed with the motion.
  • The first page of the amicus brief must contain a footnote identifying “any person or entity—other than amicus curiae, its members, or its counsel—who, directly or indirectly, either wrote the brief or contributed money for its preparation.”  N.C. R. App. P. 28(i)(2)
  • Amicus motions filed by an individual on his or her own behalf are disfavored. N.C. R. App. P. 28(i)(5).
  • Responsive briefs must be filed “no later than thirty days after” a party is “served with an amicus curiae brief.”  N.C. R. App. P. 28(i)(6).
  • Amended Rule 28(i) no longer specifically contemplates that an appellate court may on its own initiative request input from an amicus curiae.

These changes to Appellate Rule 28(i) raise a few questions:

When a brief is prepared solely by the amicus curiae, its members, or its counsel, is the Appellate Rule 28(i)(2) disclosure footnote required? The amended rule could be interpreted to require the amicus disclosure footnote only when a person or entity “other than amicus curiae, its members, or its counsel” wrote the brief or contributed money for its preparation.

I can discern no good reason why an attorney would want to omit the disclosure footnote.  Including the footnote demonstrates that the amicus is aware of the new requirement and has not intentionally or unintentionally omitted it.   It also affirmatively communicates  to the appellate court that the issues in the appeal are sufficiently important for the amicus to fund an amicus brief.

What qualifies as “indirectly” writing an amicus brief or “indirectly” providing monetary contributions for an amicus brief? The purpose of an amicus brief is to supplement—not duplicate—the arguments being made by the parties.  Sharing a draft amicus brief with a party before filing is not unusual.  However, when does collaboration cross into the territory of “indirectly” writing an amicus brief?  Do the amendments require an amicus to disclose if a party has provided minor edits, editorial comments, or major edits to a draft amicus brief?  Is disclosure required when an amicus brief is prepared only after review of a party’s principal brief? What if the amicus and party come to an agreement regarding the content of or strategy for the amicus brief?

Similarly, what is an indirect monetary contribution?  Annual donations to the ACLU?  Christmas donations to the Salvation Army bell-ringers if the Salvation Army files an amicus brief?

May a party or its counsel escape the disclosure requirement by becoming a member of the amicus organization? The disclosure footnote is required if “any person or entity—other than amicus curiae, its members, or its counsel” directly or indirectly writes the brief or contributes money for its preparation.  N.C. R. App. P. 28(i)(2) (emphasis added).

Attorneys and parties are often dues-paying members of various organizations. Requiring disclosure of the amicus’ general membership roster would not be particularly helpful.

However, does the exception permit a party or its attorney to skirt the disclosure requirement by becoming a member of the organization filing an amicus brief? For example, may a party that is a member of the North Carolina Chamber of Commerce or ACLU earmark money to the organization for the preparation of an amicus brief?  Can a member of the North Carolina Association of Defense Attorneys or North Carolina Advocates for Justice that is also counsel for a party prepare an amicus brief on behalf of the organization without disclosing his or her involvement?

Anyone else hearing Jiminy Cricket singing, “give a little whistle” and “always let your conscience be your guide”?

Are motions for leave to file amicus briefs at the petition stage allowed or prohibited?  Not directly addressed by either the prior or amended rule is whether a party can file an amicus motion and brief during the appellate courts’ consideration of whether to grant a party’s petition for discretionary review or rehearing.

Even under the prior version of Appellate Rule 28(i), a motion to file an amicus brief during the merits stage of an appeal almost always attached the proposed amicus brief.  A different practice, however, was historically followed during the petition stage.  Amici desiring to weigh in on a petition for discretionary review in the Supreme Court would file an Appellate Rule 28(i) motion seeking permission to file an amicus brief if the petition was granted, but would usually not attach a conditional amicus brief to the motion.

Practitioners utilized this approach because the Supreme Court traditionally has disfavored/denied Rule 28(i) motions seeking permission to file an amicus brief during the petition stage.  The Supreme Court, however, has been more receptive to Rule 28(i) amicus motions merely signaling an amicus’ interest in filing an amicus brief if the Supreme Court grants a pending PDR—as long as no proposed amicus brief was attached to the motion.  Typically, the Supreme Court would defer a ruling on the motion for leave to file an amicus brief until the PDR was decided. If the PDR was granted, the Supreme Court would allow the motion and direct the amicus to file a brief.  If the PDR was denied, the Supreme Court would deny the motion as moot.

The amended rule, however, no longer permits a Rule 28(i) motion to be filed without the proposed amicus brief.  Moreover, a party’s response to the amicus brief is due 30 days after the proposed brief is served—not 30 days after the appellate court issues an order accepting the amicus brief for filing.  Under amended Rule 28(i), if an amicus motion and proposed brief were filed during the petition stage, a responsive brief likely would be due long before the Supreme Court decided to grant discretionary review.

Do these changes to Appellate Rule 28(i) mean that the Supreme Court will now consider amicus briefs filed at the PDR stage? Or do these changes mean that the Supreme Court will summarily deny motions for leave to file amicus briefs at the petition stage?  Arguments can be made in favor of either interpretation.  Until then, we will monitor how these changes play out in practice. (Psst! If you hear of any developments in this area, let me know).

May a party file a consolidated response to a principal brief and amicus brief? The amended rule provides much-needed guidance as to when a response to an amicus brief must be filed.  The prior rules were completely silent on this issue, with the appellate clerks recommending that briefs responding to an amicus brief be filed at the same time the responding party’s principal or reply brief was due.  Under this prior approach, appellees typically received 30 days to respond to the appellant’s principal brief and any supporting amicus brief, while appellants only received 14 days to reply to both briefs.  This interpretation also produced mischief when a party filed its brief before its deadline, but the supporting amicus brief was not filed until the party’s original briefing deadline.

The amended rule rectifies these inequities and ambiguities by giving a party 30 days to respond to an amicus brief regardless of whether the party is the appellee or appellant.

What about an appellant that wants to file a single brief addressing both the amicus and the appellee’s brief?  Because the briefing deadlines would be different under the amended rule, any consolidated response would need to be filed on the earlier of the two briefing deadlines.  I imagine, however, that the appellate courts would be receptive to a motion to extend a briefing deadline to allow a party to consolidate its response into a single appellate brief.

What if someone recently filed an amicus motion or brief without the required disclosure footnote or proposed amicus brief? Sometimes Appellate Rules amendments apply to appeals filed on or after a certain date.  That is not the case with these amendments.  The amendments are effective immediately (i.e., Thursday, March 1, 2018—the day before the amendments were published).

If a non-compliant amicus motion or brief was filed before the amicus became aware of the rule changes, move to amend!

Mandatory E-filing for Secure Leave

Since 2000, the appellate courts have permitted parties to designate up to three weeks of secure leave.  N.C. R. App. P. 33.1.  For cases in which an attorney is counsel of record, the appellate courts will not schedule oral argument during the secure-leave period. Until last Thursday, periods of secure leave could be designated by either mailing a letter to clerk of the appellate court or by filing an online designation for secure leave.

The letter-based notification system was time-consuming and inefficient for the clerks of the appellate court to process.  Therefore, amended Rule 33.1 requires attorneys to use the appellate court’s electronic filing website to designate secure-leave periods.  In other words, paper designations will no longer be accepted.

If you already have e-filing privileges, designating secure leave online is simple.  Appeals docketed after the online designation are automatically linked to counsel’s designated secure-leave period.

If you do not have e-filing privileges, this change likely signals a gradual transition into mandatory e-filing for state court appeals.  So before wading into beautiful Tahitian waters, e-filing novices should take this first step in utilizing appellate e-filing privileges.

Oral Argument Notice

Appellate Rule 29(b) now provides that oral argument notifications may be provided by either e-mail or mail. The appellate clerks have been e-mailing oral argument notices from some time.  This amendment merely brings the rule and actual practice into harmony.

E-mail notifications can be overlooked, accidentally deleted, or blocked by a spam filter.  However, an attorney can use the e-filing website to link additional e-mail addresses to the attorney’s name (e.g., a paralegal or an attorney’s personal e-mail address).   I have confirmed that oral argument notices are now being automatically copied to those additional e-mail addresses.  So before wading into beautiful Tahitian waters, e-filing novices should take this second step into appellate e-filing privileges.

Supreme Court Oral Argument Dates

Appellate Rule 29(a)(1) previously stated that oral argument before the Supreme Court would be held “during the months of February through May and September through December” “unless otherwise scheduled by the Court” or unless additional settings were “authorized by the Chief Justice.”  In the past few years, the Supreme Court has not only heard oral argument in January and June, but also cancelled arguments in November and December. In other words, the old rule was no longer reflecting actual practice.

Therefore, Appellate Rule 29(a)(1) has been amended to provide that “[a]ppeals will be heard in accordance with a schedule promulgated by the Chief Justice.” Does this mean the Supreme Court will be hearing oral argument more often in the summer?  Before wading into those beautiful Tahitian waters in June, maybe file an online request for secure leave.

I am eager for different perspectives on these new amendments and, in particular, the changes to the amicus rule!  Let me know your thoughts in the comments below.

–Beth Scherer

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2 Responses to "Supreme Court Amends Appellate Rules Governing Amicus Briefs, Secure Leave, and Oral Argument"

  • Stephen Feldman
    March 6, 2018 - 4:10 pm Reply

    Beth, thank you for this terrific summary and analysis.

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