Unhelpful Friends?
Jesse Weisshaar1
With the use of the amicus brief increasing in number and influence in courts across the nation, potential for abuse and misuse also rises. Thus, this author proposes that Missouri follow the federal courts’ lead by amending Missouri’s existing rules governing the submission of amicus briefs to prevent, or at least minimize, the effect of unhelpful friends of the court.
I. Introduction
Today, it is largely accepted that, to the extent that an amicus curiae is involved in litigation, it plays the role of a partisan advocate.2 Although this partisan role represents a dramatic shift from traditional notions of the amicus curiae as an impartial “friend of the court,”3 the shift has not entirely detracted from the purpose that an amicus curiae can and often does serve the court.4 Amicus curiae briefs are important avenues for the participation of third parties whose interest in the outcome of a case may be significant but is technically insufficient to enable them to achieve party or intervenor status.5 As amici, these third parties are in a position to offer unique insight that has the potential to provide additional support, or even to be the very basis for a court’s decision.6
As amicus briefs continue to play an increasingly important role in the American judicial system, however, changes in the current rules regulating the filing of amicus curiae briefs may be necessary. The Supreme Court of Missouri rule that governs the filing of amicus curiae briefs was originally enacted in 19857 and, since then, has remained essentially unchanged.8 Since the amicus was formally introduced into Missouri courts, however, amicus curiae have begun participating in a slowly increasing percentage of Supreme Court of Missouri cases.9 Similarly, amicus curiae have had an increasing presence in litigation appearing before the United States Supreme Court.10 Federal court rules, however, have been significantly amended as recently as 1997,11 and are arguably better suited to deal with the increased filing of amicus curiae briefs and the potential for increased abuses that come with it.12
Indeed, the Supreme Court of Missouri would benefit from revisiting its current rule and modifying it based on the models provided by the nation’s federal courts. This article concludes with two proposed changes to Missouri Supreme Court Rule 84.05(f), both of which borrow from the federal rules. Before one can even begin to understand why revision of the current rule is prudent, however, one must have a broader understanding of the evolution of amicus briefs over time and the current use of amicus briefs in the federal courts and the Supreme Court of Missouri.
II. The History of Amici: The Shift from Neutrality to Advocacy
Amicus curiae, or “friend of the court,” briefs have been part of American jurisprudence since the early part of the 20th century.
13 Like most of American law, however, the concept of the amicus curiae brief was borrowed from English law,
14 which, in turn, imported the concept from the Romans.
15 In the Roman legal system and under English common law, amici were uninterested bystanders who “provided information, at the court’s discretion, in areas of law in which the courts had no expertise or information.”
16
This historical concept of the amicus as a “detached servant of the court”17 eroded over time as courts came to rely on the flexibility of the amicus curiae to address shortfalls of judicial procedure.18 English common law courts took the first step in dealing with its fundamental procedural concept that “parties to a controversy shall have the right to litigate . . . free from the interference of strangers.”19 As a result of this rule, third parties who had interest in a case had no means to be heard.20 Recognizing that strict adherence to the procedural principle might, in some circumstances, sweep too broadly, courts allowed amici to point out fraudulent or collusive cases.21 Thus, although English courts continued to consider the amicus a neutral advisor, this represented an early move from “neutral friendship” to advocacy and partisanship.22
Courts in the United States were somewhat slow to adopt the concept of amicus curiae.23 Once amici were introduced, however, the unique aspects of America’s judicial system fueled the shift toward advocacy begun under English common law. As one scholar explained:
The creation of a complex federal system meant not only that state and national interests were potentially in conflict, but also that an even greater number of conflicting public interests were potentially unrepresented in the course of private suits.24
Additionally, the American “legal doctrines and constitutional requirements” of standing and diversity further “limited the opportunity for interested third parties to be heard in federal court.”25
Perhaps a reflection of this exacerbation, the very first American case with the formal appearance of an amicus curiae involved the amicus to such an extent that any detachment from the case was a mere fiction. In 1821, Henry Clay successfully sought a rehearing and argued the case as amicus curiae in Green v. Biddle.26 Such involvement suggests that American courts adopted the concept of amicus curiae absent the heretofore twin concept of neutrality.
In the early years of the use of amicus curiae in American jurisprudence, the status of amicus was almost exclusively granted to federal government. But during the 1880s, courts began to grant leave to state governments to appear as amicus in vindication of state rights.27 Soon thereafter, courts expanded the grant of amicus curiae to private litigants of similar cases pending before the lower courts,28 and, by the 1930s, to organizations with an interest in the case.29 Although prior to the introduction of private organizations as amici, “amicus briefs were usually named for the attorneys who prepared them, in the 1930s, they became known for their sponsoring organizations.”30 Private parties serving as amici and the change in authorship recognition represent the culmination of the shift; at that point, the amicus was “no longer a neutral, amorphous embodiment of justice, but an active participant in the interest group struggle.”31
III. Amicus Briefs in Courts
Just as amicus curiae briefs have undergone a change from the historically neutral friend of the court to the partisan advocate, so too has the frequency of use of amicus curiae briefs changed over time.
A. Amicus Activity in Federal Courts
Although research indicates substantial amicus participation at every level of the federal court system,32 the majority of empirical studies focus on the United States Supreme Court. As the highest court in the country, the United States Supreme Court has seen increasing amicus activity over the years:
Throughout the first century of the Court’s existence, amicus briefs were rare. Even during the initial decades of [the twentieth] century, such briefs were filed only in about 10% of the Court’s cases. . . . In recent years, one or more amicus briefs have been filed in 85% of the Court’s argued cases.33
In fact, the most recent comprehensive empirical study of Supreme Court merits decisions yielded results that indicate a dramatic rise in amicus curiae briefs in the Court during the post-World War II era.34 For example, while the Court received 531 amicus briefs in the 1946-1955 decade, by the 1986-1995 decade the number had increased by more than 800%, with 4,907 amicus briefs filed.35 Additionally, the number of amicus briefs filed per argued case has also undergone a significant increase in later years.36 “[W]hen expressed in terms of the cases in which one or more amicus briefs were filed, the mean number of amicus briefs per case has” gone from 2.12 in the decade between 1946-1955 to 5.00 in the decade between 1986-1995.37
Not only are the numbers of briefs being filed increasing, but the types of legal disputes in which amicus briefs are regularly appearing are growing.38 Whereas from 1970-1980 areas such as labor-management disputes had a higher degree of participation of amici than areas such as criminal procedure, “[v]irtually no type of legal dispute is now beyond the reach (or, apparently, interest) of amici curiae.”39
Likely even more telling than the numbers of amicus briefs filed, and the areas in which they are filed, is the increasingly significant number of Court opinions that reference amici. During the 50 years from 1946 to 1995, a total of 936 decisions, or “28% of all decisions in which one or more amicus [filed] briefs,” included at least one reference to amicus briefs.40 More specifically, when taken a decade at a time, the number of references to amicus briefs has increased over time, with nearly 18% between 1946 and 1955 compared to just under 37% between 1986 and 1995.41 Additionally, the incidents in which the Court actually quoted amici arguments, a total of 316 times in the 50-year period, was 15% in the 1946-1995 decade, “which is more than double the rate of the first three decades and almost double the rate of the fourth.”42 This trend has apparently continued in more recent years: a study of the Rehnquist Court indicates that in 2002 and 2003, the Court’s opinions referenced at least one amicus in 40% of the cases in which at least one amicus participated.43
B. Supreme Court of Missouri Amicus Activity
More than 50 years after Green v. Biddle,44 the Supreme Court of Missouri followed in the footsteps of its federal counterpart, allowing formal participation of amicus in Barr v. Armstrong.45 Unfortunately, unlike the post-Green United States Supreme Court, the post-Barr Supreme Court of Missouri has not been the subject of a single published empirical study.
Despite the lack of similar studies of Missouri courts, a glimpse at amicus participation in the Supreme Court of Missouri’s published opinions and recent docket indicate that amicus curiae participation, while perhaps not as extensive as that in the United States Supreme Court, is at least commonplace.46 Chart 1, below, plots the number of cases in which at least one amicus brief was filed in Supreme Court of Missouri cases with published opinions, beginning with Barr in 1874 and ending in 2005.47 As is apparent in the chart, although undergoing spikes and rapid declines in numbers between various years, amicus participation in the Supreme Court of Missouri since around 1914 has been relatively routine.48
Chart 2, which plots the total number of Supreme Court of Missouri cases with at least one amicus brief during the decades between 1866 and 2005, shows how amicus filings have become more common with time.49
Perhaps most telling, however, are Table 1 and Table 2 (below or available in PDF format). Table 1 compares the total number of Supreme Court of Missouri published opinions during a given period with the number of those opinions in which at least one amicus curiae brief was filed during the same period.50 Table 2 compares the total number of cases before the Supreme Court of Missouri for oral argument in the first nine months of 200651 with the number of those cases in which at least one amicus curiae brief was filed for the same period.52 Compared to the United States Supreme Court, in which recent studies have found that amicus curiae participate in 85% of the cases,53 the Supreme Court of Missouri has drastically less amicus participation.54 As with the United States Supreme Court, however, amicus participation in the Supreme Court of Missouri has increased significantly over the years, going from 1-2% in the first 50 years of the 20th century to hovering around 10-15% in the last 30 years.55 
Thus, while amicus curiae filing in the Supreme Court of Missouri does not reach near the volume of that in the United States Supreme Court, the Missouri Court does generally track the federal Court in the increased use of amicus curiae over the years. And, in any event, the amicus brief is not an entirely infrequent participant in Supreme Court of Missouri litigation.
IV. The Rules
One of the characteristics of amicus curiae participation that has carried over from English common law into American jurisprudence is the flexibility and adaptability of the concept. The English common law system did not impose any boundaries on the use of amicus curiae.56 Indeed, it was “[b]y keeping the contours of the amicus concept nebulous and within the realm of judicial discretion” that early English courts were able to use the amicus curiae to combat the shortcomings of its adversarial legal system.57
Following a similar path, although amicus curiae participation began in United States courts in the early 1820s, not until 1938 did the Supreme Court promulgate formal rules to govern amicus participation.58 Since then the Supreme Court has amended its rule relating to amicus curiae participation several times59 and states have developed similar rules of their own.60 Despite these rules, however, the concept of amicus curiae participation still embodies its historical pedigree of flexibility in that the filing of amicus is still largely left to judicial discretion.61
A. Federal Rules
The filing of amicus briefs in federal courts is governed by either the United States Supreme Court’s current Rule 37 or Federal Rule of Appellate Procedure 29.62 Both rules require amicus to obtain either the consent of both parties or leave from the court before filing a brief.63 Motion for leave to file an amicus curiae brief in the Supreme Court must “indicate the party or parties who have withheld consent and state the nature of the movant’s interest.”64 Similarly, a motion for leave to file in federal appellate courts must state the movant’s interests and “the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.”65 Under both rules, an exception to the requirement of consent or leave to file exists for governmental entities, which, if submitted by an authorized legal representative, can be filed regardless of party consent and without leave from the court.66
United States Supreme Court Rule 37 differs from Federal Rule of Appellate Procedure 29 in two respects. First, Rule 37 states:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.67
This provides the most basic of guidelines establishing what the Court is looking for from amici participation with any given case. As many scholars have noted, the Court is at least looking for more than a “me too” brief.68
Although Federal Rule of Appellate Procedure 29 does not provide a similar guideline, at least some federal circuit judges have applied similar criteria when exercising their judicial discretion in granting leave to file an amicus brief.69 Most notably, Seventh Circuit Chief Judge Richard Posner, who has twice recently issued written explanations for his denial of leave to file amicus briefs, strictly enforces the concept that amicus briefs are to provide unique information.70 Judge Posner opined that the vast majority of amicus curiae briefs that duplicate the arguments made by the litigating parties’ briefs should not be granted leave to file.71 In Judge Posner’s view, amicus briefs should normally be allowed only in three circumstances: (1) when a party is unrepresented or is not represented competently, (2) “when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or [(3)] when the amicus has unique information or perspective” beyond that provided by the parties.72
The second textual difference between Supreme Court Rule 37 and Federal Rule of Appellate Procedure 29 is Rule 37’s requirement that all non-governmental amicus briefs must indicate, in the first footnote on the first page of text, “whether counsel for a party authored the brief in whole or in part and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief.”73 This requirement prevents “ghost writing” as a means to run around brief page limitations and discloses any suspect relationships with the parties or interest in the case that might affect a judge’s view of the usefulness or persuasiveness of the brief.74
B. Missouri Supreme Court Rule 84.05(f)
As at the federal level, different rules govern the Supreme Court and the other appellate courts in the Missouri system.75 This article, however, focuses exclusively on Missouri Supreme Court Rule 84.05(f) governing the filing of amicus curiae briefs.76 Like in the federal system, an amicus curiae brief may be filed in the Supreme Court of Missouri only with the consent of all parties involved in the litigation or by leave of the Court.77 The motion for leave to file an amicus brief must (1) “identify the parties refusing consent, [(2)] concisely state the nature of the applicant’s interest [in filing], and [(3)] set forth facts or questions of law” that the parties did not adequately present “and their relevancy to the disposition of the case.”78
As with the federal rules, under Supreme Court of Missouri rule there is one exception to the general filing requirement for an amicus brief. Consent or leave to file an amicus brief is not necessary when the amicus is “the attorney general or by a state entity authorized by law to appear on its own behalf.”79 This exception does not, however, create a large distinction between governmental and private amici, for, even though non-governmental amici must seek leave to file, “most motions for leave to file are granted” by the Supreme Court of Missouri.80
C. Problems With the Missouri Rule
Although in regard to the eligibility requirements for filing an amicus brief Missouri Supreme Court Rule 84.05(f) is quite similar to the federal rules, the Missouri rule is distinct from the United States Supreme Court rule in the same two ways that Federal Rule of Appellate Procedure 29 differs from the rule of the higher court. Missouri’s rule has neither any disclosure requirements nor any guidelines detailing what the Court is seeking from amici. And unlike at least some of the federal circuit courts, neither does Missouri have any unwritten rules or procedures that fill the gap left by either of these voids.81 The lack of these two components may not have caused any problems in regard to amicus participation in the Court in the past. Given the increased use of amicus briefs in recent years and the largely unchecked partisan role these briefs play, however, preventative modification of the Missouri rule to include these missing pieces could avert problems that have the potential to arise in the future.
1. Disclosures
Once the Court has granted leave to an amicus to file a brief, Missouri Supreme Court Rule 84.05(f) does not impose any unique requirements on an amicus. Unlike in the United States Supreme Court, amicus are not required to disclose anything about who was involved in or contributed to the creation of the brief or to disclose any specific interests the amicus has in the case. Missouri’s imposition of a disclosure requirement such as that of the United States Supreme Court would serve two purposes. First, disclosures would close or at least narrow existing ethical loopholes that stand to undermine the integrity of the amicus curiae. Second, disclosures would aid already overburdened judges in providing an easily accessible measure of the utility of each and every amicus brief that comes across their desks.
As the Missouri rule currently stands, amicus briefs are subject to “creative use” that can cause misunderstandings or mislead the Court.82 Parties to litigation can create or engage in the joint creation of briefs that will ultimately be signed by amici and presented to the Court as amicus briefs.83 Absent a judge directly asking the party about the extent of its participation in the amicus briefs filed in the case, the Court would never know of the collusion between the amicus and the party. Thus, the amicus presents the brief as if it expresses the views of a group of individuals with some tangential interest in the litigation when, in reality, the brief is the party’s second effort at persuading the Court to rule in its favor. This ghost-writing approach is misrepresentative of the amicus’s role as the voice of a broader entity of people who stand to be affected by the litigation. Although it is generally accepted that amicus do not stand on neutral ground, they are thought to provide voice to a third party, not to amplify the voice of an existing party. Additionally, such a tactic serves as a means for parties to avoid compliance with the page limitations the Supreme Court of Missouri imposes on briefs of the appellant and respondent.84 Such use of amicus participation by a party is unscrupulous and may even be a violation of the Missouri Supreme Court Rules. Without a disclosure requirement, however, any such unethical use of amicus briefs will remain undetected.
As the Missouri Supreme Court Rule currently stands, not only does the Court not know who wrote or helped write an amicus brief, the Court is also in the dark about the exact interest an amicus has in the outcome of the case. While Missouri Supreme Court Rule 84.05(f)(3) requires that an amicus “concisely state the nature of the applicant’s interest” when seeking leave to file a brief,85 without more specific requirements two types of interests could be masked by a recitation about serving a nebulous greater good or hidden by a desire to appear more impartial and, the thought is, more persuasive.
The first type of interest that should be expressly disclosed is if an amicus has an interest in the case because it is involved in a factually and/or legally similar case in a different court and the outcome of the present case stands to impact the outcome of the amicus’s own case. While such an amicus is not an impartial participant, it does serve to provide the Court with a better understanding of the broad effect its decision might have. Thus, requiring disclosure of this specific interest might convince a judge to read an amicus brief he might otherwise set aside in the interest of time.
The second disclosure of an amicus’s interest that should be required under the Missouri rule would likely work in the opposite manner, convincing judges not to waste time on a brief they otherwise would have read. The fact that a party made a monetary contribution86 to an organization acting as amicus in order to procure amicus support or suspiciously near in time to the submission of the amicus brief might persuade a judge that, as in the ghost writing situation, the amicus brief is merely another mouthpiece for the party. Requiring disclosure of such information allows a judge to make early assessments about the usefulness of the brief that may not have been possible if such information were suppressed. “In an era of heavy judicial caseloads and public impatience with the delays and expense of litigation,”87 and with amicus briefs being filed in an increasing percentage of cases, such disclosure would be an important aid in the conservation of judicial resources.
2. Guidelines
Just as disclosures would help alleviate the heft of judicial caseloads, so too could providing potential future amicus with a guideline about what the court expects from the ideal amicus brief. While the concept of an amicus brief may no longer conform to the traditional notion of absolute neutrality, it still ought to serve the purpose of providing information that is likely to be useful in the court’s decision-making process. As United States Supreme Court Rule 37 and Judge Posner make clear, amicus briefs that do nothing more than reiterate an argument posited in a party brief do not aid the court; quite the contrary, such briefs unnecessarily add to the workload of an already burdened judiciary.88 Despite the fact that scholars and well-versed practitioners have pointed out the error of submitting a “me too” amicus brief,89 the incredible number of amicus submissions in recent high-profile cases suggests that some amicus believe that the sheer number of amicus will sway a court.90 Such a belief is likely to be infectious, and without anything to prevent or discourage such practice, the filing of “me too” amicus briefs could become standard practice in state courts.
Although the number of amicus filings in any given case in the Supreme Court of Missouri does not begin to approach the number of such filings in cases before the United States Supreme Court, the Supreme Court of Missouri could still benefit from a rule aimed at minimizing the number of repetitious amicus briefs that come across its judges’ desks. Two general approaches toward such a rule could be taken. The first approach, used in United States Supreme Court Rule 37, reminds the would-be amicus that “me too” briefs burden the Court and states that the filing of such briefs are disfavored.91 The second approach, adopted by Judge Posner, establishes specific categories of acceptable amicus briefs and mandates that leave to file an amicus brief will be granted only to amicus who fall within one of those categories.92
Each approach has positives and negatives. The first approach applies to all amici, whether they are filing with consent of the parties, by leave of the court, or on the basis of its governmental status. The message of the second approach, on the other hand, may be overlooked by amici filing with consent of the parties or by government amicus, to whom the categories would not necessarily apply. The second approach is beneficial, however, in that, because denial of leave to file a “me too” brief is more concrete a consequence than being held in disfavor, its message may have greater impact. If amici feared that they might be denied leave to file, they may be more selective in the cases in which they seek participation, thereby minimizing unnecessary work on the part of both the judges who would otherwise read the briefs and the attorneys who would otherwise prepare them.
Recognizing that both approaches have advantages, Missouri would benefit from a combination of the two. By establishing categories into which amicus must fall for the court to grant leave to file, the Missouri Supreme Court would be taking steps to conserve resources at all levels of the judicial system. By also providing a general warning that repetitious briefs are disfavored, the Court would send its message to all potential amicus. Additionally, such a warning may deter parties from freely granting consent to would-be amici who offer nothing more than duplicative support.
V. Proposed Modifications
In light of the current role amicus curiae briefs play in modern American jurisprudence, their increasing commonality in the Supreme Court of Missouri, and the potential abuses of amici briefs, Missouri Supreme Court Rule 84.05(f) should be amended as follows:93
(f) Briefs and Suggestions of Amicus Curiae in This Court
(1) Suggestions may be filed in this Court by amicus curiae in support or in opposition to the granting of applications for transfer. Such suggestions are not favored. The suggestions shall only be filed with the consent of all parties or upon order of this Court. The suggestions shall not exceed five pages and shall be filed only if submitted a reasonable time prior to consideration by this Court of the application. Consideration of the application by this Court shall not be delayed pending receipt of the suggestions.
(2) A brief may be filed by amicus curiae in cases before this Court on the merits. The brief shall only be filed with the consent of all parties or upon order of this Court. The brief shall only be filed if presented for filing within the time allowed for the filing of the brief of the party supported.
(3) If consent to the filing of suggestions or a brief by amicus curiae is refused by a party to the case, a motion for leave to file may be filed with this Court. The motion for leave to file shall identify the parties refusing consent, concisely state the nature of the applicant’s interest, and set forth facts or questions of law that have not been, or reasons for believing that they will not adequately be, presented by the parties and their relevancy to the disposition of the case. The motion shall not exceed five pages. The brief shall be conditionally filed with the motion for leave. The motion shall not be granted unless one of the following conditions exists: (a) a party is not represented or is not competently represented by counsel; (b) the amicus has an interest in some other case involving a similar question; (c) there are matters of fact or law that might otherwise escape the attention of the Court; (d) the amicus has unique information about the issues before the Court; or (e) the amicus has substantial legitimate interests that will be affected by the outcome of the case that will not be adequately protected by party to the case. A party may file an objection to the filing of a brief of an amicus curiae concisely stating the reasons for withholding consent.
(4) All amicus briefs filed with consent of the parties or by leave of the Court shall, in the first footnote on the first page of text, (a) indicate whether counsel for a party authored the brief in whole or in part; (b) identify every person or entity, other than the amicus curiae, its members, or its counsel, who made monetary contributions for the purpose of funding the preparation or submission of the brief; (c) identify any party or counsel to party who has, within the past two years, made monetary contributions to the amicus, and disclose the amount of said contribution; and (d) indicate whether the amicus is involved in a factually and/or legally similar case in a different court and, if so, the name of the case and the court in which it is filed.
(5) Consent to the filing of suggestions or a brief of an amicus curiae need not be had when the suggestions or brief are presented by the attorney general or by a state entity authorized by law to appear on its own behalf.
(6) Any amicus brief filed in this Court that merely reiterates arguments already raised and/or information already provided by the parties burdens the Court and is not favored.
(7) All suggestions and briefs filed by amicus curiae shall conform with Rule 81.18 and Rule 84.06, respectively, and shall be accompanied by proof of service.
Footnotes
1 Ms. Weisshaar graduated from the University of Missouri-Columbia School of Law in May 2006. She currently is serving as law clerk to Supreme Court of Missouri Judge Laura Denvir Stith. The opinions expressed in this article are the author’s, and do not represent the position of Judge Stith or the Court as a whole.
2 See, e.g., Allison Lucas, Note, Friends of the Court? The Ethics of Amicus Brief Writing in First Amendment Litigation, 26 Fordham Urb. L.J. 1605, 1608 (1999); Nancy Bage Sorenson, Comment, The Ethical Implications of Amicus Briefs: A Proposal for Reforming Rule 11 of the Texas Rules of Appellate Procedure, 30 St. Mary’s L. J. 1219, 1221 (1999); Michael K. Lowman, Comment, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 Am. U.L. Rev. 1243, 1245 (1992).
3 See section II.
4 Sorenson at 1231.
5 Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694, 697-704 (1963); Lowman at 1253-56. See also Fed. R. Civ. P. 20, 24; Rule 52.05, 52.12.
6 See Sorenson at 1228-29, 1236 (discussing the ACLU’s amicus participation in Mapp v. Ohio, 367 U.S. 643 (1961), and the effect of the government’s amicus brief in abortion cases); Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs Revisited, 33 Stetson L. Rev. 171, 175-76 (2003) (describing attention the Court paid during oral argument in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), to the amicus brief filed by high-ranking members of the military); Mary-Christine Sungaila, Effective Amicus Practice Before the United States Supreme Court: A Case Study, 8 S. Cal. Rev. L. & Women’s Stud. 187, 194-96 (1999) (describing how the amicus briefs “figure[] prominently” in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)).
7 See Special R. 1 under Rule 84.05 (1993). Missouri Supreme Court Special Rule 1, Briefs and Suggestions of Amicus Curiae, was adopted effective August 7, 1985. Id. In 1996, the Supreme Court of Missouri repealed Special Rule 1, covering the subject matter in the newly added subsection (f) of Rule 84.05. Rule 84.05.
8 Although the text of current Rule 84.05(f) has been amended a total of three times, no substantial changes have been made. Compare Special R. 1 under Rule 84.05 (1993) with Rule 84.05 (2006).
9 See section III. B.
10 See section III. A.
11 Sorenson at 1221. Section (6) of Supreme Court Rule 37 became effective in 1997. Id. For discussion of section (6), see notes 69-70 and accompanying text.
12 See section IV.
13 Krislov at 699-700. The first time an amicus curiae brief was filed in a federal court was in the Supreme Court case of Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823). Krislov at 700. See note 25 and accompanying text.
14 Krislov at 694-697; Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. 269, 270 (2003).
15 Krislov at 694.
16 Walbolt, note 14 at 270; Lowman at 1248; Krislov at 694-95. Although under English common law, permission to participate as an amicus was “a matter of grace rather than right,” courts generally embraced such involvement, as it was seen as an aid in avoiding error. Id.; Lowman at 1248.
17 Krislov at 697.
18 Walbolt, note 14 at 270.
19 Krislov at 696.
20 Id.
21 Id. at 696-97.
22 Id. at 697. See also Lowman at 1249-50.
23 Lowman at 1250. For many years prior to the first use of amicus curiae in America, courts used more informal means to allow varying degrees of third party involvement. See Krislov at 697-700.
24 Krislov at 697.
25 Lowman at 1251.
26 Krislov at 700-01. See 21 U.S. (8 Wheat.) 1 (1823).
27 Id. at 702.
28 Id. at 703.
29 Id.; Sorenson at 1227. Among the first private organization amici were organizations whose members were part of highly regulated industries, such as “the transportation and financial industries, which are controlled by legislative or administrative decisions as they are interpreted or enforced by the courts.” Walbolt, note 14, at 273.
30 Sorenson at 1227.
31 Krislov at 703.
32 Stephen L. Wasby, The Supreme Court in the Federal Judicial System 110-11 (2d ed., Holt, Rinehart and Winson 1984).
33 Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 744 (2000).
34 Id. at 752-54. While many studies have examined amicus curiae participation in United States Supreme Court litigation, Kearney and Merrill’s study was the most recent and is more comprehensive than others. See, e.g., Nathan Hakman, Lobbying the Supreme Court – An Appraisal of “Political Science Folklore,” 35 Fordham L. Rev. 15 (1966); Karen O’Connor & Lee Epstein, Research Note, Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Hakman’s “Folklore,” 16 Law & Soc’y Rev. 311 (1981-82); Karen O’Connor & Lee Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35, (1983).
35 Kearney at 752.
36 Id. at 754.
37 Id.
38 Ryan J. Owens & Lee Epstein, Amici Curiae During the Rehnquist Years, 89 Judicature 127, 128 (2005).
39 Id. The authors note that “[o]nly in federal tax litigation does amicus curiae participation taper off, and even there at least one ‘friend’ participated in 10 of the 21 cases” heard by the United States Supreme Court from 1994 to 2003. Id.
40 Kearney at 757.
41 Id.
42 Id. at 758. One of the most well-known cases in which the Court relied on an argument presented by an amicus curiae is Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, “the American Civil Liberties Union (ACLU) argued that the Fourth Amendment…was applicable to the states through the Fourteenth Amendment” and, therefore, protected the defendant against unreasonable search and seizure. Sorenson at 1229. “Rather than basing its holding on the arguments brought by the parties, . . . the Court found the ACLU’s argument most persuasive, leading to an alteration in many state court prosecutions.” Id.
43 Owens at 130.
44 21 U.S. (8 Wheat.) 1 (1823). See note 26 and accompanying text.
45 56 Mo. 577 (1874).
46 This is in line with studies of state courts performed in Florida and Texas. See generally Walbolt, note 14; Sorenson.
47 Data for Chart 1 and Chart 2 was gathered via a Westlaw terms and connectors search of Supreme Court Missouri cases in which “amicus” or “amici” appeared in the attorney field. (Hereinafter “Westlaw amicus search”). Admittedly, this is not the most comprehensive evaluation of amicus participation in the Supreme Court of Missouri. Most notably, such a search excludes any amicus suggestions filed in support or opposition to the granting of applications for transfer under Missouri Supreme Court Rule 84.05(f)(1). Given that no comprehensive studies of amicus participation in the Supreme Court of Missouri exist, however, this cursory review of amicus participation at least provides a basic framework through which to view amicus participation and some concrete evidence of the commonality of the amicus brief in the Supreme Court of Missouri.
48 Based on Westlaw amicus search.
49 Id.
50 Data for Table 1 was gathered via a Westlaw terms and connectors search for “da(aft 12/31/____) & da (bef 1/1/____) & co(mo.) % co(app.).” (Hereinafter “Westlaw cases/year search”).
51 The Supreme Court of Missouri did not hear oral arguments in June, July or August 2006. Thus, this table shows the results of a total of six months.
52 Data for Table 2 was gathered from the Docket/Oral Arguments page of the Supreme Court of Missouri’s Web site. Supreme Court of Missouri, http://www.courts.mo.gov/SUP/index.nsf/Docket?OpenView (last visited December 20, 2006).
53 Kearney at 744. See note 33 and accompanying text.
54 Westlaw cases/year search. See Table 1 and Table 2.
55 Westlaw cases/year search. See Table 1 and Table 2.
56 Krislov at 695.
57 Lowman at 1247. See notes 18-22 and accompanying text.
58 Sorenson at 1227-28. See Sup. Ct. R. 27(9) (1938).
59 In 1949, Supreme Court Rule 27(9) was amended. Frederick Bernays Wiener, The Supreme Court’s New Rules, 68 Harv. L. Rev. 20, 80 (1954). In 1954, Rule 27(9) was replaced with Rule 42. Id. at 80-81; David B. Sweet, Annotation, Supreme Court’s Construction and Application of Supreme Court Rules 24, 25, and 37 (and Similar Predecessor Provisions), Prescribing Requirements for Briefs on Merits and for Amicus Curiae Briefs, 132 L. Ed. 2d 937 (2006). In 1980, Rule 42 was renumbered and became Rule 36. Id. at 1a, n3. Later that same year, Rule 36 was renumbered to the current Rule 37. Id.
60 See Sorenson at 1267-77 (laying out various state rules regarding the filing of amicus curiae briefs).
61 See generally Lowman.
62 Sup. Ct. R. 37; Fed. R. App. P. 29. Beyond the filing of briefs, the other aspect of federal litigation in which amici might be involved is oral arguments. For federal rules governing amicus involvement in oral arguments, see Sup. Ct. R. 28.7 and Fed. R. App. P. 29(g).
63 Sup. Ct. R. 37(2), (3); Fed. R. App. P. 29(a). Section (2) of Supreme Court Rule 37 governs filing of “[a]n amicus curiae brief submitted before the Court’s consideration of a petition for a writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ.” Sup. Ct. R. 37(2). Section (3) of Supreme Court Rule 37 governs filing of “[a]n amicus curiae brief in a case before the Court for oral argument.” Sup. Ct. R. 37(3). Both sections impose substantially the same requirements. Sup. Ct. R. 37(2), (3).
64 Sup. Ct. R. 37(2)(b), (3)(b).
65 Fed. R. App. P. 29(b).
66 Sup. Ct. R. 37(4); Fed. R. App. P. 29(a). The rationale for less strict standards for governmental entities filing of amicus briefs is that governments are thought to represent the public interest, to be “better equipped to argue what effect judicial decisions will have on the public welfare,” and to “have greater access to expertise and [social science] data.” Sorenson at 1234. But see Sorenson at 1235-38 (explaining that “governmental representatives occasionally represent political interests that are contrary to the public interest” and providing specific examples). Additionally, “in instances where federal courts are engaged in setting social policy, the involvement of other governmental branches provides a legitimizing quality.” Lowman at 1262.
67 Sup. Ct. R. 37(1).
68 See Walbolt, note 14, at 289; Walbolt, note 6, at 177; Sungaila at 189-90; Bruce J. Ennis, Effective Amicus Briefs, 33 Cath. U.L. Rev. 603, 608 (1984).
69 Lucas at 1613-14.
70 Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003); Ryan v. Commodity Futures Trading Com’n, 125 F.3d 1062 (7th Cir. 1997).
71 125 F.3d at 1063.
72 Id.
73 Sup. Ct. R. 37(6).
74 Sorenson at 1249-54; Walbolt, note 14, at 290.
75 Rule 84.05(f); E.D. Mo. Spec. R. 375; S.D. Mo. Spec. R. 15; W.D. Mo. Spec. R. XXVI .
76 Beyond the filing of briefs, the other aspect of appellate litigation in which amici might be involved is oral arguments. Missouri does not have any specific rules regarding amicus involvement in oral arguments. By practice, however, an amicus who has submitted a brief in a case may argue, but only if a party agrees to share some of the time to which it is entitled for oral argument. E-mail from Bill Thompson, Counsel, Supreme Court of Missouri, to Jesse Weisshaar, law student, University of Missouri-Columbia School of Law (April 13, 2006, 09:18 CST) (on file with author). Also, Missouri courts have long recognized “that in a proper case” the court can appoint an amicus curiae “to aid and assist the court by the performance of certain services which are necessary to guide the court to a proper conclusion.” McCoy v. Briegel, 305 S.W.2d 29, 39 (Mo. App. E.D. 1957). This article addresses neither amici involvement in oral argument nor court appointment of amici.
77 Rule 84.05(f)(2). Similarly, “[s]uggestions…in support or in opposition to the granting of applications for transfer” can be filed by amicus if the same conditions are met. Rule 84.05(f)(1). Unlike amicus briefs in cases before the Court on the merits, however, amicus suggestions are specifically disfavored by the Court. Rule 84.05(f)(1), (2).
78 Rule 84.05(f)(3).
79 Rule 84.05(f)(4).
80 E-mail from Bill Thompson, note 76.
81 Id.
82 Should such “creative use” ever rise to the level of fraud or misrepresentation, any attorney engaging in such conduct would, of course, be subject to Missouri’s Rules of Professional Conduct. See Rule 4-8.4 (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .”).
83 Indeed, some scholars encourage at least some level of cooperation between the party and the amicus in preparing the amicus brief. See Sungaila, note 6, at 189-90.
84 See Rule 84.06(b).
85 Rule 84.05(f)(3). Despite no current requirement to do so, some amicus in the Supreme Court of Missouri include a statement of interest in the amicus brief, but not all amicus do so. Compare Brief of the National League of Cities et al., as Amicus Curiae in Support of Plaintiffs-Appellants, City of Wellston v. SBC Communications, Inc., No. 87207 (Mo. filed Jan. 26, 2006) with Brief of Amicus Curiae Missouri Bankers Association, Glass v. First National Bank of St. Louis, No. SC86408 (Mo. filed Feb. 15, 2005). Available at http://www.courts.mo.gov/SUP.
86 A monetary contribution can be direct – for example, a party funds an organization’s preparation of an amicus brief – or indirect – for example, a party donates money to an organization, which later submits an amicus brief in favor of the party. See Sorenson at 1253-54.
87 Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997).
88 See notes 67-71 and accompanying text.
89 See, e.g., Ennis at 608; Walbolt, note 6, at 177; Sungaila at 189-90.
90 See, e.g., Walbolt, note 6, at 172 (explaining that because of the importance of Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), “more than 100 amicus briefs were filed to support each side.”). See also Ennis, note 68, at 608 (noting that, at least before certiorari has been granted, “the fact of amicus support may be relevant to the Court’s deliberations”).
91 See Sup. Ct. R. 37(1).
92 See note 72 and accompanying text.
93 Proposed additions are noted by the underlined text.