10.30.2007

Description of Amicus Curiae

Posted to supplement the discussion at watchpaul on this topic:

An amicus curia brief literally means "friend of the court." It is written by an interested party that is NOT a party to the lawsuit to give the court more information on the law. It is not a sure thing. The group has to file an application to the court to file the brief which has to be accepted BEFORE the filing is accepted.

This latest move means someone has gotten someone in the City Attorney's office to help Paul. Nothing in the brief has anything to do with San Francisco....


Here's the description of Amicus Curiae:

"''Amicus curiae'' is a Latin expression meaning ''friend of the court'' [Black's Law Dictionary 75 (5th ed. 1979)]. The plural of amicus curiae is ''amici curiae.'' Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions [ Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169, 1179-1183, 39 Cal. Rptr. 3d 788, 129 P. 3d 1 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].

Although an amicus curiae generally participates in an appellate court proceeding at his or her own request [ see § 22.16], the trial court may request him or her to seek permission to participate from the appellate court [see Marshall v. Marshall (1931) 212 Cal. 736, 737-738, 300 P. 816 (trial court requested that certain attorneys seek permission from appellate court to file amicus curiae briefs when defendant failed to appear on appeal or file a brief; trial court's action justified by sufficiently public nature of matter involved)]. A trial court may not appoint an amicus curiae to represent it on appeal, however, since the court itself is not a party to the appeal [ In re Pina (1896) 112 Cal. 14, 16, 44 P. 332 ].

The appellate court may also invite amicus curiae briefs [see Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880, 153 Cal. Rptr. 842, 592 P.2d 329 (Supreme Court requested amicus briefs relating to construction of disputed insurance statute), overruled on other grounds in Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 250 Cal. Rptr. 116, 758 P.2d 58 ].

[1] Raising New Matters Generally Not Permitted

As a general rule, an appellate court will consider only those questions properly raised by the parties; an amicus curiae in an appellate court must accept the issues as framed and propositions as set forth by the appealing parties. Any additional questions presented in a brief filed by an amicus curiae will generally not be considered by the court [ White v. Davis (2003)
30 Cal. 4th 528, 553, n. 10, 133 Cal. Rptr. 2d 648, 68 P.3d 74 (court refused to consider amicus curiae argument regarding payment to lawyers appointed to represent indigent defendants when argument was not previously raised); Berg v. Traylor (2007) 148 Cal. App. 4th 809, 823, 56 Cal. Rptr. 3d 140 ; Big Creek Lumber Co. v. County of Santa Cruz (2004) 115 Cal. App. 4th 952, 966, 10 Cal. Rptr. 3d 356 (court refuses to hear constitutional issue raised solely by amicus curiae); Rieger v. Arnold (2002) 104 Cal. App. 4th 451, 461, 128 Cal. Rptr. 2d 295 (court rejected amicus curiae argument urging court not to consider plaintiff's actions in sexual harassment cause of action because parties did not raise argument); see also Knetsch v.
United States (1960) 364 U.S. 361, 370, 81 S. Ct. 132, 5 L. Ed. 2d 128 (additional questions presented in amicus curiae brief filed in U.S. Supreme Court not considered); City of Los Angeles v. Standard Oil Co. (1968) 262 Cal. App. 2d 118 , 127, 68 Cal. Rptr. 512 (amicus curiae who filed brief in appellate court declaratory relief action to determine constitutionality of
a statute was not allowed to seek relief based on hypothetical construction of statute not asserted by parties)].

[2] New Arguments or Issues Sometimes Allowed

Generally, courts will consider an issue raised only by amicus curiae only in the following situations [ Costa v. Workers' Comp. Appeals Bd. (1998) 65 Cal. App. 4th 1177, 1187-1188, 77 Cal. Rptr. 2d 289 ]: The issue supports affirmance.

The issue concerns the jurisdiction of the court.

For example, the Supreme Court considered an issue first raised by an amicus curiae on appeal because a jurisdictional question was involved, and the appeal was also from judgment of dismissal after the trial court sustained a general demurrer without leave to amend, in which situation an appellate court is required to affirm the judgment if it is correct on any theory,
including one first raised by amicus [see E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal. 3d 497, 510-511, 146 Cal. Rptr. 614, 579 P.2d 505 ].

An amicus curiae may also be permitted to raise a new issue on appeal when
the issue arises from a United States Supreme Court opinion decided during
pendency of appellate court action, the parties do not inform the appellate
court of that decision, and the appellate decision does not address the
particular issue [see Fisher v. City of Berkeley (1984) 1985-1 Trade Cas.
(CCH) P66473, 37 Cal. 3d 644, 209 Cal. Rptr. 682, 693 P.2d 261 , aff'd, 475
U.S. 260, 106 S. Ct. 1045, 89 L. Ed. 2d 206, 1986-1 Trade Cas. (CCH) P66965
]; the issue is a purely legal issue of statutory interpretation and is not
dependent upon the development of a factual record in the trial court [see
California Highway Patrol v. Superior Court (2006) 135 Cal. App. 4th 488,
498, 38 Cal. Rptr. 3d 16] ; the issue presented is of statewide importance
and capable of being presented repeatedly [see Lavie v. Procter & Gamble Co.
(2003) 105 Cal. App. 4th 496, 503, 129 Cal. Rptr. 2d 486 (court considered
amicus argument because standard for evaluating whether advertisement is
deceptive under Unfair Competition Law is question of law with important
public policy implications); People v. Niebauer (1989) 214 Cal. App. 3d
1278, 1291, 263 Cal. Rptr. 287 (court considered argument of amicus curiae
not raised by either party, relating to constitutionality of statute
prohibiting dark-tinted windows in motor vehicles)]; the lower court had a
duty to take judicial notice of the material forming the basis of the amicus
curiae's argument, and the material can therefore be considered part of the
record on appeal [see Pratt v. Coast Trucking, Inc. (1964) 228 Cal. App. 2d
139, 143-149, 39 Cal. Rptr. 332 (Public Utilities Commission as amicus
curiae permitted to raise argument not raised by either party) ]; or the
interests of justice dictate that the amicus be allowed to present the issue
[see People v. Coleman (1942) 53 Cal. App. 2d 18, 32, 127 P.2d 309 (allowing
amicus curiae in criminal action to raise objections to instructions not
objected to by defendant)].

[3] Improper Matter Ignored or Stricken

The rules and practices of reviewing courts accord wide latitude to
interested and responsible parties who seek to file amicus curiae briefs, in
order to further the purpose of these briefs in assisting the court [ Bily
v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 405 n.14, 11 Cal. Rptr. 2d 51,
834 P.2d 745 ; see Cal. Rules of Ct., Rule 8.520(f); see also discussion in
§ 22.11[1] (purpose of participation by amicus curiae)]. The reviewing court
may choose to ignore, however, improper material such as unreliable and
irrelevant information [ Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370,
405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ].

Improper material may be stricken from an amicus brief in extreme cases of
obvious abuse of the amicus curiae privilege. Otherwise courts are not
inclined to control the contents of amicus curiae briefs by use of orders to
strike [see Cornette v. Department of Transp. (2001) 26 Cal. 4th 63, 77, 109
Cal. Rptr. 2d 1, 26 P.3d 332 ; Bily v. Arthur Young & Co. (1992) 3 Cal. 4th
370, 405 n.14, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ; Matuz v. Gerardin Corp.
(1989) 207 Cal. App. 3d 203, 206-207 ].

For further discussion of improper content of appellate briefs generally,
and a form of motion to strike a defective brief, see Ch. 50, Appeal: Briefs


In an appeal to the appellate division of the Superior Court, an amicus
curiae may file a brief after permission is obtained from the presiding
judge, subject to any conditions that he or she may prescribe. If the brief
supports one of the parties' position, that fact must be noted in its
heading [Cal. Rules of Ct., Rule 8.706(b); see also Cal. Rules of Ct., Rule
8.706(c), (d) (contents and format of briefs filed in appellate division of
superior court); for a form of such notation, see § 22.42 ].

The Attorney General may file an amicus curiae brief without obtaining the
presiding judge's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The presiding judge may
prescribe reasonable conditions for filing and answering such a brief [Cal.
Rules of Ct., Rule 8.706(b) ].

For a form of request for leave to file a brief as amicus curiae in the
appellate division of the superior court, see § 22.41[1] . For further
discussion relating to the requirements governing the content and format,
and filing of a brief, including an amicus curiae brief, in an appeal before
the appellate division of the superior court, see Ch. 345A, Limited Civil
Cases, § 345A.56 .

An amicus curiae brief must be served on all parties before it is filed
[Cal. Rules of Ct., Rule 8.706(e) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of the brief. For forms of proof of service, see Ch. 518, Service of
Summons and Papers, § 518.90 et seq.

[3] California Court of Appeal

A brief of amicus curiae in a court of appeal on the merits of an action or
proceeding may be filed after permission is first obtained from the
presiding justice, subject to any conditions that may be prescribed. To
obtain permission the applicant must file with the clerk of the reviewing
court a signed request that states the nature of the applicant's interest
and explains how the proposed amicus curiae brief will assist the court in
deciding the matter [Cal. Rules of Ct., Rule 8.200(c)(2) ]. The proposed
brief must be served and must accompany the application, and may be combined
with the application [Cal. Rules of Ct., Rule 8.200(c)(3) ]. The covers of
the application and proposed brief must identify the party the applicant
supports, if any [Cal. Rules of Ct., Rule 8.200(c)(4) ]. For a form of
request for leave to file a brief as amicus curiae in the court of appeal,
see § 22.41[1] .

The Attorney General may file an amicus curiae brief without obtaining the
presiding justice's permission, unless the Attorney General is presenting
the brief on behalf of another state officer or agency. The Attorney General
must file the brief within 14 days after the last respondent's brief, or the
return, is filed. The brief must contain the information otherwise required
in a request for permission to file an amicus brief in the court of appeal.
Any party may file an answer to an amicus curiae brief of the Attorney
General within 14 days after it is filed [Cal. Rules of Ct., Rule
8.200(c)(6) ].

If the court grants the application of an amicus curiae to file a brief, any
party may file an answer within the time the court specifies [Cal. Rules of
Ct., Rule 8.200(c)(5) ]. Before any answer to an amicus curiae brief is
filed, it must be served on all parties and on the amicus curiae [Cal. Rules
of Ct., Rule 8.200(c)(5) ]. To demonstrate compliance with this requirement,
it is recommended that proof of service accompany the filing copies of such
briefs. For forms of proof of service, see Ch. 518, Service of Summons and
Papers, § 518.90 et seq. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].

The covers of the amicus curiae application and brief must identify the
party, if any, that the brief supports [Cal. Rules of Ct., Rule 8.520(f)(5);
for a form of such notation, see § 22.42 ]. Whenever practicable, the cover
of an amicus curiae brief should be gray [Cal. Rules of Ct., Rule 8.40(b) ].

For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil appeal before the court of appeal, see Ch. 50,
Appeal: Briefs .

A brief of amicus curiae on the merits of an action or proceeding may be
filed after permission is obtained from the Chief Justice, subject to any
conditions that may be prescribed. To obtain permission the applicant must
file with the clerk of the Supreme Court a signed request, accompanied by
the proposed brief, stating the nature of the applicant's interest and
explaining how the proposed brief will assist the court in deciding the
matter [Cal. Rules of Ct., Rule 8.520(f)(3) ].

The request and proposed brief must be received by the court no later than
30 days after all briefs, other than supplemental briefs, which the parties
are entitled to file pursuant to Cal. Rules of Ct., Rule 8.520(f), either
have been filed or can no longer be filed within the time limits prescribed
by that rule. The Chief Justice may grant leave for later filing if the
applicant presents specific and compelling reasons for the delay [Cal. Rules
of Ct., Rule 8.520(f)(2) ]. For a form of request for leave to file a brief
as amicus curiae in an appeal before the Supreme Court, see § 22.41[2] .

The Attorney General may file an amicus curiae brief without obtaining the
Chief Justice's permission, unless the Attorney General is presenting the
brief on behalf of another state officer or agency. The Attorney General
must file the brief within the time required for receipt of a request for
permission to file an amicus brief. The brief must contain the information
otherwise required in a request for permission to file an amicus brief in
the Supreme Court [Cal. Rules of Ct., Rule 8.520(f)(7) ].

Before any amicus curiae brief is filed, it must be served on all parties
[Cal. Rules of Ct., Rule 8.520(f)(1) ]. To demonstrate compliance with this
requirement, it is recommended that proof of service accompany the filing
copies of such briefs [cf. discussion in [a], above (proof of service
expressly required for amicus curiae letter supporting or opposing petition
for review); for forms of proof of service, see Ch. 518, Service of Summons
and Papers § 518.90 et seq.]. The filing copies of the brief must also be
accompanied by proof of deposit of one copy with the clerk of the superior
court for delivery to the judge who presided at trial [see Cal. Rules of
Ct., Rule 8.212(c) ].

Any party may file an answer to an amicus brief within 20 days after it is
filed. Before any answer is filed, it must be served on all parties and on
the amicus curiae [Cal. Rules of Ct., Rule 8.520(f)(6) ].

Amicus curiae briefs on the merits in the Supreme Court must conform as
nearly as possible to the requirements of Cal. Rules of Ct., Rule 8.520(b),
relating to form and content. The cover of an amicus curiae brief must
identify the party, if any, that the brief supports [Cal. Rules of Ct., Rule
8.520(f)(5); for a form of such notation, see § 22.42 ]. In addition,
whenever practicable, the cover of an amicus curiae brief should be gray
[Cal. Rules of Ct., Rule 8.40(b) ].

For further discussion and forms relating to the format, content, and other
procedural requirements governing briefs generally, including amicus curiae
briefs, filed in a civil review proceeding before the Supreme Court, see Ch.
54, Appeal: California Supreme Court Review .

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