Amicus Curiae Briefs in California State Courts

Amicus curiae briefs are a useful way for people to have their voices heard in legal cases, even when they aren’t a party to the litigation. In California, they can be filed in both appellate courts and the state supreme court.

Amicus curiae is a Latin phrase that means “friend of the court.”[1]Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1177. It refers to a person or group that is not a party to a legal action, but wants their opinion to be heard by the court. They can file a brief—called an amicus brief—in which they explain their theory of the case.

In California, amicus briefs can be filed in both civil and criminal cases.[2]See Cal. Rules of Court, rules 8.200, 8.360, 8.412, 8.487, 8.520, 8.630. They are usually filed in the court of appeal or the supreme court—California’s two highest levels of court.[3]Cal. Const., art. VI, §§ 2, 3; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015), available here. They can also be filed in the superior court—the lowest court in California.[4]Cal. Rules of Court, rule 8.882, subd. (d) [allowing amicus briefs in the appellate division of the superior court]; see also In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924 [suggesting that amicus briefs might be permissible at the trial level].

This article explains amicus curiae procedures in California state courts.[5]This article does not cover federal amicus curiae procedures. If you have questions not addressed in this article, or if you are interested in information about federal amicus petitions, you should contact a qualified amicus curiae attorney in your area today.

Why Case Law Matters: Stare Decisis

The basic purpose of an amicus brief is to influence the outcome of a case.[6]See Paul M. Collins, Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc’y Rev. 807 (2004), available here. To understand why a group would want to do that, we can look at the effect legal cases can have on other, similar legal cases.

California courts follow a doctrine called stare decisis , as do all courts in the United States. “Stare decisis” is a Latin phrase, short for “stare decisis, et non quieta movere.”[7]People v. Cahill (1993) 5 Cal.4th 478, 557, fn. 1. Roughly translated, it means “to stand by and adhere to decisions and not disturb what is settled.”[8]In re Osborne (9th Cir. 1996) 76 F.3d 306, 309.

In application, stare decisis is the idea that a decision of a higher court will bind the decisions of lower courts on the same issue.[9]Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. A case that binds lower courts is called precedent. Important precedents can impact numerous future cases and the lives of many people.

For example, the California Supreme Court decided In re Marriage Cases in 2008, which held that the California Constitution guaranteed same-sex couples the right to marry.[10]In re Marriage Cases (2008) 43 Cal.4th 757, 829. This temporarily resulted in all same-sex couples across the state having the right to marry, regardless of whether they were directly involved in the case.[11]The voters later passed Proposition 8, which restricted the right to marriage again. But in 2015, the Supreme Court of the United States held that the federal constitution protected a right of same-sex marriage. (Obergefell v. Hodges (2015) 576 U.S. ___ [135 S. Ct. 2584].) This case demonstrates why court decisions can be so important—their outcomes can affect many people.

The purpose of stare decisis is to ensure some degree of stability, consistency, and predictability within our court system.[12]People v. Savala (1981) 116 Cal.App.3d 41, 60 So, although precedents can be overruled,[13]Sierra Club v. San Joaquin Local Agency (1999) 21 Cal.4th 489, 505. litigants will generally know how issues will be resolved once they are decided by a higher court.[14]Hilton v. South Carolina Pub. Rys. Comm’n (1991) 502 U.S. 197, 202. This allows people to rely on the law as defined by precedent-setting cases.

In California, two courts are capable of producing opinions that hold precedential value: (1) the California Court of Appeal, and (2) the Supreme Court of California.[15]”The decisions of [the supreme] court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court has described it as “debatable” whether the opinions of the appellate division of the superior court can ever hold precedential value. (Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 782, fn. 9; see also Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, 1477, fn. 7; People v. Corners (1985) 176 Cal.App.3d 139, 146.) And only published decisions of the court of appeal hold precedential value.[16]Cal. Rules of Court, rule 8.1115, subd. (a).

The doctrine of stare decisis gets a little more complicated than what is explained here. But the important takeaway is that a single case can have wide-reaching effects on the rights and obligations of people across California.

So it makes sense for people or organizations to seek involvement when their interests (or the interests of their constituents) might be at stake. Amicus briefs are one of the most common ways to have their voice heard in a case.

Benefits of Amicus Briefs

Most groups that file an amicus brief—called the amicus (singular) or amici (plural)—are motivated by one or more of the following reasons:

They want to help shape the development of case law.

They want to draw attention to a specific concern in the case.

They want to bolster the arguments of a party.

They want to share a unique viewpoint.

Shaping Case Law

Amicus briefs can be a good idea for groups that want to help influence the development of the law. Amici (the groups that file amicus briefs) usually do not care about the specific parties involved in a case. Instead, they take a broad view of the policies at stake and argue in favor of their desired outcome.

For this reason, amicus briefs are most common in cases that involve significant legal issues.[17]Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14. In fact, some courts even solicit amicus briefs from interested organizations when an issue of particular public importance is identified.[18]See, e.g., Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1083.

Because amicus briefs can help shape the development of the law by influencing court decisions, they are an important tool for unions, nonprofits, corporations, and public interest groups alike.

Drawing Attention to Issues or Cases

Amicus briefs can also help highlight specific concerns in a case. The parties directly involved in the litigation might overlook an issue or spend very little time discussing it.

This commonly happens when parties need to make comprehensive arguments about their case or confront multiple other issues. The parties’ briefs are usually limited by both word count rules and stylistic considerations. So addressing particular points in detail might not be feasible.

Amici, on the other hand, are not similarly constrained. Although they still must abide by word count limits, they can focus their briefs on one or two important issues and disregard the rest.

Amici, for example, can often avoid bickering about the facts of the case because they are not necessarily concerned about the particular parties. Instead, they can dedicate their briefs to the broader policy concerns.

Bolstering Arguments

Amicus briefs can bring credibility to an argument. The actual parties of a case are often biased in their presentation of the facts and legal arguments, which courts know and expect. So it can sometimes be difficult to take the policy arguments of the parties seriously.

An independent organization, however, can appear less biased and can demonstrate the desires or fears of a particular group of people. The appearance of credibility and legitimacy go a long way toward winning an argument.

For example, a criminal defendant might argue that a particular outcome would negatively effect the rights of many people. A court is unlikely to take seriously the fears of one self-interested criminal. But when an organization like the ACLU files an amicus brief making a similar argument, courts are more likely to pay attention.

In this way, amicus briefs can be a powerful tool to help strengthen the credibility of arguments in a case.

Sharing a Unique Viewpoint

In some cases, the main parties get their arguments wrong. In others, the parties ignore the interests of people who that might be indirectly affected by the decision. When this happens, an amicus brief can help explain to the court why an alternative approach should be taken.

Courts often appreciate amicus briefs because the people filing them are nonparties who have a different perspective from the primary litigants.[19]Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14 [“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.”]. That perspective can help educate the court on relevant considerations that might not otherwise be expressed by the parties.

Who Can File an Amicus Brief

The California Rules of Court allow “any person or entity” to apply for permission to file an amicus brief.[20]Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.500, subd. (g). This would seem to allow anyone to participate in the amicus process.

The courts, however, retain discretion to deny any person or group’s application.[21]Cal. Rules of Court, rule 8.200, subd. (c)(1). And an order denying an application to appear as amicus curiae is not appealable.[22]People v. Long Beach (1960) 183 Cal.App.2d 271, 276; In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924. Meaning, there is nothing a person or group can do to compel a court to let their voices be heard as amicus curiae.

In practice, most amicus briefs are filed by: organizations dedicated to advocacy; government entities or officials; corporations; nonprofits; and trade associations, unions, or professional groups.

Amicus Briefs in the California Court of Appeal

The California Court of Appeal and the Appellate Divisions of the California Superior Courts have mostly identical amicus procedures. This section focuses on the court of appeal, but provides citations for the appellate division as well.

The first step to get involved as an amicus curiae is to obtain permission from the presiding justice to file an amicus curiae brief.[23]Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.882, subd. (d)(1). The application must be accompanied by the proposed amicus brief.[24]Cal. Rules of Court, rules 8.200, subd. (c)(4), 8.882, subd. (d)(4). Most attorneys combine their amicus brief and their application to file an amicus brief into a single filing.

The application must explain the prospective amicus’s interest in the case.[25]Cal. Rules of Court, rules 8.200, subd. (c)(2), 8.882, subd. (d)(2). In doing so, it should emphasize why the amicus will provide a valuable viewpoint that the court should hear.

The application and brief must be filed no later than 14 days after the appellant’s reply brief is filed, which is usually the last brief in the case.[26]Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.882, subd. (d)(2). Sometimes no reply brief is filed, in which case the application and brief should be filed within 14 days of when the time to file the last brief expired.[27]Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.212, subd. (a), 8.881, 8.882, subd. (d)(1).

Some attorneys recommend filing the amicus brief far in advance of the reply—sometimes as early as the date the opening brief is filed, or shortly after. That decision is ultimately a strategic one and outside the scope of this article.

The presiding justice can allow amici to file their application and brief later than 14 days of when the appellant’s reply brief is or should have been filed.[28]Cal. Rules of Court, rule 8.200, subd. (c)(1), 8.882, subd. (d)(1). But amici should not rely on on that discretion, if possible.[29]See, e.g., Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal.App.4th 1472, 1482, fn. 3 [denying amicus curiae’s application as untimely].

Appellate courts also requires that certain financial interests be disclosed. An application must include:

A list of every person or entity who made a financial contribution to fund the brief, other than the amicus curiae themselves;[30]Cal. Rules of Court, rules 8.200, subd. (c)(3)(B), 8.882, subd. (d)(3)(B).

A statement about whether any party or an attorney for any party authored any part of the amicus brief;[31]Cal. Rules of Court, rules 8.200, subd. (c)(3)(A)(i), 8.882, subd. (d)(3)(A)(i). and

A statement about whether any party or an attorney for any party made a monetary contribution to fund the preparation or submission of the brief.[32]Cal. Rules of Court, rule 8.200, subd. (c)(3)(A)(ii), 8.882, subd. (d)(3)(A)(ii).

On the cover, the amicus must disclose the party that it supports—if any.[33]Cal. Rules of Court, rules 8.200, subd. (c)(5). This requirement is not listed in the California Rules of Court for the appellate division of superior courts. This is usually done in the title of the brief itself. For example:

Application for Leave to File Amicas Curiae Brief and Brief of [group name(s)] in Support of [Appellant or Respondent].

Finally, the application and brief must be served on all parties or their attorneys and the superior court.[34]Cal. Rules of Court, rules 8.25, subd. (a), 8.200, subds. (c)(1), (c)(4), 8.212, subd. (c)(1), 8.882, subds. (d)(1), (d)(4). Depending on the case, there may be other parties that must be served.

At the end of the application and brief, a proof of service must be included. The proof of service should specifically list each party on whom the letter was served, along with their service address. A sample proof of service can be found here. For the appellate division of the superior court, a sample proof of service is available here.

Amicus Briefs in the Supreme Court of California

The application and briefing procedures for amici curiae in the supreme court largely mirror those in the appellate courts.[35]Compare Cal. Rules of Court, rules 8.520, subd. (f), 8.882, subd. (d), with Cal. Rules of Court, rule 8.200, subd. (c). In the supreme court, however, amici should be careful to note the status of the case.

Sometimes the court will “grant and hold” a petition.[36]Cal. Rules of Court, rule 8.512, subd. (c)(2). In this kind of situation, the supreme court is usually waiting to decide a different case that is similar or related to the one it granted and held. It defers briefing to a later time and an amicus brief might not yet be appropriate.

Assuming the case is properly before the court and briefing has begun, the first step is to obtain permission from the chief justice to file an amicus curiae brief.[37]Cal. Rules of Court, rule 8.520, subd. (f)(1). This request for permission comes in the form of a filed application.[38]Cal. Rules of Court, rule 8.520, subd. (f)(1).

The application must explain the prospective amicus’s interest in the case.[39]Cal. Rules of Court, rule 8.520, subd. (f)(3). It must also explain why the amicus will provide a valuable viewpoint that the court should hear. In other words, the amici should emphasize their expected role in assisting the court’s decision.

The application must be accompanied by the proposed brief, and it must state on its cover the party it seeks to support, if any.[40]Cal. Rules of Court, rule 8.520, subds. (f)(5)–(f)(6). Many attorneys consolidate the application and the amicus brief into one brief—a practice expressly permitted by the rules of court.[41]Cal. Rules of Court, rule 8.520, subds. (f)(5).

The title of the application will usually reference the fact that a brief is included with it, and it will identify the party whom it is written to support.[42]Cal. Rules of Court, rule 8.520, subds. (f)(5)–(f)(6). For example:

Application for Leave to File Amici Curiae Brief and Amici Curiae Brief of [group name(s)] in Support of [Petitioner or Respondent].

In the application, the amici must disclose certain financial interests, including:

An explanation of whether any party or an attorney for any party authored any part of the amicus brief;[43]Cal. Rules of Court, rule 8.520, subd. (f)(4)(A)(i). and

An explanation of whether any party or an attorney for any party made a monetary contribution to fund the preparation or submission of the brief.[44]Cal. Rules of Court, rule 8.520, subd. (f)(4)(A)(ii).

A list of every person or entity who made a financial contribution to fund the brief, other than the amicus curiae themselves;[45]Cal. Rules of Court, rule 8.520, subd. (f)(4)(B).

The application and brief may be filed no later than 30 days after all briefs of the parties have been filed.[46]Cal. Rules of Court, rule 8.520, subd. (f)(2). For the purposes of this rule, supplemental briefs are not “briefs of the parties” and do not extend the time in which an amicus may file their brief.[47]Cal. Rules of Court, rule 8.520, subd. (f)(2).

The chief justice can allow amici to file their application and brief later than 30 days of when all the parties briefs were or should have been filed.[48]Cal. Rules of Court, rule 8.520, subd. (f)(2). But amici should not rely on on that discretion, if possible.[49]See, e.g., People v. Rodriguez (May 3, 2012, No. S187680) ___Cal.4th___ [2012 Cal. LEXIS 4596, at *1] [denying amicus curiae’s application as untimely].

The application and brief must be served on all parties or their attorneys, the superior court, and the court of appeal.[50]Cal. Rules of Court, rules 8.212, subds. (c)(1)–(2), 8.520, subds. (f)(1), (f)(5). Depending on the case, there may be other parties that must be served.[51]See, e.g., Cal. Rules of Court, rule 8.29, subd. (c). At the end of the application and brief, a proof of service must be included.

Amici should file one original and 13 copies of the application and brief with the court.[52]Cal. Rules of Court, rule 8.44, subd. (a)(1)(A). Alternatively, for those technologically-inclined amici, the application and brief may be submitted electronically, in which case the amici need only file one original and eight copies of the application and brief.[53]Cal. Rules of Court, rule 8.44, subd. (a)(1)(B).

The parties also have the right to serve and file an answer to the amicus briefs.[54]Cal. Rules of Court, rule 8.520, subd. (f)(7). The answer may be a response to an individual amicus brief, or it can be a consolidated answer to multiple amici.[55]Cal. Rules of Court, rule 8.520, subd. (f)(7). The answer, if any, must be filed within 30 days of the last timely-filed amicus application, or whenever the time to file an amicus curiae brief expires.[56]Cal. Rules of Court, rule 8.520, subd. (f)(7).

Seeking Oral Argument

Courtroom for Oral Argument

Oral argument is an important stage in many appellate cases. Under certain circumstances, amicus curiae can participate.

After the briefing stage is complete, the case may be orally argued.[57]Cal. Rules of Court, rules 8.256, 8.516, subd. (a)(2), 8.524; Cal. Const., art VI, §§ 2–3. For the parties directly involved in the case, oral argument is a right.[58]People v. Brigham (1979) 25 Cal.3d 283, 287.

In some situations, an amicus curiae can participate in oral argument.[59]Cal. Rules of Court, rules 8.256, subd. (c)(2), 8.524, subd. (g). But, as nonparties, they have no affirmative right to do so.[60]Cal. Rules of Court, rules 8.256, subd. (c)(2), 8.524, subd. (g); see, e.g., In re E.J. (July 15, 2009, No. S156933) ___Cal.4th___ [2009 Cal.LEXIS 6924, at *1] [“Amicus curiae’s motion for oral argument is also denied.”].

In the California Court of Appeal

In the court of appeal, oral argument can be waived by the parties, in which case the matter will be decided based on the briefs alone.[61]Cal. Rules of Court, rule 8.256, subd. (d)(1). So oral argument does not necessarily happen in every case.

An amicus curiae seeking oral argument must file a written request with the court, which can be approved or denied in the court’s discretion.[62]Cal. Rules of Court, rules 8.256, subd. (c)(2).

The California Rules of Court do not specify when a request for oral argument must be filed, and the procedures can vary depending on the district. Usually, the time to request oral argument is specified in a notice that the court of appeal’s clerk sends to the parties.[63]See Cal. Rules of Court, rule 8.256, subds. (b), (d)(1).

Normally, the parties directly involved in the case are allowed up to 30 minutes, per side, to argue their case at oral argument in the court of appeal.[64]Cal. Rules of Court, rule 8.256, subd. (c)(2). Some appellate districts limit that time to 15 minutes, even though the California Rules of Court would seem to prohibit them from doing so.[65]See, e.g., Misc. Order No. 021115 (4th Dist., Div. 1, Feb. 11, 2015), available here; contra, Cal. Rules of Court, rule 8.256, subd. (c)(2) [“Each side is allowed 30 minutes for argument.”].

If the court grants the request of one or more amicus curiae to participate in oral argument, it might divide or expand the time it would otherwise allot to the parties.[66]Cal. Rules of Court, rule 8.256, subd. (c)(2).

Amici wishing to participate in oral argument in the court of appeal should check all local rules. It can also be helpful to discuss the correct procedures with a court clerk.

In the California Supreme Court

The California Supreme Court hears oral arguments in all cases it decides on the merits.[67]Cal. Rules of Court, rule 8.524, subds. (a)–(e). The California Supreme Court posts the audio of some of its more-notable oral arguments here.

In the supreme court, the ability of amici to participate in oral argument is more limited than in the court of appeal.[68]Cal. Rules of Court, rule 8.524, subd. (g). Unless the court orders otherwise, only one attorney for each side may orally argue a case.[69]Cal. Rules of Court, rule 8.524, subd. (f)(1). An amicus curiae requires permission from one of the parties to use a portion of their time.[70]Cal. Rules of Court, rule 8.524, subd. (g).

Each side is apportioned thirty minutes of oral argument time in the California Supreme Court.[71]Cal. Rules of Court, rule 8.524, subd. (g). They can request to divide their time among multiple attorneys (including the amici’s attorneys) in segments of no less than ten minutes.[72]Cal. Rules of Court, rule 8.524, subds. (f)(3), (g).

So, a request by an amicus curiae to use a portion of a party’s time can be very costly for that party.

A request to divide time must be made within ten days of the date the order setting oral argument is filed.[73]Cal. Rules of Court, rule 8.524, subd. (f)(2).

Distinguish: Amicus Curiae Letters

The procedures discussed above have focused on influencing a court’s opinion. When a case is being briefed, it is already properly before the court that will be deciding it. But amici can also seek to influence whether a case is heard by the court in the first place.[74]See Cal. Rules of Court, rule 8.500, subd. (g).

The Importance of Amicus Letters

In California, the state supreme court usually has discretion to choose which cases it reviews.[75]Cal. Const., art. VI, § 12, subd. (b) [“The Supreme Court may review the decision of a court of appeal in any cause.”], emphasis added; Cal. Rules of Court, rule 8.500, subd. (b) [“The Supreme Court may order review of a Court of Appeal decision . . . .”], emphasis added; but see Cal. Const., art. VI, §§ 11, subd. (a), 12, subd. (d) [automatic appeals to the California Supreme Court in death penalty cases]; Cal. Rules of Court, rule 8.600, subd. (a) [same]. This means that the that a party wishing to change a decision of the court of appeal has to overcome two hurdles: (1) it must convince the supreme court to hear the case in a petition for review, and (2) if the petition is granted, it must convince the supreme court to agree with its arguments.

Convincing the California Supreme Court to hear a case can sometimes be more difficult than winning on the merits. The California Supreme Court receives more than 4,000 petitions for review per year, and it grants a little more than 100 of them.[76]Jud. Council of Cal., Statewide Caseload Trends at p. 8 (2014), available here. Of those grants, many are never actually heard on the merits—they can be “granted and held” or “granted and transferred” without the court ever reaching a decision.[77]Id. at p. 8; Cal. Rules of Court, rules 8.500, subd. (b)(4), 8.512, subd. (d)(1), 8.528, subd. (d).

So, the court hears less than 4% of the cases that people ask it to review.[78]Jud. Council of Cal., Statewide Caseload Trends at p. 8 (2014).

Amicus curiae can help a party by supporting or opposing a petition for review. At this stage, however, the amicus has no right to file a brief in the supreme court.[79]Cal. Rules of Court, rule 8.500, subd. (g)(1). Instead, they must serve and send an amicus curiae letter.[80]Cal. Rules of Court, rule 8.500, subd. (g)(1).

Amicus curiae letters can be important because they signal to the court that the case may be more notable than others.[81]See, e.g., People v. Mooc (2001) 26 Cal.4th 1216, 1220, fn. 1 [the court noting the significance of the numerous letters and briefs it received from amici]. Amicus letters are usually a good idea when offering support for a petition for review, but they might be unwise when a person or group opposes a petition.

The California Supreme Court is primarily concerned with settling important questions of law.[82]Cal. Rules of Court, rule 8.500, subd. (b)(1). So when an amicus letter is received by the court, it demonstrates that the issue could impact more people than just those involved in the case.

Sending an Amicus Letter

The California Rules of Court provide no clear deadline for amicus letters.[83]Cal. Rules of Court, rule 8.500, subds. (e), (g). But if an amicus wishes to send a letter, the letter must be received by the court before it rules on the petition for review.

The supreme court normally has 60 days to rule on a petition for review after the last petition is filed, but it may do so any time before then as well.[84]Cal. Rules of Court, rule 8.512, subd. (b)(1). The court may extend this 60-day deadline by up to 90 days.[85]Cal. Rules of Court, rule 8.512, subd. (b)(1). If the court does not rule on the petition within that time, it is deemed denied.

Obviously, the letter can have no effect if the court has already decided whether to grant or deny the petition. So it is important that any prospective amicus serve and send their letter at the earliest possible opportunity.[86]Cal. Rules of Court, rule 8.500, subd. (g)(1). This usually means sending it shortly after the petition for review is filed.

When sending an amicus letter to the court, the amicus must include an original copy of the letter plus eight copies.[87]Cal. Rules of Court, rule 8.44, subd. (a)(4). It is also a good idea to include one extra copy—along with a pre-stampt, pre-addressed envelope—so the clerk can send it back with a stamp evidencing that the letter was properly received.

Importantly, the letter must include a proof of service at the end, which states, under the penalty of perjury, that the letter was served on all parties or their attorneys.[88]Cal. Rules of Court, rules 8.25, subd. (a), 8.500, subd. (g)(1). The proof of service should specifically list each party on whom the letter was served, along with their service address. A sample proof of service can be found at the end of this letter.

Content of the Letter

The rules of court provide only two requirements for the content of an amicus letter:

It must describe the interest of the amicus curiae; and

All attachments or materials incorporated by reference must comply with rule 8.504, subdivision (e).[89]Cal. Rules of Court, rule 8.500, subd. (g)(2).

Rule 8.504 is a restriction on the type of attachments that may be included with a document.[90]Cal. Rules of Court, rule 8.504, subd. (e). And, with the exception of certain unpublished opinions, the a combined length of those attachments may not exceed ten pages.[91]Cal. Rules of Court, rules 8.504, subd. (e)(2), 8.1115, subd. (c).

In addition to these requirements, the letter should focus on several relevant factors that the court will consider in deciding whether the grant the petition for review:

Whether the case involves a significant legal question that might impact numerous people.[92]Cal. Rules of Court, rule 8.500, subd. (b)(1).

Whether the opinion of the court of appeal below conflicted with other decisions of the court of appeal.[93]Cal. Rules of Court, rule 8.500, subd. (b)(1).

Whether there is a jurisdictional question that the court needs to resolve.[94]Cal. Rules of Court, rule 8.500, subd. (b)(2).

And whether the opinion below was decided without a majority of the panel agreeing on the outcome.[95]Cal. Rules of Court, rule 8.500, subd. (b)(3).

It is usually not enough to argue that a case below was incorrectly decided. The California Supreme Court is not concerned with the results of individual cases. It is concerned with guiding the law in a positive direction.

So, in most cases the best arguments for granting review relate to the importance of the legal issue and any conflict of opinions in the court of appeal. For this reason, it is much more likely that an opinion that was published below will end up being reviewed by the supreme court.

Final Thoughts

Amicus curiae briefs and letters are among the most important ways for people to participate on California’s legal system. They can help direct courts to the important issues, explain the impact specific outcomes might have, and influence justices to answer certain questions.

Given the important interests at stake, the best decision a potential amicus curiae can make is choosing the right lawyer. If you are ahve questions about filing an amicus brief, please feel free to call me at (949) 529-8464 or e-mail me at Kyle@KyleSmithLaw.com.

References   [ + ]

1.Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1177.
2.See Cal. Rules of Court, rules 8.200, 8.360, 8.412, 8.487, 8.520, 8.630.
3.Cal. Const., art. VI, §§ 2, 3; Jud. Council of Cal., Fact Sheet: California Judicial Branch (Jan. 2015), available here.
4.Cal. Rules of Court, rule 8.882, subd. (d) [allowing amicus briefs in the appellate division of the superior court]; see also In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924 [suggesting that amicus briefs might be permissible at the trial level].
5.This article does not cover federal amicus curiae procedures. If you have questions not addressed in this article, or if you are interested in information about federal amicus petitions, you should contact a qualified amicus curiae attorney in your area today.
6.See Paul M. Collins, Jr., Friends of the Court: Examining the Influence of Amicus Curiae Participation in U.S. Supreme Court Litigation, 38 Law & Soc’y Rev. 807 (2004), available here.
7.People v. Cahill (1993) 5 Cal.4th 478, 557, fn. 1.
8.In re Osborne (9th Cir. 1996) 76 F.3d 306, 309.
9.Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
10.In re Marriage Cases (2008) 43 Cal.4th 757, 829.
11.The voters later passed Proposition 8, which restricted the right to marriage again. But in 2015, the Supreme Court of the United States held that the federal constitution protected a right of same-sex marriage. (Obergefell v. Hodges (2015) 576 U.S. ___ [135 S. Ct. 2584].)
12.People v. Savala (1981) 116 Cal.App.3d 41, 60
13.Sierra Club v. San Joaquin Local Agency (1999) 21 Cal.4th 489, 505.
14.Hilton v. South Carolina Pub. Rys. Comm’n (1991) 502 U.S. 197, 202.
15.”The decisions of [the supreme] court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The California Supreme Court has described it as “debatable” whether the opinions of the appellate division of the superior court can ever hold precedential value. (Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 782, fn. 9; see also Velasquez v. Superior Court (2014) 227 Cal.App.4th 1471, 1477, fn. 7; People v. Corners (1985) 176 Cal.App.3d 139, 146.)
16.Cal. Rules of Court, rule 8.1115, subd. (a).
17.Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14.
18.See, e.g., Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1083.
19.Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 405, fn. 14 [“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.”].
20.Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.500, subd. (g).
21.Cal. Rules of Court, rule 8.200, subd. (c)(1).
22.People v. Long Beach (1960) 183 Cal.App.2d 271, 276; In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924.
23.Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.882, subd. (d)(1).
24.Cal. Rules of Court, rules 8.200, subd. (c)(4), 8.882, subd. (d)(4).
25.Cal. Rules of Court, rules 8.200, subd. (c)(2), 8.882, subd. (d)(2).
26.Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.882, subd. (d)(2).
27.Cal. Rules of Court, rules 8.200, subd. (c)(1), 8.212, subd. (a), 8.881, 8.882, subd. (d)(1).
28.Cal. Rules of Court, rule 8.200, subd. (c)(1), 8.882, subd. (d)(1).
29.See, e.g., Legarra v. Federated Mutual Ins. Co. (1995) 35 Cal.App.4th 1472, 1482, fn. 3 [denying amicus curiae’s application as untimely].
30.Cal. Rules of Court, rules 8.200, subd. (c)(3)(B), 8.882, subd. (d)(3)(B).
31.Cal. Rules of Court, rules 8.200, subd. (c)(3)(A)(i), 8.882, subd. (d)(3)(A)(i).
32.Cal. Rules of Court, rule 8.200, subd. (c)(3)(A)(ii), 8.882, subd. (d)(3)(A)(ii).
33.Cal. Rules of Court, rules 8.200, subd. (c)(5). This requirement is not listed in the California Rules of Court for the appellate division of superior courts.
34.Cal. Rules of Court, rules 8.25, subd. (a), 8.200, subds. (c)(1), (c)(4), 8.212, subd. (c)(1), 8.882, subds. (d)(1), (d)(4).
35.Compare Cal. Rules of Court, rules 8.520, subd. (f), 8.882, subd. (d), with Cal. Rules of Court, rule 8.200, subd. (c).
36.Cal. Rules of Court, rule 8.512, subd. (c)(2).
37.Cal. Rules of Court, rule 8.520, subd. (f)(1).
38.Cal. Rules of Court, rule 8.520, subd. (f)(1).
39.Cal. Rules of Court, rule 8.520, subd. (f)(3).
40.Cal. Rules of Court, rule 8.520, subds. (f)(5)–(f)(6).
41.Cal. Rules of Court, rule 8.520, subds. (f)(5).
42.Cal. Rules of Court, rule 8.520, subds. (f)(5)–(f)(6).
43.Cal. Rules of Court, rule 8.520, subd. (f)(4)(A)(i).
44.Cal. Rules of Court, rule 8.520, subd. (f)(4)(A)(ii).
45.Cal. Rules of Court, rule 8.520, subd. (f)(4)(B).
46.Cal. Rules of Court, rule 8.520, subd. (f)(2).
47.Cal. Rules of Court, rule 8.520, subd. (f)(2).
48.Cal. Rules of Court, rule 8.520, subd. (f)(2).
49.See, e.g., People v. Rodriguez (May 3, 2012, No. S187680) ___Cal.4th___ [2012 Cal. LEXIS 4596, at *1] [denying amicus curiae’s application as untimely].
50.Cal. Rules of Court, rules 8.212, subds. (c)(1)–(2), 8.520, subds. (f)(1), (f)(5).
51.See, e.g., Cal. Rules of Court, rule 8.29, subd. (c).
52.Cal. Rules of Court, rule 8.44, subd. (a)(1)(A).
53.Cal. Rules of Court, rule 8.44, subd. (a)(1)(B).
54.Cal. Rules of Court, rule 8.520, subd. (f)(7).
55.Cal. Rules of Court, rule 8.520, subd. (f)(7).
56.Cal. Rules of Court, rule 8.520, subd. (f)(7).
57.Cal. Rules of Court, rules 8.256, 8.516, subd. (a)(2), 8.524; Cal. Const., art VI, §§ 2–3.
58.People v. Brigham (1979) 25 Cal.3d 283, 287.
59.Cal. Rules of Court, rules 8.256, subd. (c)(2), 8.524, subd. (g).
60.Cal. Rules of Court, rules 8.256, subd. (c)(2), 8.524, subd. (g); see, e.g., In re E.J. (July 15, 2009, No. S156933) ___Cal.4th___ [2009 Cal.LEXIS 6924, at *1] [“Amicus curiae’s motion for oral argument is also denied.”].
61.Cal. Rules of Court, rule 8.256, subd. (d)(1).
62.Cal. Rules of Court, rules 8.256, subd. (c)(2).
63.See Cal. Rules of Court, rule 8.256, subds. (b), (d)(1).
64.Cal. Rules of Court, rule 8.256, subd. (c)(2).
65.See, e.g., Misc. Order No. 021115 (4th Dist., Div. 1, Feb. 11, 2015), available here; contra, Cal. Rules of Court, rule 8.256, subd. (c)(2) [“Each side is allowed 30 minutes for argument.”].
66.Cal. Rules of Court, rule 8.256, subd. (c)(2).
67.Cal. Rules of Court, rule 8.524, subds. (a)–(e).
68.Cal. Rules of Court, rule 8.524, subd. (g).
69.Cal. Rules of Court, rule 8.524, subd. (f)(1).
70.Cal. Rules of Court, rule 8.524, subd. (g).
71.Cal. Rules of Court, rule 8.524, subd. (g).
72.Cal. Rules of Court, rule 8.524, subds. (f)(3), (g).
73.Cal. Rules of Court, rule 8.524, subd. (f)(2).
74.See Cal. Rules of Court, rule 8.500, subd. (g).
75.Cal. Const., art. VI, § 12, subd. (b) [“The Supreme Court may review the decision of a court of appeal in any cause.”], emphasis added; Cal. Rules of Court, rule 8.500, subd. (b) [“The Supreme Court may order review of a Court of Appeal decision . . . .”], emphasis added; but see Cal. Const., art. VI, §§ 11, subd. (a), 12, subd. (d) [automatic appeals to the California Supreme Court in death penalty cases]; Cal. Rules of Court, rule 8.600, subd. (a) [same].
76.Jud. Council of Cal., Statewide Caseload Trends at p. 8 (2014), available here.
77.Id. at p. 8; Cal. Rules of Court, rules 8.500, subd. (b)(4), 8.512, subd. (d)(1), 8.528, subd. (d).
78.Jud. Council of Cal., Statewide Caseload Trends at p. 8 (2014).
79.Cal. Rules of Court, rule 8.500, subd. (g)(1).
80.Cal. Rules of Court, rule 8.500, subd. (g)(1).
81.See, e.g., People v. Mooc (2001) 26 Cal.4th 1216, 1220, fn. 1 [the court noting the significance of the numerous letters and briefs it received from amici].
82.Cal. Rules of Court, rule 8.500, subd. (b)(1).
83.Cal. Rules of Court, rule 8.500, subds. (e), (g).
84.Cal. Rules of Court, rule 8.512, subd. (b)(1).
85.Cal. Rules of Court, rule 8.512, subd. (b)(1).
86.Cal. Rules of Court, rule 8.500, subd. (g)(1).
87.Cal. Rules of Court, rule 8.44, subd. (a)(4).
88.Cal. Rules of Court, rules 8.25, subd. (a), 8.500, subd. (g)(1).
89.Cal. Rules of Court, rule 8.500, subd. (g)(2).
90.Cal. Rules of Court, rule 8.504, subd. (e).
91.Cal. Rules of Court, rules 8.504, subd. (e)(2), 8.1115, subd. (c).
92.Cal. Rules of Court, rule 8.500, subd. (b)(1).
93.Cal. Rules of Court, rule 8.500, subd. (b)(1).
94.Cal. Rules of Court, rule 8.500, subd. (b)(2).
95.Cal. Rules of Court, rule 8.500, subd. (b)(3).