Amicus Advocacy Before the Supreme Court of Ohio
By J.H. Huebert, Esq.
Porter Wright Morris & Arthur LLP
Introduction
Preparing an effective amicus curiae
brief is a unique challenge. You’re not a
party to the case, you probably won’t get
to explain yourself in an oral argument,
and the judges or justices don’t have to
consider or even read your brief if they
don’t want to.
Because they are so different from everything else we file,
amicus briefs involve special considerations as you seek to
get the Court’s attention, be a “friend” to the Court as the
“amicus” name suggests, and still effectively advocate on
behalf of your client.
This article will first review in detail the procedural
requirements for filing an amicus curiae brief with the
Supreme Court of Ohio. Then, we will consider the reasons
for filing an amicus brief, and what you can do to make your
brief useful and persuasive to the Court. To inform my
discussion of what makes for effective amicus advocacy
before the Court, I went to the people who would know best:
the justices who presently sit on that Court. Four of them —
Chief Justice Thomas J. Moyer, Justice Evelyn Lundberg
Stratton, Justice Maureen O’Connor, and Justice Judith Ann
Lanzinger — shared their thoughts with me on what they
have found useful and not-so-useful in amicus briefs during
their time on the bench.1
The Procedure of Amicus Practice
The Rules of Practice of the Supreme Court of Ohio allow
filings from an amicus curiae at numerous stages of the
proceedings. In no event is leave of Court necessary to file
as an amicus — making the Ohio Supreme Court more
liberal in this respect than the federal appellate courts and
the Ohio appellate courts, which require either permission
from the parties or leave from the court for amicus
participation. See U.S. Supreme Court R. 37; Fed. R. App. P.
29; Ohio App. R. 17.
Jurisdictional Memoranda. An amicus may file a
jurisdictional memorandum urging the Court to accept, or
Spring 2008 OACTA Quarterly Review
decline to accept, a claimed appeal as of right or a
discretionary appeal. Such a memorandum is required to
conform to the requirements for jurisdictional memoranda
generally, except that the amicus need not attach the Court
of Appeals opinion and judgment entry to its memorandum.
S. Ct. Prac. R. III, Section 5(A). An amicus supporting the
appellant must file its memorandum in support of
jurisdiction by the appellant’s deadline for perfecting an
appeal, or by the appellant’s deadline for filing a
memorandum in support of jurisdiction, whichever comes
later. An amicus memorandum in response to a party’s
memorandum in support of jurisdiction must be filed by the
appellee’s deadline for doing the same. S. Ct. Prac. R. III,
Section 5(B).
Merits Brief. An amicus may file a brief supporting the
appellant, appellee, or neither. Amicus briefs must conform
to the rules for merits briefs generally, except that an amicus
brief need not include the appendix that the parties are
required to file. S. Ct. Prac. R. VI, Section 6(A). An amicus
brief’s cover must identify the party on whose behalf it is
submitted, or indicate that it does not expressly support the
position of any party.
An amicus brief in support of an appellant is subject to the
same filing deadline as the appellant’s brief; an amicus may
also file a reply brief by the appellant’s due date for filing a
reply brief. Similarly, an amicus brief in support of an
appellee is subject to the same deadline as the appellee’s
brief. S. Ct. Prac. R. VI, Section 6(B). Note, however, that if
you want to support the appellee, you need to pay attention
to when the appellant actually files its brief. If the appellant
files before its deadline, your time to file a response (30
days under S. Ct. Prac. R. VI, Section 3(A)) begins to run at
that time. And if you fail to file timely, the Clerk’s office will
refuse to accept your amicus brief. S. Ct. Prac. R. VI, Section
6(B).
A brief that is not in support of either party has the same
deadline as the appellee’s brief. Counsel filing a brief not in
support of either party should make sure that the brief does
not appear to favor the appellant; if it does and it is filed
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past the appellant’s filing deadline, the Court may strike the
brief, as it did in State ex rel. Wellington v. Kobly, 112 Ohio
St. 3d 195, 2006-Ohio-6571, 858 N.E.2d 798, ¶ 13.
Oral argument. An amicus may participate in oral
argument on the merits where two conditions are met: (1)
the Court grants leave, and (2) counsel for the side whom
the amicus supports consents to relinquish some of its time
for argument to the amicus. S. Ct. Prac. R. IX, Section 6(A). A
motion for leave must be filed at least seven days before
oral argument is scheduled. S. Ct. Prac. R. IX, Section 6(B).
S. Ct. Prac. R. IX, Section 6(A), provides that an amicus may
also seek leave from the Court to participate in oral
argument, but “such leave will be granted only in the most
extraordinary circumstances.” This should not provide
encouragement to counsel who really want to argue: no
justice I spoke to for this article could either remember or
imagine circumstances so extraordinary that an amicus
would be given time above and beyond the parties’ time.
The key to arguing (if you must) is to get the relevant party to
give you some of its time.
Circumstances may arise where the Court grants leave for a
party to allot some of its time to an amicus — but then at
argument the party uses both its own and the amicus’s time
responding to questions from the bench. In such cases, I am
told, the Court is likely to grant the amicus at least one
minute of argument anyway, because the time was allotted
and it is hardly the amicus’s fault that the bench questioned
counsel so much. (On the other hand, I have it on good
authority that where counsel for the party is not being
questioned actively, it is the party’s counsel’s responsibility
to timely finish so the amicus can have its time.)
Motions for reconsideration. The Rules expressly bar an
amicus from filing a motion for reconsideration, but if a party
does so, an amicus may file a memorandum in support of
such a motion within the time permitted for filing that
motion. S. Ct. Prac. R. XI, Section 2(C). An amicus may file a
memorandum opposing a motion for reconsideration within
ten days of the filing of the motion. Rule XI, Section 3(B).
(For more on motions for reconsideration, see the article by
my colleague Brad Hughes, “For Your Reconsideration,”
elsewhere in this issue.)
Certification from federal court. Where a federal court
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certifies questions of state law to the Ohio Supreme Court
for resolution, an amicus curiae may file a memorandum
supporting either party — suggesting which certified
questions the Court should or should not address — within
twenty days after the certification order is filed with the Ohio
Supreme Court, subject to the same requirements that the
parties must follow. S. Ct. Prac. R. XVIII, Section 6.
Service on the parties. “When a party or an amicus
curiae files any document with the Clerk . . . that party or
amicus curiae shall also serve a copy of the document on all
parties to the case.” S. Ct. Prac. R. XIV, Section 2(A)(1).
Failure to do so may result in the brief being stricken. Rule
XIV, Section 2(D)(1). The wording of the Rule — which
distinguishes between a party and an amicus — implies that
it is not necessary to serve other amici. (It might be
courteous to do so, but it may not be the best use of
resources, given that all of the briefs are available on the
Court’s website very soon after filing; plus you may not even
know who your fellow amici are until after you have filed.)
Why Write an Amicus Brief?
We have covered how and when you can participate as an
amicus. But why write an amicus brief at all? Presumably
because there is an issue before the Court that is important
to your client. But of course there are parties already
involved in the litigation — who may have been battling for
years before you even became aware of the case — and they
will be filing briefs. What is the point in spending your own
resources doing something that other people are already
taking care of at their own expense?
There are several reasons why you might choose to become
a “friend of the court.”
The parties might not do the job well enough. For one,
it is possible that the party that you support will simply not
do a good enough job of briefing the issues. As we have
seen, your brief is due on the same date as the merit brief of
the party you are supporting, so you may not get a chance to
actually see how good of a job the party’s counsel is doing
unless they file early or, as is sometimes the case, you are in
communication with them and they share a draft. But even
if you do not get an early look at the party’s brief, you may
know the reputation of the attorneys for the parties, and you
can look at the briefs from the lower courts to determine the
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likely quality and substance of their Supreme Court briefs.
Yes, you might file a brief as an amicus that addresses the
same issues and just does a better job than the parties. In
fact, Justice Maureen O’Connor indicated to me that this is
one of the foremost reasons to write an amicus brief, which
can be very helpful to the Court when it is faced with parties
whose counsel are, for whatever reason, not quite up to the
task. Justice O’Connor suggests that your very first step
should be to consider what the other parties have done, and
see where either side falls short. Then you will see where
there may be an opening to make yourself useful. (Again,
though, you will have to either find out from looking at what
the parties did below or communicating with the relevant
party as to what they will file because you share their filing
deadline.)
On the other hand, as discussed further below, the worst
thing you could do in an amicus brief is to merely repeat
what others have said. So if you want to make the same
argument as a party, you need to be sure that you will
provide a product that is noticeably, significantly superior. In
any event, the key is to distinguish yourself as an amicus.
To let the Court know how its decision will affect
non-parties. One would hope that the parties will do their
job on the merits well enough that they do not need you to
come do it for them in an amicus brief.
Even if the parties do a serviceable job in the legal
arguments, though, another important function you can
serve as an amicus is to give the Court a broader
perspective of the potential impact of their decision than the
parties offer. Chief Justice Moyer and Justice Stratton
emphasized to me that the parties to an appeal can get so
involved in the details of their case that they focus tightly on
their own narrow issue and “fail to see the forest for the
trees.” This invokes what Justice Stratton calls the “law of
unintended consequences,” according to which the Court’s
decision may end up having unforeseen effects that the
Court did not think about because no one brought them to
its attention. Amicus briefs, therefore, can place parties’
issues in better context to help the Court understand the
potential ramifications of a decision.
To make public-policy arguments. Of course, it is very
common for parties to file an amicus brief essentially to
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make a public policy argument in support of a desired
outcome.
At today’s Ohio Supreme Court, beware this approach.
Several members of the Court made clear to me that they
will not be swayed by public-policy arguments that they
believe should be made to the legislature, not the courts.
Justice Stratton emphasized that “today the [Ohio Supreme]
Court does not want to make social policy decisions.”
Instead, the Court “exercises judicial restraint and defers to
the legislature on social policy.” She adds that this is not to
say that some, more “activist” courts could find public-policy
arguments to be useful, but generally “not in the Ohio
Supreme Court today.”
In many settings, being passionate for one’s viewpoint would
be an advantage, but Justice O’Connor says that when “the
passion with which the brief was written” comes through in a
brief, this is a strong signal that the brief may not offer
anything of value. It will not do, she says, to simply how
“unjust” it would be for some individual or group of
individuals for the Court to resolve the case in a certain way
— the Court needs to know why the law, not the facts,
demand a particular outcome.
That said, Justice Stratton did see some place for policy
discussions by amici, not to urge the Court to “enact a policy
agenda,” but instead to give the court more context — “to
see why a law was passed, what the legislature intended.”
Another possibility — not suggested by the justices I spoke
to, but which seems to have had some success — is to cite
to policy considerations that are embodied in the Ohio
Constitution. Consider the recent Norwood v. Horney, 110
Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, in
which the Ohio Supreme Court held that the Ohio
Constitution’s protection of private property rights is greater
than that of the U.S. Constitution as explained in the
notorious decision in Kelo v. City of New London, 545 U.S.
469 (2005). In Norwood, the Court discussed at great
length Ohio’s strong public policy — embodied in its
Constitution and even preceding the Constitution — in
support of private property rights. 2006-Ohio-3799, at ¶¶
34-38.
Thus, to the extent advocates want their public-policy
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concerns to receive serious consideration from the Ohio
Supreme Court, they would do well to heed Justice Stratton’s
words and frame them in terms of the legislature’s intent, or
to point to an inviolable constitutional principle.
“The Mr. Ed Rule”
What if you don’t actually have anything to say that’s
different from what the parties say? That is, what if the party
whose side you are on makes the same argument that you
would make, as well or better than you would make it, and
they cite all of the authority you consider relevant? Is it still
worthwhile to file a brief, just to say “me too” and be
counted?
Perhaps surprisingly, Justice Stratton says yes, it just might
be worthwhile to do that, so the Court has a sense of who
has an interest in the case. But she adds that it doesn’t
take much space at all to say “me too.” Both she and
Justice Lanzinger noted that a “one-pager” from an amicus
is fine in such cases. On the other hand, Chief Justice Moyer
said it is generally not worthwhile to file such a brief at all
because the Court already has “hundreds of pages” to
consider. Justice O’Connor agrees, emphasizing that
“quantity is not quality.”
A public-interest attorney that I spoke to regarding this
article, Scott Bullock, told me that his firm, the Institute for
Justice in Washington, D.C., follows what it calls the “Mr. Ed
Rule” in deciding whether to file an amicus brief, regardless
of the court. You may, of course, remember the theme song
from the TV series Mr. Ed, which informs us that although Mr.
Ed is a horse (of course) who has the ability to speak
English, he “won’t ever speak unless he has something to
say.” According to the “Mr. Ed Rule,” so it should be with
you, the amicus advocate: you should expend your scarce
resources only where you have something to say that is
unique, either because of what you say or because of who is
saying it (more on this last point below).
Whether you take the advice of Justice Stratton or follow the
example of Mr. Ed, it seems that the most important thing to
keep in mind is that no justice or judge wants to read a truly
duplicative brief. As Judge Richard Posner of the U.S. Court
of Appeals for the Seventh Circuit has put it:
[I]t is very rare for an amicus curiae brief to do
more than repeat in somewhat different
language the arguments in the brief of the
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party whom the amicus is supporting. Those
who pay lawyers to write such briefs are not
getting their money’s worth.
Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 545
(7th Cir. 2003). One may also appreciate Judge Posner’s
decision denying leave to file an amicus brief — including
extensive comments on worthless, lengthy me-too amicus
briefs — in another case, Ryan v. Commodity Futures Trading
Comm’n, 125 F.3d 1062, 1063-64 (7th Cir. 1992).
Who You are Sometimes Matters
Justice is supposed to be blind, and there can be no
question that with respect to the parties, the Court will give
everyone an equal, impartial hearing.
With an amicus brief, however, things work somewhat
differently. The justices do not have to consider amicus
briefs at all, and when they are faced with stacks of briefs
that can be measured in feet, sometimes not every brief will
get a justice’s full attention — and some justices admitted
that some amicus briefs may not be read at all.
Whose name is on the front cover of a brief could make the
difference in determining whether the justice gets beyond
page one. Several justices told me that they know which
organizations and attorneys tend to produce high-quality
briefs — and, other things being equal, they will choose to
read those over the briefs other amici. Unfair? It might
seem like it — but with limited time, who can blame the
Court for choosing those with a reputation for good work
over those who lack such a reputation?
Of course, this information is of limited usefulness because
you do not know whether you are among those whom the
justices hold in particularly high esteem! But you can at
least note that if you have someone affiliated with your firm
or your client who can lend prestige, experience, or
reputation to your brief, you should take advantage of that,
because it could make the difference in whether your words
receive the consideration you believe they deserve.
What Authorities Should You Cite?
An amicus brief writer has a lot more freedom than an
actual party. The amicus does not need to make a complete
case, but can instead focus only on parts of the case that
CONTINUED
the amicus finds compelling — the other details can be
handled by the parties and other amici.
Part of that freedom includes an increased ability to cite
authorities other than Ohio cases and statutes. Where a
question has not been resolved in Ohio, but has been
resolved in some other states, telling the courts how those
states resolved the question may be highly useful to the
Court. And if a question has not been resolved anywhere
but has been discussed by academics, citation to law review
articles may be appropriate, too — though Justice O’Connor
advises that you not rely solely upon them.
Other, less conventional authorities find their way into
amicus briefs as well. From the justices’ comments about
public-policy arguments, one gets the sense that it would be
best not to wander too far afield. While social-science
evidence has been persuasive to the U.S. Supreme Court on
occasion, resolutely non-activist justices are likely to see
such evidence as more appropriate for legislative hearings
than for judicial proceedings.
Justice Lanzinger suggests that amici not overdo it with the
use of “string cites and tangential authorities” because,
again, the Court’s “reading time is at a premium.”
To be Read, Keep Your Brief Short
and Sweet
The justices offer some additional style pointers that may
seem obvious, but are too often overlooked by amicus
authors.
Chief Justice Moyer reminds you that an amicus brief does
not need to restate the facts of the case — again, the
message is that the Court does not want more reading
material than necessary. Besides, the Court will already be
fully familiar with the facts by the time it gets to your amicus
brief. Justice Lanzinger adds that the Court appreciates “an
amicus brief that is BRIEF!”
Amicus Acknowledgement
It is rare for the Court to explicitly acknowledge amicus
arguments in an opinion — so it is best not to gets one’s
hopes too high. Still, it can happen. For example, an amicus
could not do much better than the Ohio Attorney General did
as an amicus in State v. Jones, the first sentence of which is:
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“We adopt in large measure the posture of amicus curiae
Attorney General.” 71 Ohio St. 3d 293, 296, 1994-Ohio-
162, 643 N.E.2d 547. On the other hand, sometimes the
Court notes amicus arguments only to reject them. See,
e.g., State v. Williams, 103 Ohio St. 3d 112, 114, 2004-
Ohio-4747, 814 N.E.2d 818, ¶¶ 10-15. Indeed, the
gratuitous creation of undesirable precedent is a risk amici
take when they raise arguments that differ from those of the
parties.
Conclusion
Every amicus brief is different, because different amici have
different goals, and the format allows counsel a great deal
of freedom to present your ideas the way you want to
present them. Following the Rules and heeding these ideas
and pointers from the justices should provide you at least
with a starting point as you prepare your effective amicus
brief.
COLUMBUS/1403573 v.01
Endnotes
1
I also received helpful comments from a former justice of the
Supreme Court of Ohio, Judge Deborah L. Cook, now of the United
States Court of Appeals for the Sixth Circuit. I am also grateful for
the input of Judges Ronald Lee Gilman, Julia Smith Gibbons, and
John Rogers, also of the Sixth Circuit, as well as Attorney Scott
Bullock of the Institute for Justice and Attorneys Kathleen M.
Trafford, David S. Bloomfield, Jr. and Brad Hughes at Porter Wright
Morris & Arthur in Columbus. All views expressed, except where
attributed, are my own.
J. H. Huebert is an associate at Porter Wright
Morris & Arthur LLP in Columbus, a former law clerk
to Judge Deborah L. Cook of the U.S. Court of
Appeals, Sixth Circuit, an adjunct faculty member of
the Ludwig von Mises Institute, and vice chair of
OACTA’s Appellate Law Committee. He was an
author of OACTA’s amicus briefs before the Ohio
Supreme Court in Arbino v. Johnson & Johnson and
Groch v. General Motors Corporation.
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