Practice area:

The Maine SJC’s current attitude towards amici briefs seems to be that you can be seen, but not heard, although given the lack of transparency as to the criteria it applies on this issue, it is difficult to make generalizations – which is part of the problem.

In keeping with more recent practice in inviting amici briefs, the SJC has asked for amici briefs on a double jeopardy issue.  (Latest News and Announcements page and latest Invitation to File Amicus Briefs)  As I’ve blogged on before, I think this is great.  Amici briefs can alert the court to the implications of rulings and give them different viewpoints from different constituencies, and can, at times, assist in the legal briefing of the arguments as well.  Given the inability to know what is before the SJC because of no electronic (or other) way to search pending appeals, the more the SJC tells the public what’s up through such invitations, the better.  The Massachusetts SJC does this for a big chunk of the appeals before them, and good for our SJC for inching in that direction.  With the number of appeals dropping in Maine, and with the Maine SJC’s recent experience when they invite briefs (as I understand it) not resulting in an avalanche of loopy reading material, this looks like a very positive move.  Thumbs up to our SJC.

Do not, however, think that this means that you as an amici will be allowed to participate in the oral argument.  M. R. App. P. 9 says participation is allowed only in “extraordinary” situations.  So even if the side you are supporting is willing to share its time with you, the Court can and has rejected such participation.  We recently experienced such a rejection submitting an amicus brief on behalf of the ACLU of Maine and moving to share the appellant’s time (with the appellant’s consent and no position taken by the appellee).

I see two difficulties in the Court’s current practices on this issue as I understand it.

The first is predictability and transparency.  What is “extraordinary”?  There is no guidance in the rule.  Because there is no committee and vetting of appellate rules, there’s no record of any discussion with the bar or other public explanation from the Court as to the criteria it applies.  The order denying participation gives no explanation. In the past, I’ve had the motion to participate granted and I’ve had it denied, and I couldn’t tell you why.

I was surprised about this particular denial.  It was the ACLU of Maine, and it concerns an important constitutional issue relating to the Maine Constitution on an issue upon which other jurisdictions interpreting their own constitutions are split.  But my broader worry is the consequences of not knowing when one of these motions will be granted or denied, or why.  As an administrative matter, doesn’t this just mean you have to keep asking because you don’t know what the criteria are?  Also, unsurprisingly, this lack of illumination leads to personality-driven anecdotal conjecture, as has been expressed to me.  This can’t be what an institution promoting the rule of law would want to incite.

The second problem with denying oral argument for amici is it discourages pro bono amicus work, and it forecloses an avenue for newer lawyers to get argument time with the SJC.  In this instance, for example, as expressed in our motion, the young lawyer who had worked on this matter pro bono would have argued for the ACLU of Maine.  I’ve blogged on the shrinking opportunity for newer lawyers to argue, and how some courts, concerned, are addressing this situation by creating programs in which newer lawyers willing to take on pro bono efforts are guaranteed an argument to combat this problem.  One would think that the SJC would share concerns on this front, too.

So to me the SJC’s practice on this issue is a headscratcher.