Proposed New Maryland Rules for Amicus Briefs

By Michael Wein

Today, the Rule’s Committee meets to discuss and likely adopt various proposed Amendments, some directly impacting Maryland appeals. The link, (particularly pages 14-20), is located at http://www.mdcourts.gov/rules/agenda/agenda.pdf and the Reporters Note summarizing these changes for appeal Briefs is reproduced below. The basic summary is that for the first time, Maryland appears keen to enact a Rule Change to have Amici Curiae (“Friend of the Court” Briefs, usually by interest groups), for the most part, adopt much of the very influential and formal Supreme Court Amici Curiae Practice, with much more specificity on times for filing, and the extent to which there can and should be Amici involvement in existing appeal cases. There are some differences from Supreme Court practice, but for right now the Proposed Rule changes a mostly vague general guideline rule governing Amicus Briefs, to more formal time and content requirements in order to file and be accepted by the Court for consideration. (This is not a final step, as the Court of Appeals of Maryland would have to approve any Rules Committee recommendations, Chaired by Former Maryland Court of Appeals Judge Alan Wilner, after public comments and a hearing).

Second, at least on the appeal front, is that there appears to be a modest change in construing the date of entry of judgment and thereby time for filing appeals, based on the ‘date of entry’ of the Final Judgment. There’s been some debate on appeals being untimely (even premature) based on the Clerk properly docketing the final judgment. This appears to be a response to some very complicated appeals based on this issue, the now widespread use and availability of the Maryland Judiciary Casesearch docketing system, all perhaps with an eye towards regular electronic filing in a few years.

A quick side observation, is that the Reporter’s note below, seems to suggest that the page limit of Certiorari Petitions under Md. Rule 8-303 with the Court of Appeals will be reduced from 25 pages to 15 pages as part of today’s hearing. Although that may be elsewhere on the horizon, I don’t see that in the actual proposed Rules Amendments today, (or in a prior version), and so this does not appear to be accurate, and may have been from an earlier version of the Note. Nevertheless, this may indicate that the Court of Appeals is being asked (or symbiotically asking) that the Certiorari Petitions it receives, further strive to be concise.

REPORTER’S NOTE
The Court of Appeals has requested that the Rules Committee propose revisions to Rules pertaining to amicus curiae briefs. Of particular concern are timing issues related to the filing of amicus briefs in “bypass” cases, i.e., cases in which the Court of Appeals, having reviewed an appellant’s brief that was filed in the Court of Special Appeals, issues a writ of certiorari on its own initiative. The current Rules could be interpreted as precluding the filing of an amicus brief in support of the appellant if the amicus brief had not already been filed in the Court of Special Appeals.

Proposed new section (c) of Rule 8-511 addresses this problem by tying the time for filing all amicus briefs on the issues before the Court to the time for filing the principal brief of the appellee and by the addition of the phrase, “unless
the Court orders otherwise.”

Additional amendments to Rule 8-511 substantially rewrite the Rule. In section (a) the four bases for authority to file an amicus brief are listed. New to the Rule are the authorization to file upon written consent of all parties and subsection (a)(2), which authorizes filing by the Attorney General in any appeal in which the State of Maryland may have an interest. The other two bases for authorization to file are upon request by the Court and upon the Court’s grant of a motion filed under section (b) of the Rule.

Subsection (b)(1) specifies the content of a motion requesting permission to file an amicus brief. A new provision requires the movant to state whether the movant requested permission of the parties to file the amicus brief and, if not, why not. Another new provision recognizes that occasionally a person may wish to file an amicus brief on the issue of whether the Court of Appeals should grant certiorari. Subsection (b)(1)(F) requires a person who moves for permission to file such a brief to state in the motion whether the movant also seeks to file an amicus brief on the issues before the Court if the writ is granted.

Subsection (b)(2) requires that the movant attach a copy of the proposed brief to two of the copies of the motion requesting permission to file the brief. Subsection (b)(3) requires service of the motion and proposed brief on all parties. If the motion is granted, subsection (b)(4) requires the amicus to file the additional number of copies required by Rule 8-502 (c).

Subsection (b)(4) also contains a “relation back” provision –that the brief is regarded as having been filed on the date the motion was filed. Section (c) contains provisions pertaining to the time for filing an amicus brief, as well as an express authorization of the practice of filing an amicus brief on the issue of whether the Court of Appeals should issue a writ of certiorari or other extraordinary writ.

Section (d) requires compliance with Rules 8-503 and 8-504. Section (e) carries forward the provision of current Rule 8-511 (c), prohibiting oral argument by an amicus unless permission is granted by the Court for extraordinary reasons. Added to the section are comparable prohibitions against the filing of a reply brief or a brief supporting or opposing a motion for reconsideration. Section (f) is new. Because the time for filing an amicus brief is keyed to the time for filing the appellee’s principal brief, it is possible that new issues are raised in the amicus brief that the appellee has not had the opportunity to brief. For the limited purpose of addressing those new issues that are not substantially in support of the appellee’s position and are not fairly covered in the appellant’s principal brief, the appellee is permitted to file a reply brief within ten days after the amicus brief is filed.

Amendments to other Rules pertaining to certiorari and to amicus briefs also are proposed.

Amendments to Rule 8-301 expressly state the Court’s authority to issue a writ of certiorari on its own initiative.

Amendments to Rule 8-303 add to the requirements of a petition for a writ of certiorari a particularized statement of why review of the issues presented is desirable and in the public interest. The amendments also decrease from 25 to 15 the maximum page limit for a petition, unless the Court grants permission to exceed the maximum.

Amendments to Rule 8-503 (c) divide the section into four subsections, use the federal terminology “principal brief” to describe the brief of a party that is not a reply brief or a brief on the issue of whether a writ of certiorari or other extraordinary writ should be issued, and set a page limit of 15 pages for an amicus brief filed in the Court of Special Appeals and 25 pages for an amicus brief filed in the Court of Appeals.