Effective Amicus BriefsLisa Soronen

State and Local Legal Center

lsoronen@sso.org

The International Municipal Lawyers Association

San Diego, CA

IMLA Amicus Program

• Do you know that IMLA has an amicus program?

• Do you know how it works?

IMLA Amicus Program

• In existence since IMLA’s founding in 1935

• Files/joins 12-15 briefs a year

• Works at all levels—Supreme Court merits and petition stages; before federal

and state appellate courts

• IMLA is a “cert.-stage champion” organizations!

IMLA Amicus Program

• Case must address an issue that could have a significant impact on a substantial number of local governments either directly or as precedent

• For other than merits stage Supreme Court cases, IMLA will only file in support of a member and in some cases if requested by a state league or association that is a member

• The IMLA legal advocacy committee is made up of 7 members appointed by the IMLA President

• Majority must agree to file

IMLA Amicus Program

• Members bring cases of interest to the attention of IMLA

• IMLA amicus program is run by Amanda Kellar (akellar@imla.org)

SLLC

• Who has heard of the SLLC?

SLLC Trivia

• Started in 1983

• With an auspicious beginning! (Powell & Rehnquist)

• Has filed about 350 amicus briefs to the U.S. Supreme Court

Who Are SLLC Members?

• Members—B7+IMLA+GFOA

• Local

• International Municipal Lawyers Association

• National Associations of Counties

• National League of Cities

• United States Conference of Mayors

• International City/County Management Association

• Government Finance Officers Association

• State

• National Governors Association

• National Conference of State Legislatures

• Council of State Governments

What Does the SLLC Do?

• Files amicus briefs in the U.S. Supreme Court in cases affecting state and local

government

• About 8-10 a year

• Conducts moot courts for attorneys representing state and local government

before the Supreme Court

• Is a resource to state and local government regarding Supreme Court

litigation

No Certiorari Petitions Unfortunately

• Only Supreme Court merits cases (no circuit court work)

• The SLLC is just me!

• IMLA does cert petitions

How Does the SLLC Decide to Get Involved

in Cases?

• I follow SCOTUSblog and look at every case the Court accepts for review

• I inform the members about every case on the Court’s docket affecting state

and local government

• If three organizations are interested in participating, a pro bono brief is

written

• If two organizations veto a case the SLLC will not file a brief

IMLA & SLLC Brief Writers

• Briefs are generally written pro bono by a variety of attorneys

• IMLA members

• Professors

• Supreme Court specialists

• Subject matter experts

SLLC as a Supreme Court Resource

• I can help:

• Decide whether filing a cert petition is a good idea

• Review cert petition and/or merits brief

• Get amicus support for a cert petition--IMLA

• Hire Supreme Court counsel if the Court accepts your case

• Work with the Solicitor General’s office to convince them write a brief on your side

• Attend a Supreme Court oral argument on your next trip to Washington

• Gossip about the Justices and cases

• Come to your state and present on the Supreme Court

Other Supreme Court Resources

• Supreme Court webinars

• Review (July)

• Preview (September/October)

• Mid-term Review (February)

• Supreme Court articles

• Review (July)

• Preview (September/October)

• Mid-term Review (February)

• More info available on the SLLC’s website

Current Landscape for SCOTUS Amicus Briefs

• Everyone files them

• 800 filed in the 2014-2015 term

• Average of 12 per case

• Police organizations don’t file regularly

• At least 25% of local government cases involve police issues

• Member benefit/source of pride/way to be effective (maybe) at the national

level

Current Landscape for SCOTUS Amicus Briefs

• All the Justices care (to varying degrees) about the practical implications of cases

• Justice Breyer well-known for his pragmatism

• Read United States v. Riley

• Amicus briefs are the only defense against well-funded opponents

• Too little, too late but better than nothing

• Supreme Court merits work has shrunk in ½ over 30 years

• SCOTUS amicus work remains prestigious

Current Landscape for SCOTUS Amicus Briefs

• On some issues state and local governments will file alone with many or no amicusbriefs on the other side

• Qualified immunity, First Amendment

• Supreme Court specialists

• Are amazing but don’t have technical expertise

• Make a point the party does not have time, expertise, political capitol, etc. to make

• Merits briefs and amicus briefs can be a bit at odds

• Weak merits counsel

What Makes An Amicus Brief Effective?

• This is the brief I want to write (and the case I don’t want to lose)

• The other side says X statute is unconstitutional (or should be interpreted a particular way)…

• We say…

• X statute is very common

• Policy reasons support our position that X is constitutional

• If X is unconstitutional so will be A, B, and C

• Not every case is a match for these arguments

Patel v. City of Los Angeles

• The SLLC and IMLA filed that amicus brief in the above case

• Issue: do warrantless hotel registry ordinances violate the Fourth Amendment

• We lost!

• Justice Scalia (Justice least likely to cite an amicus brief) wrote:

• In all, municipalities in at least 41 States have laws similar to Los Angeles’s, Brief for

National League of Cities et al. as Amici Curiae 16–17, and at least 8 States have their own

laws authorizing register inspections, Brief for California et al. as Amici Curiae 12–13.

What Makes An Amicus Brief Effective?

• There is something so much bigger going in this case than what is obvious

• Direct Marketing Association v. Brohl

• Ruling in X way will have really bad, not obvious at all, unintended

consequences

• Burwell v. Hobby Lobby

• We are trying to do the right thing here—please don’t get in our way

• Gobeille v. Liberty Mutual Insurance Company

What Do SCOTUS Clerks Say?

• Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs

• Kelly J. Lynch

• Journal of Law & Politics, Winter, 2004

What Do SCOTUS Clerks Say?

• When are briefs most useful

• Highly technical and specialized area of the law

• Poor merits representation

• Organizations and writers matter

• Prominent academics and Supreme Court specialist rate equally

• Fewer briefs filed=more attention to briefs filed

What Do SCOTUS Clerks Say?

• Most interested in briefs (in this order) from the US, the states, and local

governments

• Want collaboration and coordination

• Like social science data (not strongly)

What Do SCOTUS Clerks Say?

• Don’t repeat

• Keep it short

• Must be well-written

• Name matters

Want Help from a Big Firm in a Circuit Court

Case?

• Offer them oral argument time (if you can)

Rise of Supreme Court Clinics

• Phenomenon is about 10-15 years old

• Don’t be afraid of them

• Clinics are typically run by a prominent Supreme Court specialist who may or may not now be a full-time law professor

• Most clinics will do some amicus work; not all work exclusively in the Supreme Court

• Interested in cert petitions

• Will work for free; some (but not all) will want the SCOTUS oral argument

• IMLA has worked extensively with the Emory Supreme Court Advocacy Program