Good article at Slate by an ex-SCOTUSblogger, advocating for more “liberal group” amicus participation at the cert stage in cases before the U.S. Supreme Court, “The Early Brief Gets the Worm” —

When left-leaning groups ignore an opportunity to tell the court tohear the cases most likely to be decided in their favor, they are doingtheir causes a disservice.

The article also describes the U.S. Supreme Court’s caseload, and the daunting prospect of having your case be one of the select few that gets to make history that Term (9,000 cert petitions a year, 69 grants: you do the math). 

The author’s call for appellate advocacy by amici curiae(“friends of the court”) at all stages of important cases before theU.S. Supreme Court is equally valid in Hawaii appellate courts,especially now that the Intermediate Court of Appeals is the court offirst appeal and the Hawaii Supreme Court is a discretionary reviewcourt.  See this post for more. 

Amicus briefs are those filed by individuals or groups whoare not parties to the litigation, but who have some insight,expertise, or stake in the outcome, such that the court would beassisted by their input.  Common examples are litigants in similarsituations whose cases may be affected by the outcome in the case beingconsidered, industry groups potentially affected by the rule of lawthat may be established, or lawmakers or academics who have some interest in providing the court with their views on the case. So much of the litigation currently instituted is of public orquasi-public interest, and often the judicial forum is just another”front” is what may be a political “war” (as the Slate article phrases it). Recent examples from Hawaii courts include:

  • The UFO Chuting case, where a federal district courtstruck down the State of Hawaii’s limitations on navigation in publicwaters off Maui designed to protect humpback whales, because the statehad no authority to interfere with federally protected navigation.Hawaii’s congressional delegation subsequently quietly inserted in amassive appropriations bill a provision that wiped out the districtcourt’s ruling, and when the court reconsidered the issue,it upheld thestate’s regulation. 
  • The “Kauai Property Tax” case,where elected government officials from one branch of county governmentsued other friendly officials to invalidate voter-approved property taxlimitations in the county charter.
  • The recent decision in the U. of Hawaii regents case, in whichstate legislators sued the governor over her use of holdoverappointments to the U.H. Board of Regents. See Charley Foster’sthinking about this decision for more analysis here.

These type of cases would be assisted by amicus participation, ifonly to provide the reviewing court with context and a broader view ofwhere the case it is considering may fit in the larger picture. Amicusbriefs may also bring to the court’s attention critical arguments or precedents not raised by the parties, or scientific, historical,technical, or specialized information that the parties do not have aninterest in raising (or space for in their briefs). The briefs areoften authored by attorneys who are familiar with thelegal issues, and who may work pro bono or “low bono” due to theirinterest in the outcome. 

We’ve represented amicus parties in many cases before the U.S.Supreme Court, the Ninth Circuit, and the Hawaii appellate courts, including the recent U.S. Supreme court decision in the Navy sonarcase, Winter v. Natural Res. Def. Council, No. 07-1239 (Nov. 12, 2008); the “beach accretion” case currently pending in the ICA, Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175; the UFO Chuting case mentioned above; the Supreme Court’s regulatory takings case on Hawaii’s gas station rent control law, Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005); and the infamous eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005).

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