There is an unwritten rule regarding the Supreme Court of North Carolina’s willingness to consider amicus input: Amicus briefs are welcomed during briefing on the merits, but the Court does not want to read amicus briefs supporting or opposing the granting of discretionary review. Does the same rule apply to amicus motions at the petition stage?
In at least two recent cases, the Supreme Court has granted a motion for leave to file an amicus brief when that motion was submitted alongside the petition for discretionary review. (Disclaimer: I represent several amicus parties in one of the two cases.) In each case, the motion that was granted set forth a preview of the types of merits arguments that the amicus intends to offer, but did not include the amicus brief itself as an attachment. Although these motions do not expressly ask the Court to grant the petition for review, the parties certainly believe it is valuable to have the motions pending before the Court while the Court is deciding whether to grant the petition in the first place. After all, one statutory pathway to having discretionary review granted is to show that “the subject matter of the appeal has significant public interest.” N.C. Gen. Stat. 7A-31(c)(1). When businesses and trade groups spend the time and money to get involved in litigation as amici, this can send a powerful signal that the case involves issues of “significant public interest.”
On Friday, the Court gave the bar an implicit tutorial on how to represent amicus parties properly at the petition stage. In considering a pending petition for discretionary review and four pending motions for leave to file amicus briefs in Commscope Credit Union v. Butler & Burke, LLP, the Court did something very interesting. The Court granted the petition for discretionary review and granted one of the four motions for leave to submit an amicus brief in support of the petitioner’s merits case (should the petition be granted). The Court dismissed as moot, however, the three other motions for leave to file amicus briefs.
Why the disparate treatment of the amicus motions? All four of the motions have similar content–arguments suggesting the Court of Appeals decision is wrong, arguments about the unintended consequences of the decision, and arguments about why the case is important enough to merit review. But each of the three motions that were dismissed included a full amicus brief as an attachment, while the motion that was allowed did not. The Court may have reasoned that the briefs, filed at the petition stage, were in essence filed in support of the Court’s granting the petition. Once the Court decided to grant the petition, those briefs and the cover motion were “moot.” The motion for leave filed without a brief, however, was arguably simply asking for permission to file a merits brief should the petition be granted. The Court’s decision to grant the petition, far from mooting the motion for leave, made that motion finally ripe for decision.
In substance, there may be little difference between one prospective amicus filing a three-page motion with a twelve-page brief attached as an exhibit and another prospective amicus simply filing a fifteen-page motion. But the Court may be sending a signal that it prefers the latter format. Take heed.