Amici will soon have more opportunities to share their views with our North Carolina appellate courts. Currently, our Appellate Rules expressly allow for amicus participation at the merits-briefing stage. N.C. R. App. P. 28(i). Effective November 20, 2023, the potential role for amici will expand to include participation at the petition stage and, in rare instances, at oral argument as well. N.C. R. App. P. 28.1.
The other major change lies in the timing of amicus submissions. Currently, amici have to file their papers by the same deadline as that for the party they support. Going forward, amici will have a 7-day period to file after the deadline of the party they support. That’s similar to the practice in the federal circuit courts. One key benefit: a true “friend of the court” that is not cooperating with any named party will have some time to digest and respond to filings by the parties, even if they have no advance notice of the arguments the party will make.
To accomplish these changes, the Supreme Court has scrapped Rule 28(i) and a few other stray provisions sprinkled throughout the Rules. The Court has replaced those with a new rule—Rule 28.1—that serves as a one-stop shop for amici looking for guidance on how to participate.
Here is a summary of what is changing and what is staying the same:
- Amicus Participation at the Petition Stage. The current rule is silent on how, if at all, amici can weigh in on whether an appellate court should grant a petition. This comes up most often when a party files a petition for discretionary review asking the Supreme Court to review an opinion of the Court of Appeals. We’ve advised in the past on how amici can file papers at the petition stage notwithstanding the lack of express authority in the Rules. But now, the Rules will expressly allow it. N.C. R. App. 28.1(a).
- Amicus Briefs Should Focus on the Issue Before the Court. Historically, there has been some confusion as to what an amicus brief filed at the petition stage should be advocating for. Should that filing suggest who should win on the merits, or weigh in on the narrower question of whether the Court should grant the petition? The new rule explains it clearly: “An amicus curiae’s argument should focus on the question before the court. Therefore, an amicus brief about a petition should address whether the grounds to allow the petition are satisfied . . . .”
- Time for Filing. As noted above, the current rule requires amici to file their motion and brief by the deadline of the party they support. The new rule allows amici to file their papers within seven days after that deadline. N.C. R. App. P. 28.1(b)(4).
- Disclosure Footnote Now Mandatory. The current rule is unclear as to whether an amicus brief completed without help or financial support from an outside source must include a footnote stating as much. The new rule requires a disclosure—whether affirmative or negative—in every amicus brief. N.C. R. App. P. 28.1(b)(3)(c).
- Motion for Leave and Amicus Brief Still Filed Concurrently. That’s the rule now, and it will continue to be the rule going forward. N.C. R. App. 28.1(b)(1). But pay close attention to forthcoming changes to the e-filing site, which will direct amici to file their motion and brief as separate documents.
- No Responses to Amicus Motions. As before, the parties to the appeal may not file any response to an amicus motion. N.C. R. App. P. 28.1(a).
- Parties’ Replies to Amicus Briefs. Currently, parties may file a reply to an amicus brief within 30 days afterwards. While that will remain the deadline for responding to amicus merits briefs, the reply deadline for responding to an amicus petition brief will be shortened to 10 days. N.C. R. App. 28.1(b)(4). The interaction between the 7-day period for amici to file and this response period will keep attorneys on their toes when calculating deadlines. For instance, suppose appellant’s merits brief is filed on day 0, and an amicus brief in support is filed on day 7. Appellee’s merits brief is then due on day 30, and appellee’s or appellant’s reply to the amicus brief is due on day 37. Appellant’s merits reply is then due on day 44.
- Word-Count Limitation at the Court of Appeals Remains the Same. Amicus briefs in the Court of Appeals are currently limited by Rule 28(j) to 3,750 words. That limit stays the same, but has been moved to Rule 28.1(b)(3)(d).
- Amicus Participation in Oral Argument. Currently, an amicus motion to participate in oral argument will only be allowed “for extraordinary reasons.” N.C. R. App. P. 28(i)(7). Going forward, amici need only show “good cause.” N.C. R. App. P. 28.1(c)(1). Also, only those amicus parties who have filed merits briefs may seek to participate in oral argument. They must also explain whether any party has agreed to yield some of their time to the amicus. Any such motion is due within seven days after the clerk sends notice that the appeal has been calendared for oral argument.
- Who Can Be an Amicus Curiae. The only current limitation on who can be an amicus is that “[a]n amicus motion filed by an individual on his or her own behalf will be disfavored.” N.C. R. App. P. 28(i)(5). The new rule contains no such provision, but does warn parties not to hide behind made-up names when filing an amicus brief. N.C. R. App. P. 28.1(d). In other words, don’t file an amicus brief on behalf of “Secret Whistleblower No. 7” or “The Association of Bluebook Enthusiasts.” Note that the rule could be read to discourage the use of d/b/a names when identifying amici. My own view is that this would be a misreading. The point is to tell the Court who you really are. If the name of amicus on file with the Secretary of State is “ABC123 Holdings, Ltd.” but everyone knows the party as “Acme Corp.,” then just include both names in your amicus filings. Simple enough.
Like the old rule, the new rule is silent on whether the consultation requirement of Rule 37(c) applies to amicus motions. But I don’t see any reason why it wouldn’t apply. And, since you’ll now have seven extra days to file your amicus papers, there’s really no excuse for failing to reach out to the parties to seek their positions on your forthcoming filing.
What else do you notice in the new rule? I’m all ears.