Is the New York State Court of Appeals Still "Friendless?" an Empirical Study of Amicus Curiae Participation

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INTRODUCTION

Amici--because they have a wider perspective, or simply a different perspective--can be of inestimable value to courts in discharging their responsibility that extends beyond the litigants. An amicus can alert the court, as the parties perhaps cannot or would not wish to, that a large issue lurks in an appeal; that a case of seeming insignificance has potentially wide ramifications and will likely have major impact when a ruling is applied in other factual settings; or that a case of obvious major significance could conceivably have wholly unanticipated effects. Amici can sensitize the court--when it may be irrelevant to the litigants, whose objective is to win--to the appropriateness of narrowing or limiting a holding, and with other factual situations in mind they can suggest alternate rationales for achieving results urged by the parties.

Judge Judith S. Kaye (1989) (1)

The New York State Court of Appeals decides a wide range of significant statewide issues which have long-lasting effects on the citizens of the State of New York. Similar to the United States Supreme Court in the federal arena, the primary function of the Court of Appeals is "declaring and developing an authoritative body of decisional law for the guidance of the lower courts, the bar and the public." (2) During any given year, the court decides appeals involving state and federal constitutional law, administrative law, products liability law, environmental issues, zoning matters, rent cases, criminal cases, and tort issues, among many others. Based on this amount of authority, one would expect that non-parties would choose to advocate before the court if there was any mechanism to influence the decision-making process. In fact, there is such a mechanism available: the amicus curiae brief. Through this form of participation, non-parties to appeals are able to engage the court by submitting briefs as amicus curiae, or as a "friend of the court." (3) As of 1989, however, the court has been notably "friendless." (4)

In 1987, the Court of Appeals decided 369 appeals of which only thirty involved amicus briefs. (5) The U.S. Supreme Court, by contrast, consistently decides individual cases in which dozens of amicus briefs are filed. (6) In fact, in 1989, the Court heard one case, Webster v. Reproductive Health Services, (7) in which more amicus briefs were filed than during the entire term of the New York State Court of Appeals. (8) Over the past fifty years, the federal court system has seen a clear and rapid influx of amicus curiae submissions. (9) Whereas between 1946-1955 the percentage of cases decided with at least one amicus brief was only 23% in the U.S. Supreme Court, that number jumped to over 85% of cases between 1986-1995. (10)

The disparity in the number of filings becomes even more surprising considering the Court of Appeals' policy towards amicus briefs. Not only have individual judges encouraged the practice, (11) but the court has expressed interest in amicus filings by amending its rules to enable it, sua sponte, to invite submissions. (12) In December of 1988, the court even added a preamble to its weekly list of new filings which encourages the submission of amicus briefs. (13) Moreover, the court overwhelmingly grants motions for amicus curiae relief. (14)

Not everyone would identify the lack of amicus curiae participation in the court as a negative. Perhaps unsurprisingly, judges have not hesitated at expressing their opinions concerning the value of amicus briefs. Judge Posner has lamented that the "vast majority" of amicus curiae briefs "have not assisted the judges," and are "an abuse" of non-party participation. (15) Justice Scalia, in reference to several amicus curiae submissions in one case, noted that "[t]here is no self-interested organization out there devoted to pursuit of the truth in the federal courts." (16) Justice Alito, however, has argued that "an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court's friend. …