New Mexico adopts disclosure requirement for amicus curiae briefs

The New Mexico Supreme Court has announced a new disclosure requirement for amicus curiae briefs in the state appellate courts.

Effective on December 31, all amicus curiae briefs “shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution.” You can view a redline version of the amendment to New Mexico Rule of Appellate Procedure 12-215(F) here.

As the Appellate Rules Committee’s Commentary explains, the new language is modeled after U.S. Supreme Court Rule 37.6, and is not intended to deter the filing of any amicus brief, but to increase transparency in amicus curiae filings. The concern that this rule addresses is that parties may fund amicus briefs as an end run around the page limits for appellate briefs, or to create the appearance of widespread support for a party’s position. Certainly, if an organization does not feel strongly enough about a case to fund its own amicus brief, that is something the appellate courts should be able to consider in evaluating the brief’s credibility.

Please note that the new rule is also not meant to deter coordination between a party and an amicus curiae who supports that party’s position. In fact, that sort of coordination is valuable to ensure that the appellate courts do not receive “me too” amicus briefs which merely state the party’s position. An amicus curiae brief is most valuable when it provides arguments or insights that a party’s brief does not or cannot provide.

In the interest of full disclosure, I should say that I proposed this amendment to the Appellate Rules Committee. I believe that the disclosure requirement will promote the integrity of the appellate process, and am happy that our Supreme Court has seen fit to adopt it.

 

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