The New Mexico Supreme Court’s Rules of Appellate Procedure Committee (of which I am a member) has proposed a change to Rule 12-215 that would require an amicus curiae to disclose when a party to the case, or the party’s attorney, has written any part of the amicus brief, or made a monetary contribution intended to fund the amicus brief. You can find the proposed amendment and committee commentary here.
The Supreme Court of the United States, and the federal courts of appeal, enacted a similar disclosure requirement several years ago. See U.S. Supreme Court Rule 37.6; Fed. R. App. P. 29(c). The disclosure requirement was motivated by several concerns:
- that parties might pay for amicus briefs as a means of circumventing the page limits on appellate briefs;
- that parties might use amicus briefs as a means of creating the appearance of public support for a party’s position, or concern about a court’s decision;
- that the disclosed information about who has funded or written an amicus brief could help judges comply with their recusal obligation; and
- the disclosure of who paid for or participated in writing an amicus brief could assist appellate judges and justices in assessing the credibility of amicus’ views. After all, if an amicus is willing to pay for a brief itself, that is at least some indication that the amicus genuinely cares about the issue, as opposed to allowing its name to be used as a conduit to express the views of a party.
Note that the proposed rule change would not require disclosure of coordination or discussion between parties and amicus curiae, but is solely intended to preserve the integrity and transparency of amicus practice in New Mexico’s appellate courts. (Full disclosure: I proposed this amendment to the Committee, and am strongly in favor of it.)
If you would like to comment on the proposed amendment, whether you’re in favor or opposed, I encourage you to leave a comment online at this link. The deadline for submitting comments is May 29, 2013.