Posted: April 8, 2021
Rules of Appellate Procedure – Comment Period Closed May 23, 2021
URAP015. Petitions for review in tax cases. Amend. The proposed amendments to Rule 15: (1) remove the statutory citations in 15(a) and 15(c); (2) rework the language in 15(c); and (3) clean up other language for clarity and consistency.
URAP025. Amicus curiae briefs. Amend. The proposed amendments to Rule 25: (1) modify the language throughout to rule to mirror the federal rule; (2) incorporate the language from Rule 50 regarding amicus curiae briefs; (3) allow an amicus curiae brief to be filed without leave of court if all parties have consented to its filing; (4) provide a word count length requirement; (5) change the due date from 21 days to 14 days in 25(d); and (6) clean up other language for clarity and consistency.
URAP050. Response; reply. Amend. The proposed amendments to Rule 50: (1) remove all mention of amicus curiae briefs and incorporate that language into Rule 25; (2) replace the phrase “subject index” with “table of contents” in 50(b); (3) change the due date from 14 days to 7 days in 50(d); (4) incorporate Standing Order 11; and (5) clean up other language for clarity and consistency.
The inclusion of “a guardian ad litem” among the list of entities that may file an amicus curiae brief without consent of the parties or leave of court is both vague and over-inclusive.
The proposed rule is vague because it does not specify whether a private guardian ad litem is also included in this rule.
The proposed rule is over-inclusive by permitting a guardian ad litem to file an amicus curiae brief without consent of the parties or leave of court in an appeal that does not involve a child welfare proceeding.
At present, neither Rule 29 of the Federal Rules of Appellate Procedure nor Rule 37.4 of the U.S. Supreme Court Rules permits a guardian ad litem to file an amicus curiae brief without consent of the parties or leave of court in any appeal.
The U.S. Supreme Court recently took to task a Ninth Circuit Court of Appeals panel that “named three amici and invited them to brief and argue issues framed by the panel” sua sponte. According to Justice Ginsburg writing for a unanimous Court, such a “takeover of the appeal” departs from the “party presentation principle”. U.S. v. Sineneng-Smith, 140 S.Ct. 1575 (2020).
It’s bad enough that indigent and pro se respondents to state petitions usually lack resource parity on appeal. The inclusion of a guardian ad litem — usually an attorney functionally unaccountable to the executive or legislative branches of government — among the list of parties permitted to file an amicus curiae brief without consent of the parties or leave of court will lead to further piling on by “passive instruments of government[,]” Sineneng-Smith at 1579 (quoting U.S. v. Samuels, 808 F.2d 1298, 1301 (CA8 1987), especially in cases having no meaningful nexus with a child welfare proceeding.
Please narrow the proposed rule by adding after “a guardian ad litem” “, if a guardian ad litem participated as trial counsel,” or making a functionally-equivalent change.