G. BRIEFS

216

Rule 31: Brief and Oral Argument of an Amicus Curiae.

(a) Leave or Request of Court Necessary.  A brief of an amicus curiae may be filed only by leave of court granted on motion or at the request of the appellate court. A brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state how a brief of an amicus curiae will assist the appellate court.

(b) Form; Time; Conditions.  A brief of an amicus curiae shall follow the form prescribed for the brief of an appellee. The court shall fix the time and conditions for the filing of the amicus curiae brief.

(c) Oral Argument.  An amicus curiae may participate in oral argument only by leave of court granted on motion or at the request of the appellate court.

(d) Costs of Amicus Curiae Filing.  The court in its discretion may assess the costs of filing the motion for leave to file an amicus curiae brief and all related filings against the amicus curiae, to be paid to the Appellate Court Clerk at the time of entry of the order granting or denying the motion.

Advisory Commission Comments.

This rule follows the practice of requiring leave of court before an amicus brief may be filed. In addition, this rule permits the appellate court on its own motion to request the filing of an amicus brief. Unlike Federal Rule of Appellate Procedure 29, this rule does not permit the filing of an amicus brief by consent of all of the parties, since generally such consent is so rarely granted as to make the provision meaningless. Moreover, most amicus briefs are in fact a type of adversary intervention rather than objective assistance to the court. Accordingly, subdivision (a) requires an amicus to identify the amicus's interest as well as to state how the amicus brief will assist the appellate court. However, if the court requests an amicus brief, it may obtain the outside objective assistance that an amicus in theory renders. This rule also needs to be construed in conjunction with Rule 32 of these rules, which permits the Attorney General of this state to participate by brief and argument in certain specified circumstances.

Advisory Commission Comment [2007].

New Rule 31(d) provides a procedure for assessing court costs against amici curiae.

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