The State of State Court Amicus Filings

In Briefs, State Courts by Adam FeldmanLeave a Comment

A common misconception in law is that amicus briefs are a phenomenon particular to the United States Supreme Court. This assumption is not without basis. Most of what people read in the popular press has to do with the high level of amicus support in certain hot-button Supreme Court cases. Cases with over 50 amicus briefs are often subjects of debate within the legal community. Examples abound but some that have roused attention over the past decade include Fisher II and Obergefell v. Hodges.  Conversely, not a lot is mentioned about amicus filing practice outside of the United States Supreme Court. Groups are quite active in filings amicus briefs in state courts, however. This post takes a look at amicus filings in state courts over a two-month period between January and March 2021.  During this period 188 state court opinions listed the filings of a total of 371 amicus briefs.

The histogram below shows the distribution of the number of amicus briefs per case across cases. The vertical axis tracks the number of cases and the horizontal axis tracks the number of briefs filed.

Obviously most cases had one brief filed and we see a general decrease in total briefs filed through four briefs. The number of cases with four or more amicus briefs are fairly minimal in this set.

The following table contains the cases in this set with seven or more amicus briefs

DeWeese-Boyd v. Gordon CollegeMAcivil9
Woods v. Seattle’s Union Gospel MissionWAcivil9
O.G. v. Superior Court of Ventura CountyCAcriminal8
Texas Board of Chiropractic Examiners v. Texas Medical AssociationTXcivil8
Matter of BrooksWAcivil8
State v. MischVTcriminal7
In re PalmerCAcriminal7
Villanueva al., Plaintiffs and Appellants, v. Fidelity National Title Co., Defendant and Appellant.CAcivil7
Schires v. CarlatAZcivil7
Aji P. by and through Piper v. StateWAcivil7
State v. PickettNJcriminal7

One of the cases with nine amicus briefs, DeWeese-Boyd v. Gordon College, dealt with allegations from a university professor of discriminatory policies towards lesbian, gay, bisexual, transgender, or queer, and others (LGBTQ+) individuals in promotion practices within the school. Filers in this case included the Jewish Alliance for Law and Social Action, American Association of University Professors, Council for Christian Colleges and Universities, the Attorney General’s office, Charles Hamilton Houston Institute for Race and Justice, Jewish Coalition for Religious Liberty, Robert F. Cochran, Jr., & others, American Civil Liberties Union of Massachusetts, and Roman Catholic Archdiocese of Boston.

Briefs were filed in a variety of states during this period. The following graph depicts the density of filings across states in terms of total cases with amicus support:

In bar chart form, the number of briefs (rather than the cases with briefs as depicted above) looks like the following when broken down into intermediate appeals courts and courts of last resort within the states:

The state with the most filings, California, actually had more briefs at the intermediate appeals level than in the California Supreme Court. Most other states near the top of the graph like Washington, New Jersey, and Massachusetts did not follow this pattern. The only other state with a high volume of filings that had more amicus briefs at the intermediate appeals level than at the court of last resort was New York.

We can also look at this breakdown by civil and criminal courts. The following graph presents that breakdown by state delineating the number of briefs filed in civil and criminal cases.

One reason for the disparity in this graph is that there were 146 civil cases with amicus briefs yet only 42 criminal cases. Two noteworthy things about the graph though are the relatively high level of filings in criminal cases from the top four states by volume (CA, WA, NJ, and MA) and the fact that the average number of amicus briefs in criminal cases (2.05) actually exceeds the average number of such filings in civil cases (1.96).

The last graph looks at the percentage of cases with amicus briefs by state in which the courts cited to the amicus briefs in their opinions. The number to the right of the bars reflects the number of cases that correlates with the percentage of cases shown by the bars.  This is also the number of opinions that cited to amicus briefs within the state.

Georgia, New Mexico, and Vermont saw all opinions that listed amicus briefs include cites to those briefs. New Jersey courts were notable in having a high overall volume of filings and 12 cases citing to amicus briefs. These 12 cases make up 63% of the total opinions in New Jersey with amicus filings. California also had a high volume of cases with amicus briefs and a large fraction of those with cites to those briefs at 46% or six cases with citations.

More research into amicus filings in state courts may look at changes over time, which groups file most frequently and where, and at how amicus briefs prove useful in state court decision making.

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