The New York Court of Appeals is joining the vast majority of courts that require motions to appear as amicus curiae on merits appeals and motions for leave to appeal (or petitions for a writ of certiorari, as they like to call them at the Supreme Court) to be made soon after the briefs of the parties are filed. Effective May 8, 2024, the Court of Appeals has adopted new rules for the timing of amicus motions. Gone are the days when an amicus could wait for all the parties to file their briefs, and then prepare an amicus brief responding to all the arguments just month before the case heads before the Court for oral argument.
Let’s take a quick run through the new rules and how they are different from the Court’s longstanding past practice.
First, the Court’s new amicus timing rules on merits appeals abandon the old regime that allowed amicus motions to be returnable during the argument session before the appeal is calendared for oral argument. That rule allowed, for example, an amicus submission in March for a case argued in April. No longer. Under the new rules, motions to appear and file a brief as an amicus curiae have to be “served no later than 30 days after the filing date set for appellant’s reply brief.” The filing date that the Court set for briefs is available on the Court’s website through the Court-PASS docket search. This rule doesn’t explicitly address timing when there are cross appeals before the Court of Appeals, so further clarification on that may be necessary at some point. For now, this rule significantly moves up the deadline for amicus submissions, by about 3-4 months in practice. That will give the Judges a much longer time to analyze and consider the amicus briefs, and the parties’ response, before the case is actually argued.
Second, the Court adopted a rule, for the first time, providing that amicus motions in support of a motion for leave to appeal to the Court of Appeals must be served (not returnable, just served) within 15 days after the return date of the motion for leave. The Court did not previously have a deadline for these motions, but it was a general rule of thumb that a motion to appear as an amicus on a motion for leave to appeal should be returnable as close as possible to the return date of the motion for leave itself. This new rule providing an explicit deadline for those motions shouldn’t change practice too much, but it does certainly emphasize the importance of lining up your amicus support for motions for leave to appeal early in the game.
Finally, after the Court has had a spate of Judges who have recused because of connections to parties who file amicus briefs, the Court has amended its rules to provide that an amicus motion “will be denied where acceptance of the amicus curiae submission may cause the recusal or disqualification of one or more of the Judges of the Court.”
That’s a tough, but understandable rule. It’s hard to tell parties that may have a connection to a Judge on the Court that they can’t have their views heard on an issue of importance that the Court is deciding. But it’s harder for the Court to have to replace the Judges on matters where the parties themselves didn’t cause an issue requiring recusal. In the balance of interests, I certainly understand the choice the Court is making.
One issue, however, is that potential amici curiae may not have any idea that their amicus submission could cause a Judge to recuse. In that case, the potential amici will have hired an appellate lawyer, and spent a great deal of time and money articulating its view on an issue to assist the Court with its decision on an appeal, only to have all that effort, time, and money wasted if its submission could cause a Judge to recuse. Though this may not be an issue frequently encountered, it is one to consider for future amendments to the rule. The Court could, for example, require a potential amicus curiae to file a letter within a few days after the filing of the Appellant’s or Respondent’s brief announcing its intention to make an amicus submission. That would give the Court an opportunity to determine and advise the party if an amicus submission would create a recusal issue, before the party has gone to great lengths and expense to prepare a brief. Just one lawyer’s suggestion.
Importantly, while these rules went into effect on May 8, 2024, they do not apply to pending appeals where the appellant’s reply brief deadline is on or before June 7th. For those appeals, amicus motions may still be served until July 8th. For everyone else, however, the new rules are in place, so be sure to contact your friendly appellate lawyer for prompt amicus assistance!
New York Appeals 