Georgia Appeals Law Guide / Appellate Law Treatise

Amicus

In appeals courts, an “amicus curiae”—sometimes shortened to “amicus,” or “amici” when plural—is generally a person or entity that is not directly involved in the case as a party, but who nonetheless has an interest in the outcome and submits a brief to the court. For example, if a case involves the interpretation of an environmental regulation, an environmental lobbying organization might submit an amicus brief in support of its preferred interpretation of the regulation. Even though the organization is not itself a party, it has an interest in the precedent that might be set by the court’s decision. “The literal meaning of the term ‘amicus curiae’ is a friend of the court, and the term includes persons, whether attorneys or laymen, who interpose in a judicial proceeding to assist the court by giving information, or otherwise, or who conduct an investigation or other proceeding on request or appointment therefor by the court. A person appearing as amicus curiae is not a party or privy in an action.” Village of North Atlanta v. Cook, 219 Ga. 316, 321 (133 SE2d 585) (1963) (citation and quotation marks omitted). Amici curiae may aid the courts by presenting positions that might not be adequately briefed by the parties, whose primary interest is likely the outcome of their particular case, not any precedent being created.

The role of amici is limited. “The function of an amicus curiae is to call the court’s attention to law or facts or circumstances in a matter then before it that may otherwise escape its consideration. He has no control over the litigation and no right to institute any proceedings therein, he must accept the case before the court with the issues made by the parties.” Id. at 322.

Because amici are not parties, their actions should not affect the case, other than by persuading the court. However, Georgia courts occasionally give the filing of an amicus brief some substantive effect. For example, in In re Norris, 154 Ga. App. 173 (267 SE2d 788) (1980), county commissioners appealed a contempt order entered against them by the county superior court, without the State of Georgia having been named as a party or an appellee. The superior court (as the appellee) argued that the appeal should be dismissed because the State was a necessary party. The Court of Appeals, noting “the trend away from highly technical rules of practice” and that the State had filed an amicus brief, disagreed: “[T]he state, by and through the Attorney General of Georgia, has filed a very comprehensive brief, as a friend of the court. In view of the state’s comprehensive brief, it would be a needless and delaying act indeed, under the circumstances, to remand the case for service upon the state, by and through the attorney general.” Id. at 174. Judge Sognier dissented, arguing, “The filing of a brief as amicus curiae by the Attorney General cannot serve as a substitute for the requirement that the state must be a party to this appeal.” Id. at 178. See also Gibson v. Turpin, 270 Ga. 855, 856, 856 n.2 (513 SE2d 186) (1999) (noting, in holding that death row habeas corpus petitioner had no constitutional right to appointed counsel, that the Georgia Appellate and Educational Resource Center had “appeared as amicus curiae throughout [the] case,” and citing nine “Amicus Curiae Motions” that had been filed in the habeas court).

Neither the Georgia Constitution nor the Georgia Code provide for amicus curiae in the appeals courts. However, the Rules of both the Georgia Supreme Court and the Georgia Court of Appeals liberally allow for amicus curiae briefs. Neither court requires leave of the court to file. Rule 23 of the Supreme Court provides in full, “Amicus curiae briefs may be filed without prior permission and shall disclose the identity and interest of the persons on whose behalf the briefs are filed. Amici do not have standing to file motions for reconsideration, but may submit briefs in support of a motion made by a party.” Rule 26 of the Court of Appeals provides in full, “Amicus curiae briefs may be filed without leave of Court, disclosing the identity and interest of the person or group on whose behalf the brief is filed and limited to issues properly raised by the parties. Only members of the Bar of this Court or attorneys appearing by courtesy may file amicus curiae briefs. Amicus curiae briefs shall conform to Rule 24(b)-(g).”

One of the only limits on the filing of amicus briefs is that a party cannot utilize the amicus briefing procedure to file an additional brief on its own behalf. See Pave Way Constr. Co., Inc. v. Parrish, 187 Ga. App. 428, 429 (370 SE2d 495) (1988) (granting motion to strike amicus curiae brief, where “the only clue as to the identity of the party filing the amicus brief was the signature of the attorney who filed the brief showing himself to be ‘Attorney for Appellees,’” because “[b]y definition, a party to an appeal cannot be an amicus curiae”).

Although almost anyone can submit an amicus brief, see, e.g., In re N.S.M., 183 Ga. App. 398, 400 n.1 (359 SE2d 185) (1987) (treating brief filed by non-party witness, in which he incorrectly denominated himself as an “appellee,” “as that of amicus curiae”), generally, no one with a direct interest in the outcome of a case should view the amicus filing procedure as a good alternative to intervening in the case (that is, moving to be made a party). Among other reasons why, appeals courts will not consider issues raised by amici but not by the parties. For example, in Fulton County v. Bartenfeld, 257 Ga. 766 (363 SE2d 555) (1988), the Georgia Supreme Court affirmed the superior court’s judgment ordering the issuance of a special-use permit to build a landfill. In the final division of the Court’s opinion, it noted that amici curiae—“individuals who own residential property in close proximity to the subject property”—had submitted appellate briefs arguing that notice of the planning commission hearing was constitutionally defective. The Court, however, refused to consider the issue, stating, “since the issue has not been properly raised by a party to this proceeding, we conclude that it is not properly before us for appellate review.” See also In re L.J., 279 Ga. App. 237, 240 n.5 (630 SE2d 771) (2006) (“We considered the amicus curiae briefs … only to the extent those briefs touched upon the legal issues properly enumerated as error by L.J.”). A non-party whose motion to intervene in the trial court is denied can appeal that decision. See Segars v. State, 309 Ga. App. 732, 732 n.1 (710 SE2d 916) (2011). And Georgia appeals courts also allow intervention by motion at the appeals stage. See Shehadeh v. Alexander, 315 Ga. App. 479, 479 n.1 (727 SE2d 227) (2012); City of Rincon v. Couch, 272 Ga. App. 411, 412 (612 SE2d 596) (2005). A non-party can request to be heard “on equal terms with the parties directly before the court” if it has a “direct interest in [the] result” of a pending case, pursuant to OCGA § 5-6-1. See Foundations > Statutes.

There are instances in which the arguments raised by an amicus curiae appear to have a significant, even outcome-determinative, effect on an appeal. See, e.g., Mells v. State, 197 Ga. App. 431 (398 SE2d 785) (1990).

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