Posted by: Barbara Jorden on Sep 15, 2020

Dear ITLA Members:

As you are undoubtedly aware, the ITLA Foundation, Inc. Amicus Committee was created for the purpose of providing independent and scholarly assistance to the Idaho courts through friend-of-the-court briefing and argument. Over the last three years, the ITLA Foundation has sought to appear as amicus in three cases and has been granted amicus status in two of those cases. However, as the Committee has worked through requests by members to appear, there have been a few consistent misunderstandings regarding both the process of requesting amicus appearance by the Foundation and the role of such an appearance. The following information is offered to try and clarify some of these issues.
Many of you may not be aware of the process of requesting amicus status before the Idaho appellate courts. The Foundation is not automatically allowed to participate as amicus in whichever case it chooses, it must first petition for such status. While there is no set deadline within the Idaho Appellate Rules for making such a petition, the Idaho Supreme Court prefers that amicus briefing be filed at the same time as the brief for the party the amicus seeks to support. Therefore, any petition to appear as amicus needs to be filed as soon as possible after the appeal is filed to allow sufficient time for the Idaho Supreme Court to consider the petition and allow for sufficient time for the Amicus Coordinator to prepare and file the brief if the petition is granted.
As the attorney, you have the best possible information about your case and whether it is a case that might benefit from amicus briefing by the Foundation if taken up on appeal. If you believe you have a case that meets the standards for amicus briefing, please make your request to the Committee as soon as possible after the appeal is filed. The procedures for making a request to the Amicus Committee are set forth on the ITLA website as well as in the attached materials.
Unfortunately, if a request is made too late into the process, the request will likely be denied based on those timing issues. Do not wait until the Court sets a briefing schedule. Make the request as early as possible in the process.
The second frequent issue that arises in connection with requests for amicus participation by the Foundation relates to reasons for the denial of such requests by the Committee. The standards established by the Committee for considering amicus requests are set forth on the ITLA website and the attached materials. Not every case will meet these requirements. Some cases involve important issues that will have significant consequences for ITLA members and their clients, but do not lend themselves to the more scholarly legal analysis which is central to amicus briefing. Amicus briefing is not intended to supplant the parties’ briefing or simply support the arguments of the parties. Rather, amicus briefing is intended to provide the Court with a broader historical or public policy context, often by providing a scholarly legal analysis of the history of a particular law or legal analysis of similar laws in other states around the country and how courts have handled those cases. Thus, when applying for Amicus participation, the attorney should identify what they believe the amicus briefing can provide to the Court that cannot or should not be addressed in the parties own briefing and further should provide the Committee with pertinent parts of the record on appeal, including relevant briefing in the trial court concerning the issue(s) for which amicus support is sought. Such information will allow the Committee to better understand the issues and what benefit might be provided by amicus support.
It remains the ITLA Foundation’s driving goal to support justice for all and to support issues that further the rule of law, retain access to the justice system, preserve the constitutional right to trial by jury, and generally promote the common good. The ITLA Foundation encourages practitioners to seek amicus participation where appropriate and to do so as early as possible in the process.
ITLA Foundation Board and Amicus Committee
Breck Barton
Howard Belodoff
Walter Bithell
John Bush
Guy Hallam
Charlie Hepworth
Charles McDevitt
Erica Phillips
John Rumel