Amicus Brief

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Amicus Brief in California

From California Lawyer:

Legal matters that draw the most interest from amici curiae offer important clues to the cases considered most important by the bar, and by those with “special interests” who are most affected by the outcome. Amicus briefs were filed in 42.7 percent of the cases decided by the state Supreme Court over the past year. That’s down from 1999, when the figure was 56 percent.

As is usual, most amicus briefs were filed in civil matters. Bespeaking the court’s relatively quiet criminal docket, for the first time in more than a decade the California District Attorneys Association wasn’t moved to submit a single brief.

The most active amici were the Asian Law Caucus and the Pacific Legal Foundation, each of which submitted briefs in six cases. These repeat players filed several briefs in disputes involving worker or consumer rights. The docket in these areas also attracted significant interest from other members of the plaintiffs bar, and their counterparts for the defense.

These opposing camps squared off in two cases that concerned the enforcement of waivers within arbitration agreements: Sonic-Calabasas A, Inc. v. Moreno (57 Cal. 4th 1109 (2013)) and Iskanian v. CLS Transportation Los Angeles, LLC (59 Cal. 4th 348 (2014)). When the dust settled, both sides could claim partial victories. The court retreated from its earlier decisions condemning some waivers as unconscionable, but it refused to adopt in full the broader preemption arguments that employers had advanced.

Similar face-offs occurred in Verdugo v. Target Corporation (59 Cal. 4th 312 (2014)), over whether retail stores owe their customers a duty to keep automatic heart defibrillators available on their premises. This time, the court handed the defense bar an unalloyed victory, holding that common law prescribes no such responsibility.

Meanwhile, one State Bar matter drew a flurry of amicus submissions. The court found itself with 90 friends – more than half of them law school deans or professors – and a whole lot of extra reading (a year-high 17 amicus briefs) when it considered In re Garcia on Admission (58 Cal. 4th 440 (2014)). At issue was whether an undocumented immigrant could be admitted to the practice of law, and the Garcia court seemed most interested in the views of the federal government. To the surprise of many, the Department of Justice’s brief argued that Sergio C. Garcia could not be admitted to practice under existing law. Yet the brief from Washington, D.C., pointedly reminded the court that this problem would disappear if California enacted a statute that explicitly made undocumented immigrants eligible for admission to the bar. Sure enough, shortly after oral argument a bill providing as much sailed through the California Legislature. Garcia became a member of the California bar on February 1, 2014, a month after the court relied upon the newly minted law in granting his bid for admission. The only disagreement among the justices was how to describe Garcia’s status. Justice Ming W. Chin suggested that precedent required calling him an “unlawful alien.” Thankfully, the court opted for the less pejorative “undocumented immigrant.”

Most of the amici were California residents or entities, but the court’s business also attracted interest from national organizations. The court’s ever-continuing review of employee class actions (and employers’ attempts to avoid them) twice pitted AARP against the U.S. Chamber of Commerce. (Iskanian (cited above) and Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014).) National media outlets, including the Associated Press, NBC, and the New York Times, lined up with local newspapers such as the Calaveras Tribune, Santa Maria Times, and Mission Viejo News in Sander v. State Bar of California (58 Cal. 4th 300 (2013)), a public-records case that produced a clear, if measured, victory for access advocates. And although 48 state and national associations of nurses filed a brief in support of their California peers in American Nurses Association v. Torlakson (57 Cal. 4th 570 (2013)), the plaintiffs still lost, on a unanimous vote.

Other amici saw their efforts go to waste as well. When the manufacturer of the traffic cameras challenged in People v. Goldsmith (59 Cal. 4th 258 (2014)) sought to explain its technology through an amicus brief, the court replied that, much as it might wish to wrap its head around the science, rules governing judicial notice barred it from even considering the information.

One way to guard against failure as an amicus is to support neither party, yet endorse every possible outcome in a case. For a master class in this tactic, review the brief filed by the California Academy of Appellate Lawyers in Kurwa v. Kislinger (57 Cal. 4th 1097 (2013)). The trial court had dismissed some of the plaintiff’s claims with prejudice; other claims were dismissed without prejudice. The legal question before the court was whether this arrangement teed up a final judgment suitable for appeal. The members of the academy couldn’t agree on the proper outcome, so they submitted a brief that outlined three different “proposals” for consideration. After introducing and critiquing each potential solution, the academy’s brief sighed that “there is no ‘right’ answer.” The academy therefore could claim at least a measure of success when the court adopted a result that mirrored the group’s second proposal.

Finally, no discussion of this year’s amicus briefs would be complete without mention of Loeffler v. Target Corporation (see “The Best and the Worst Opinions”), a case at the intersection of unfair competition and tax law in which the state effectively declared war on itself. The Attorney General’s office filed an amicus brief in Loeffler supporting the plaintiff. The State Board of Equalization then filed in support of Target. Ultimately, the Board of Equalization’s views persuaded the court to rule 4-3 for Target. Loeffler may not have been the most important case of the year, but it was probably the most awkward, given the split between state agencies.

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