Party-Funded Amicus Briefs in Massachusetts: A New Frontier or a Dead End?
By Neal Quenzer
Earlier this year, in H1 Lincoln, Inc. v. South Washington Street, LLC, 489 Mass. 1 (2022), the Supreme Judicial Court was faced with an interesting question concerning amicus practice: how should the court treat an amicus brief that has been paid for by one of the parties to the appeal?
This is a novel question in Massachusetts. The court sent the question to its standing advisory committee on the Rules of Appellate Procedure for consideration. This article examines the backdrop against which this question arises and what the possible answers might mean for Massachusetts amicus practice.
The Court’s General Approach Toward Amici
The Supreme Judicial Court has a very liberal amicus practice. The court proactively solicits amicus briefs in most cases it transfers from the Appeals Court for direct and further appellate review, as well as cases that are reserved and reported by the single justices or certified by the Federal courts. These make up the bulk of the court’s caseload. When the court solicits amicus briefs, an individual or organization wishing to file a brief need not request leave to do so or state reasons why an amicus brief is desirable, as would otherwise be required.[1] Even in cases where the court does not solicit briefs, and amici are required to obtain leave to file and make the requisite showing that an amicus brief is desirable, leave is almost never denied.
The court continues to accommodate amici liberally after it solicits their briefs. Unlike in the Federal courts, amici can file their briefs after – sometimes well after – the parties’ briefing is complete, regardless of which side’s position an amicus supports.[2] Amici are also occasionally permitted to participate in oral argument on a showing of good cause.[3] Moreover, as a matter of practice, the court will often accept letters and memoranda from amici in lieu of formal briefs, although this practice is not reflected in the appellate rules.
Restrictions on Amicus Practice
To be sure, the court does not just acquiesce in everything that amici want to do. For example, there have been instances where an amicus has sought to file a reply to a brief of another amicus; sought leave to argue in order to respond to something another amicus said in its brief; filed unsolicited post-argument material in response to the court’s questions to a party; asked the court to solicit additional amici; and even moved for reconsideration of the court’s opinion where no party had done so. The court denied most of these requests, declined to act on others, and reluctantly allowed a few of them.
The court has also remarked in at least three of its opinions on amicus practices it found problematic. First, in Aspinall v. Philip Morris Co., Inc., 442 Mass. 381 (2004), an amicus, the National Association of Manufacturers, disclosed that its brief was paid for by three major tobacco companies that had the same interests as the defendant, Philip Morris, in the legal issues that were before the court. That was not the court’s concern. That is part and parcel of modern amicus practice. What bothered the court was that the amicus did not reveal that the law firm that prepared its brief also represented Philip Morris in similar litigation then pending in another jurisdiction. In other words, the brief was written by attorneys who represented the defendant, although they were not the defendant’s counsel of record in the case before the court. The court noted that “[a] full and honest disclosure of the interest of the amici is crucial to the fairness and integrity of the appellate process,” and that “[b]riefs of amicus curiae are intended to represent the views of nonparties.” Id. at 385 n.8 (emphasis in original). The court nevertheless accepted the brief. The version of Rule 17 then in effect did not expressly require disclosure of an amicus counsel’s representation of the supported party in other cases raising similar issues, and the court was careful to say that the amicus counsel therefore “had no basis to know” that the court would require it, and “[f]or that reason, counsel cannot be faulted for not making the disclosure.” Id. Going forward, however, the court said that “counsel for proposed amici should make disclosure in [such] circumstances.” Id.
The second case was Local 1652, International Association of Firefighters v. Town of Framingham, 442 Mass. 463 (2004), decided just three days after Aspinall. There, without fanfare or elaboration, the court, on its own initiative, struck an amicus brief proffered by the Professional Firefighters of Massachusetts because it was written by the same law firm (and one of the same attorneys) who represented the appellee union. The court repeated what it said in Aspinall, that “[b]riefs of amici curiae are intended to represent the views of nonparties.” Id. at 463 n.1.
The third case was Champa v. Weston Public Schools, 473 Mass. 86 (2015), concerning public access to certain settlement agreements between a town and parents of special education students in the town’s public schools. One of the amicus briefs in the case was from an individual who was a partner in the law firm that represented the town on appeal. Although this attorney did not appear for the town on appeal, she had represented the town in earlier stages of the dispute. She filed the amicus brief on her own behalf. The court said in these circumstances that “her filing a separate brief, purportedly as an amicus, to make further arguments supporting the client’s position, was ill-advised.” Id. at 87 n.2.
One of the court’s clear concerns – reflected in all three opinions – is that an amicus ought to be sufficiently independent from the party whose position it supports. The more influence and control a party or its counsel exerts over an amicus, the more likely the amicus brief is nothing more than another brief of the party in disguise.
Requirements of Mass. R. A. P. 17
As part of its 2019 overhaul of the Massachusetts Rules of Appellate Procedure, the Supreme Judicial Court added several new requirements for amicus briefs, including, in new Rule 17(c)(5), that all amici (other than the Commonwealth and its agencies and officers), state in their briefs whether:
(A) a party or a party’s counsel authored the brief in whole or in part;
(B) a party or a party’s counsel, or any other person or entity, other than the amicus curiae, its members, or its counsel, contributed money that was intended to fund the preparation or submission of the brief, and, if so, identifying each such person or entity; and
(C) the amicus curiae or its counsel represents or has represented one of the parties to the present appeal in another proceeding involving similar issues, or was a party or represented a party in a proceeding or legal transaction that is at issue in the present appeal, and, if so, identifying the proceeding or transaction, its relevance to the pending appeal, and the parties involved.[4]
The new requirements in (A) and (B) are essentially the same as the disclosure requirements in the cognate Supreme Court rule and Federal rule, whereas (C) goes beyond what is required under those rules. The 2019 Reporter’s Notes make clear that the rule as amended does not “require the amicus to disclose mere coordination of arguments or sharing of drafts with a party.”[5] Rather, the new language is designed to alert the court to those situations where an amicus brief is actually written or paid for by one of the parties or its counsel – or, as in Aspinall and Champa, where the amicus brief is written by an attorney or firm that represents one of the parties in similar proceedings elsewhere, or represented a party at an earlier stage of the matter.
The Question Raised by H1 Lincoln
Having adopted these new disclosure requirements, the court was soon faced with the next logical question: what happens when one of the parties strategically chooses to pay part or all of the cost of an amicus brief, and the amicus candidly discloses, as Rule 17 requires, that its brief was paid for by the party?
In H1 Lincoln, one of the amici, National Retail Tenants Association, indicated in its Rule 17(c)(5) declaration that the appellee had “made a monetary contribution intended to fund the preparation or submission of” the organization’s brief. Another amicus, Retailers Association of Massachusetts, indicated that a limited liability company “affiliated with” the appellee “made a monetary contribution to fund the preparation and submission of” the amicus’s brief. The appellant moved to strike both briefs for those reasons. The amici responded by arguing, among other things, that Rule 17 does not prohibit parties from paying for amicus briefs, it simply requires an amicus to disclose that a party has done so. They also pointed out that the appellee and its counsel did not actually write any part of the amici’s briefs, that the briefs represented the independent views of the amici, and that the briefs would provide considerable value to the court in deciding the issues. Interestingly, just as the appellant did not cite any case law in Massachusetts or elsewhere for its proposition that a party’s financial contribution toward an amicus brief necessarily disqualifies the brief, the amici cited no case law holding that an amicus brief paid for by a party is permissible.[6]
The court did not act on the appellant’s motion to strike. Acknowledging that it has not yet ruled on what consequences, if any, follow from a party’s funding of an amicus brief, the court stated that it did not need to answer the question because it did not rely on the challenged briefs. Instead, the court sent the question to its standing advisory committee on the Rules of Appellate Procedure for study. The answer to this important question thus awaits an amendment to Rule 17 or some other guidance from the court.
Pros and Cons of Party-Funded Amicus Briefs
Amicus briefs can be enormously helpful for the court, particularly when it decides novel and complex issues of law. That no doubt is one of the main reasons why the court fosters and embraces a robust amicus practice in the first place.
From this perspective, there is nothing inherently wrong with a party contributing to the cost of an amicus brief. The contribution might persuade an individual or organization with valuable information to participate in the appeal when it would not otherwise do so. The party, the prospective amicus, the court, and our jurisprudence all benefit. Further, as stated, there is nothing in Rule 17 expressly prohibiting this. Indeed, one might argue that the disclosure requirements – coupled with the mandatory corporate disclosure statement, see Rule 17(c)(1), and the required statement of the amicus’s interest in the case, see Rule 17(c)(4) – help to bring into the open what had been occurring sub silentio before the disclosure requirements were added, and thereby give the court a clearer picture of the extent of the relationship between an amicus and the parties.
Will the court suddenly be flooded with amicus briefs that are bought and paid for by the parties? Probably not. And if that does happen, and if those briefs are merely transparent attempts to reiterate or supplement the arguments of the parties that they could not fit within the page constraints of their own briefs, there is a simple solution: disregard those briefs. Judges are under no obligation to pore over amicus briefs and respond to every amicus argument; they can quickly size up those that are helpful and those that are not, and choose to disregard the latter.[7] Moreover, with respect to briefs they do consider, they are free to give the information and arguments in the brief whatever weight they think is warranted in light of the known fact that the brief has been subsidized by a party.[8]
The position against party-funded amicus briefs is at least as compelling. First, although Rule 17 does not expressly prohibit funding and requires only the disclosure of it, the spirit of the rule seems to discourage the practice. The 2019 amendment to Rule 17 was modeled in part after Federal Rule 29 (c)(4), which itself was modeled after Supreme Court Rule 37.6. Those rules were meant to increase the likelihood that amici and their briefs remain sufficiently independent of the parties, and to maintain some semblance of a line between the two.[9] Funding, in contrast, tends to have the opposite effect; it suggests (or at least has the appearance of suggesting) some degree of influence and control by one over the other, thus increasing the possibility of less independence.[10]
Second, the structure of Rule 17 appears to disfavor funding. Subsection (c)(5)(A) requires disclosure when a party or its counsel authors the amicus brief in whole or in part, and subsection (c)(5)(B) requires disclosure when a party funds the amicus brief in whole or in part. The inclusion of authorship and funding in back-to-back provisions suggests the court meant to treat them similarly. Yet we know from Local 1625 and Champa that the court finds the situation under (c)(5)(A) unacceptable. It was not enough in those cases that the authorship by the party’s counsel was known to the court. So, unless (c)(5)(A) was intended to change existing case law – and there is no indication in the Reporter’s Notes of that – it seems logical to conclude that party funding, even if known to the court, is likewise unacceptable. At a minimum, if these two practices are to be treated differently, then the rule ought to be changed to reflect that.
Third, can judges really ascribe differing weights to amicus briefs depending on whether or not they have been funded by a party? Suppose there are two briefs, the party’s own brief and a brief that it funded or wrote for an amicus who otherwise might not have participated. The court reads the main brief and is not persuaded by the arguments therein but is persuaded by an argument in the amicus brief. Maybe the amicus has provided case law from other jurisdictions, legislative history analysis, insightful details about an industry’s norms and practices, or perhaps just better advocacy. Is the court prepared to say, “that’s a winning argument, but we are going to discount it because it is contained in a brief funded by a party”?[11] We would like to think that the court would not ignore or discount valuable, maybe critical, information – whether it is factual or legal – but there lies the concern. The court may be well-intentioned if it believes it can control the situation by giving certain amicus briefs a different weight in light of the disclosures, but that may prove too difficult, if not impossible, to do.
Finally, there is a concern that accepting party-funded amicus briefs would create an unfair disparity between litigants who have ample resources to pay for amicus support – whether offered to an amicus to entice participation or demanded by the amicus as its fee to participate – and those with fewer resources.[12] Will a well-heeled party effectively be able to buy more pages of appellate argument than the procedural rules allow, while those without the financial resources are resigned to comply with the limitations of the rules?
If the court accepts party-funded amicus briefs, it may wish to consider imposing limits on the practice or, at least, additional disclosure requirements so that it will be fully informed of the extent of the party’s involvement. Rule 17(c)(5)(B) currently does not require an amicus to say much. Simply saying that a party has “contributed money . . . to fund the preparation or submission of the brief” is quite nonspecific and unhelpful. It does not seem to be the kind of “full and honest disclosure” envisioned by the court in Aspinall. It does not differentiate, for example, between a situation where a party pays a few hundred dollars to cover the amicus’s printing costs and a situation where the party pays tens of thousands of dollars for the amicus’s attorney fees. Nor does it differentiate between a party who contributes a fraction of the amicus’s cost and a party who foots the entire bill.[13] Requiring an amicus to disclose exactly what the party paid for, or possibly how much (percentage-wise or dollar amount) was contributed, may help the court gain a better understanding of the support given by the party to the amicus and hence the degree of true independence of the amicus.
Conclusion
When the court amended Rule 17 in 2019, it likely envisioned that the new disclosure requirements would operate in the negative – i.e., by requiring an amicus to make the disclosures, parties and their counsel would be discouraged from writing or funding an amicus brief, and, further, the court would be assured that, when an amicus indicates that none of the three conditions in Rule 17(c)(5)(A)-(C) apply, which would almost always be the case, the proffered brief would be the product of a sufficiently independent amicus and not merely a party’s brief in disguise. The court may not have anticipated what would happen when an amicus indicates that one of the conditions does apply. The court now has an opportunity to address that situation.
There appears to be no State or Federal court anywhere that expressly approves of party-funded amicus briefs. That said, the Supreme Judicial Court is more progressive than most when it comes to soliciting and accommodating amici. Will the court’s generous attitude toward amicus practice lead it to be the first to openly accept party-funded briefs?
If the court closes the door on party-funded amicus briefs, appellate litigators will know that the practice is off-limits and can proceed accordingly. If, on the other hand, the court accepts these briefs, with or without further restrictions, appellate litigators will have an opportunity, perhaps a need, to shape their relationships with amici differently. Either way, we welcome the court’s much-needed guidance in this important area.
[1] See Mass. R. A. P. 17(a). In contrast, Supreme Court Rule 37 and Fed. R. A. P. 29 have no similar language about court-solicited amicus briefs. They state that an amicus brief may be filed only if all parties to the appeal consent to the filing or, barring unanimous consent, by leave of court.
[2] Compare Rule 17(b) (amici may file up to twenty-one days before date of oral argument, or later for good cause shown), with Supreme Court Rule 37.3 (at merits stage, amici typically must file within seven days of filing of brief of party whose position they support) and Fed. R. A. P. 29(a)(6) (same).
[3] See Rule 17(e). Before 2019, the rule permitted amici to participate in oral argument “only for extraordinary reasons.” The amendment softened that limitation; it was meant “to reflect that an amicus curiae’s participation at oral argument may be desirable for a variety of reasons, even if those reasons might not be fairly described as ‘extraordinary.’” See 2019 Reporter’s Notes, par. 8.
[4] Rule 17(c)(5) was amended again in 2022 to improve its consistency and clarity. The language quoted here incorporates the 2022 amendments.
[5] See Stephen M. Shapiro, et al. Supreme Court Practice, c. 13.14 at 13-47 (11th ed. 2019); Committee Notes to 2010 amendment to Federal Rule 29. See generally, Allison O. Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901 (2016).
[6] The appellant in H1 Lincoln, the party that moved to strike the amici briefs, was represented by Robert Cordy, a distinguished former Justice of the Supreme Judicial Court. He was on the quorums that decided Aspinall, Local 1652, and Champa. The appellee, the party that funded the amicus briefs, was represented by, among others, John Greaney, also a distinguished former Justice of the court. He authored the opinion in Aspinall and was on the quorum in Local 1652. This is a sure indication that the law on party-funded amicus briefs is an area where reasonable minds can differ.
[7] This apparently is what occurs in the Supreme Court, where amicus briefs are far more plentiful than in the Supreme Judicial Court. See Stephen M. Shapiro et al., supra at 13-51.
[8] Cf. Steven M. Shapiro, et al., supra at 13-47 (suggesting that “those counsel intent on continuing such practices should expect the Court to accord their amicus briefs a lesser degree of credibility”).
[9] See Committee Notes on the 2010 amendment to the Federal rule. See also Steven M. Shapiro, et al., supra at 13-47 (suggesting that Supreme Court Rule 37.6 “reflects the Court’s perception that some parties to a case had been silently authoring or financing amicus curiae briefs in support of their positions. [The rule] constitutes the Court’s effort to curb such practices by requiring full disclosure of the pertinent facts in the amicus briefs”).
[10] See Sheldon Whitehouse, A Flood of Judicial Lobbying: Amicus Influence and Funding Transparency, 131 Yale L.J. Forum 141 (2021) (advocating for greater disclosure than Supreme Court rule and Federal rule currently require to better guard against potentially corrosive effect of “dark money” amicus submissions on judicial decision-making).
[11] See, e.g., Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 805 n.12 (2003); Yeretsky v. City of Attleboro, 424 Mass. 315, 323 n.17 (1997); Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 760 n.15 (1993). Query whether the court would have found the important information and advocacy supplied by the amici in these cases any less significant or reliable if their briefs had been funded by parties.
[12] This concern can arise in two ways. First, by voluntarily offering to fund a prospective amicus’s brief, a party with ample resources might be able to persuade an amicus to become involved who otherwise would not be involved. Second, if party-funded amicus briefs are allowed, some prospective amici inevitably will expect to be paid and might decline to participate without a payment. In both scenarios, the party who can pay for the amicus’s participation fares better than the party who cannot.
[13] Nor does the current rule distinguish between a situation where a party solicits a prospective amicus’s participation and voluntarily offers financial assistance, and a situation where the amicus solicits funding from the party (or even approaches a party with a proposal to file a brief for a fee).
The author is a senior counsel in the Appellate and Supreme Court Litigation group at Wilmer Cutler Pickering Hale and Dorr LLP, and formerly served as Chief Staff Counsel at the Supreme Judicial Court. He is grateful to his colleagues – Mark Fleming, Felicia Ellsworth, and Elizabeth Bedrick – and to Francis Spina, retired Justice of the Supreme Judicial Court, and Francis Kenneally, the Clerk of the court, for their contributions.
