Rules of Appellate Procedure  Appellate Procedure Rule 17: Brief of an amicus curiae

A brief of an amicus curiae may be filed only (1) by leave of the appellate court or a single justice granted on motion, (2) when solicited by the appellate court, or (3) if the Commonwealth or its officer or agency is an amicus on the brief. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable.

In all cases, an amicus curiae shall file its brief no later than 21 days before the date of oral argument for that case unless the appellate court or a single justice for cause shown shall grant leave for later filing. Any party may request leave from the appellate court or a single justice to file a response to a brief filed by an amicus curiae.

An amicus brief must comply with Rule 20. In addition to the requirements of Rule 20, the cover must identify the party or parties supported and state whether the brief supports affirmance or reversal or neither. An amicus brief need not comply with all the requirements of Rule 16, but must include the following:

(1) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Supreme Judicial Court Rule 1:21;

(2) a table of contents with page references, in accord with Rule 16(a)(3);

(3) a table of authorities, in accord with Rule 16(a)(4);

(4) a concise statement of the identity of the amicus curiae and its interest in the case;

(5) a declaration by all amicus curiae, other than the Commonwealth or its officer or agency, that states 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 present appeal, and the parties involved;

(6) a summary of argument, in accord with Rule 16(a)(8), if the argument is more than 20 pages in length or more than 4,500 words if produced in a proportionally spaced font;

(7) an argument, which need not include a statement of the applicable standard of review;

(8) a signature block, in accord with Rule 16(a)(12);

(9) a certificate stating that the brief complies with the requirements of this rule and Rule 20 and specifying how compliance with the length limit of Rule 20(a)(3)(E) was ascertained, by stating either (A) the name, size, and number of characters per inch of the monospaced font used and the number of non-excluded pages, or (B) the name and size of the proportionally spaced font used, the number of non-excluded words, and the name and version of the word-processing program used; and

(10) a certificate of service, in accord with Rule 13(e).

A brief not complying with these rules (including a brief that does not contain a certification) may be struck from the files by the appellate court or a single justice.

The same number of copies of the brief of an amicus curiae shall be filed with the clerk and served on each party as required by Rule 19(d).

A motion of an amicus curiae to participate in the oral argument will be granted only for good cause.

(2022)

Rule 17(a) was amended in 2022 to clarify that if the Commonwealth, or any of its officers or agencies, is one of any number of individuals or organizations on the amicus brief, the brief may be filed as of right. This includes cases where the Committee for Public Counsel Services authors or joins the amicus brief. The Committee for Public Counsel Services is an agency of the Commonwealth. G.L. c. 211D, § 1. See German v. Commonwealth, 410 Mass. 445, 447 (1991) (describing CPCS as “a statutory agency of the Commonwealth”).

Rule 17(c) was amended to clarify that the declarations mandated by Rule 17(c)(5) are not required for the Commonwealth or its officer or agency, including the Committee for Public Counsel Services. Such declarations must be included for all non-Commonwealth amici, even if the brief is also joined by a Commonwealth officer or agency.

In addition, minor revisions to word choice were made for consistency and clarity. The revisions were not intended to change the substance of the rule.

(2019)

Rule 17 was divided into separate subdivisions for clarity and substantively revised as described below.

Rule 17(a) contains the first three sentences of prior Rule 17. The words “or its officer or agency” were added at the end of the second sentence to make it clear that an officer or agency of the Commonwealth may also file an amicus brief as of right. This language was adopted from a similar provision in Fed. R. App. P. 29(a)(2). The phrase “at the request of the appellate court” was amended to “when solicited by the appellate court” to clarify when an amicus brief may be filed without leave of court. In accordance with Rule 17(a)(2), an amicus curiae need not move for leave to file a brief in a case where an appellate court has issued an announcement requesting submission of amicus briefs. The words “consent or” were struck because they were redundant of “leave” of court to file an amicus brief.

Rule 17(b) revises the fourth sentence of prior Rule 17 to allow an amicus curiae to file an amicus brief no later than 21 days before the date of oral argument for that case, unless leave is granted for later filing. This is intended to establish an ascertainable date for the filing of an amicus brief on behalf of any party, provide all parties with sufficient time to prepare a response to an amicus brief, and allow the appellate court sufficient time to review any amicus brief or response. Rule 17(b) was also amended to explicitly allow any party to seek leave from the appellate court or single justice to respond to any amicus brief.

Rule 17(c) is a new subdivision that governs the cover, length, and content of an amicus brief. An amicus brief must comply with the formatting and length requirements of Rule 20. However, an amicus brief does not need to comply with all of the content requirements applicable to a party’s brief under Rule 16. Instead, Rule 17(c) explicitly references certain provisions of Rule 16 that are applicable to an amicus brief. Text was also added to clarify an amicus brief may be struck by an appellate court or single justice if it does not comply with Rule 17(c).

Rules 17(c)(4) and (c)(5) require the amicus curiae to identify its interest in the case in an amicus brief, so that it will be readily apparent to the appellate court when considering the brief. These paragraphs were modelled on Fed. R. App. P. 29(a)(4)(D)-(E), with a few changes. As with the analogous Federal rule, these paragraphs are not intended to require the amicus to disclose mere coordination of arguments or sharing of drafts with a party. The paragraphs are, however, intended to discourage the use of amicus briefs as an instrument to reiterate arguments made by a party to the appeal.

Rule 17(c)(5)(D) requires disclosure concerning whether “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,” in accord with Aspinall v. Philip Morris Co., Inc., 442 Mass. 381, 385 n.8 (2004), and Champa v. Weston Public Schools, 473 Mass. 86, 87 n.2 (2015). In determining whether another proceeding involves similar issues, the amicus and its counsel need only consider issues that have been explicitly raised in, and that are directly relevant to, the other proceeding and the present appeal. Likewise, in determining whether another proceeding or transaction is at issue in the present appeal, the amicus and its counsel need only consider whether that proceeding or transaction has been explicitly put at issue in the appeal. Similar to Fed. R. App. P. 29(a)(4)(E), the Commonwealth and its officer or agency are exempted from the requirements in Rule 17(c)(5).

Rule 17(d) contains the last sentence of prior Rule 17 as a stand-alone subdivision. The text “counsel for each party separately represented” was replaced with “each party,” consistent with the with the new definition of “party” in Rule 1(c). The cross-reference to Rule 19(b) was changed to Rule 19(d) to conform to changes in Rule 19.

Rule 17(e) contains the fifth sentence of prior Rule 17 as a stand-alone subdivision. The standard for allowing a motion of an amicus curiae to participate in oral argument was changed from “extraordinary reasons” to “good cause” 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.”

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(1997) 

The 1997 amendment to Appellate Rule 17 added a new last sentence requiring that the number of copies of an amicus brief to be filed with the appellate court and served on counsel be the same as set forth in Appellate Rule 19(b).

(1979) 

Rule 17 is unchanged, its provisions having been incorporated into criminal appellate procedure by former Appeals Court and Supreme Judicial Court Rules 1:15 (1975: 3 Mass.App.Ct. 803, 366 Mass. 861).

(1973) 

No existing rule governs briefs of an amicus curiae. Appellate Rule 17, limiting the right to file such a brief to an amicus who has obtained leave of the full appellate court or a single justice on motion, follows existing practice. It should be noted that the Commonwealth need never obtain leave to file an amicus brief.