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December 06, 2016 Articles

Amicus Committee Becomes Permanent Standing Committee

The inception of the Amicus Committee was a response to several notable cases before the U.S. Supreme Court involving the role, function, and independence of the judiciary.

By M.C. Sungaila and Drew Erteschik – December 6, 2016

In January 2014, the Judicial Division created the Amicus Committee to evaluate pending appellate cases with the potential to impact the judiciary and, when appropriate, to urge the ABA to file an amicus brief in those cases. Now, after a busy first two years, the Amicus Committee has become a permanent standing committee of the Judicial Division.

The inception of the Amicus Committee was a response to several notable cases before the U.S. Supreme Court involving the role, function, and independence of the judiciary. At that time, several members of the Judicial Division—including Chief Justice Mark Martin, Judge Leslie Miller, Dr. Peter Koelling, and Mike Bergmann—recognized the immediate need for an amicus committee within the Judicial Division.

Historically, the ABA’s amicus briefs contain a statement that no member of the Judicial Division Council participated in the adoption or endorsement of the positions in the brief. Consistent with this approach, the Amicus Committee is composed of twelve members who are actively involved in the Judicial Division but who are not judges or members of the Judicial Division Council. Six of the Amicus Committee’s twelve members must be members of the Council of Appellate Lawyers, the group within the Judicial Division that is devoted to the professional development of lawyers who practice appellate law. The Amicus Committee’s remaining six members must be members of the Lawyers Conference, the conference within the Judicial Division that provides a forum for attorneys to interact with the judiciary in a collaborative effort to improve the courts. The Amicus Committee stands as a great example of cooperation by the Council of Appellate Lawyers and the Lawyers Conference to further the goals of the Judicial Division.

When the Amicus Committee identifies a case that it believes merits the filing of an amicus brief by the ABA, the committee’s recommendation is presented to the Executive Committees of the Lawyers Conference and Council of Appellate Lawyers. If both of these Executive Committees approve the recommendation, then it is presented to the ABA’s Standing Committee on Amicus Curiae Briefs.

In its first two years, led by founding cochairs Chris Browning (North Carolina) and M.C. Sungaila (California), the Amicus Committee fielded a substantial number of amicus requests. These requests included

  • evaluating several cases challenging certain provisions of the ABA Model Code of Judicial Conduct (as adopted by various states), including a case in which the ABA Standing Committee on Amicus Curiae Briefs adopted the Amicus Committee’s conditional recommendation to file an amicus brief;
  • reviewing pending cases involving issues of judicial recusal, including an evaluation—at the request of the ABA’s general counsel—of a certiorari petition in a due process challenge based on alleged judicial bias;
  • evaluating a case pending before the U.S. Supreme Court involving the issue of whether bankruptcy judges may decide noncore cases by consent; and
  • bringing to the ABA’s attention the U.S. Supreme Court’s grant of certiorari in a challenge to Florida’s Judicial Code—a case in which the ABA filed an amicus brief on the recommendation of the Amicus Committee and in which the Supreme Court’s decision was ultimately consistent with the ABA’s position.

Following these first two active years, the Judicial Division Council in February 2016 made the Amicus Committee a permanent standing committee.

Currently, the Amicus Committee is cochaired by Council of Appellate Lawyers member M.C. Sungaila (California) and Lawyers Conference member Drew Erteschik (North Carolina). Other committee members include Catherine Carroll (D.C.), Victoria Dorfman (New York), Jonathan Ellis (D.C.), Mark Epstein (California), Kirk Jenkins (Illinois), Debbie Leonard (Nevada), Lori Mason (Texas), Brian Miller (Texas), Mary O’Grady (Arizona), and Mike Scodro (Illinois). Former Ohio Supreme Court Justice Yvette McGee Brown served on the committee in 2014.

If you become aware of a pending case that you believe the Amicus Committee should be following, please contact M.C. Sungaila or Drew Erteschik.

Editor's Note: The Section of Litigation also has an Amicus Briefs Committee. If you have any questions about the Amicus Briefs Committee or would like to learn more, please contact Tom Donlon.

Keywords: litigation, appellate practice, Judicial Division, Amicus Committee, permanent standing committee

M.C. Sungaila is a partner at Haynes and Boone, LLP, in Costa Mesa, California. Drew Erteschik is a partner at Poyner Spruill LLP in Raleigh, North Carolina. Sungaila and Erteschik serve as cochairs of the Judicial Division Amicus Committee.

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