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High Court's New Rules Address Critics' Privacy Concerns
Legal Times
July 18, 2007
The Supreme Court appears to have backed away from a controversial proposed rule change that critics said would have threatened the privacy of groups that file amicus curiae or friend-of-the-court briefs with the justices. Following a public comment period that apparently led the justices to reconsider their proposal, the Court on Tuesday issued new rules that will take effect Oct. 1.
The original proposal would have had the effect of requiring amicus filers to disclose if parties or their counsel were members of the amicus group or had helped finance the brief. The aim was to prevent parties to get two bites at the apple -- one, a brief filed by the party itself and the second, a brief filed by an amicus group but written or financed by the party. But amicus groups across the spectrum protested that the rule would invade the cherished privacy of their membership rosters. Former members of the solicitor general's office also protested that the rule as written originally would have required government lawyers to reveal, for example, whether they paid dues to the American Civil Liberties Union or the National Rifle Association.
The rule 37.6 as finally promulgated Tuesday deals with both objections. Lawyers for government entities are exempted altogether, and the disclosure for everyone else is limited to parties and their counsel who made monetary contributions to the amicus group specifically for the preparation or submission of the brief. The clerk's commentary states that those parties and counsel who merely pay membership dues to the amicus group "need not be disclosed."
"I am gratified that the Court paid such careful attention" to comments about the amicus and other rules, said David Gossett of Mayer, Brown, Rowe & Maw who filed the lead comment on the rules changes on behalf of numerous Supreme Court practitioners.
