SC Amici Curiae Strike Again

The South Carolina Supreme Court this month entertained arguments raised only by amici — despite the rule against it. The case is In the Interest of Kevin R., 409 S.C. 297, 762 S.E.2d 387 (2014).

Kevin R. involves a juvenile who moved the family court for a jury trial. Back in July, the Supreme Court held that juveniles do not have a right to a jury trial. In re Stephen W., 409 S.C. 73, 761 S.E.2d 231 (2014).

Amici May Raise New Issues

But the Court found that Stephen W. was not dispositive because of the new issues raised in Kevin R., including new issues raised only by Kevin R.’s amici. The Court separated out amici’s supplemental arguments and addressed them in detail before reaffirming that juveniles lack the right to a jury trial in adjudicatory hearings.

The two-member dissent noted that Rule 213, SCACR, prohibits the Court from addressing matters raised only by the amicus curiae. And the rule says what it says, providing that an amici brief “shall be limited to argument of the issues on appeal as presented by the parties . . ..” Rule 213, SCACR.

The Supreme Court, however, earlier held that it may entertain new issues raised only by amici curiae when the issues concern a matter of significant public interest.

An earlier post lays this out.

Amici May Be Friends of a Party 

A larger point is that the amici in Kevin R. quite clearly took Kevin’s side when they argued that he was entitled to a jury trial. They went so far as to argue that juveniles need jury trials because family court judges are not as reliable as fact finders.

An earlier post of mine explains that amici have long acted as advocates for a party, and not just a friend of the court. This is so established that it is now news when a lawyer without a client submits an amicus brief for neither party.

Last month, a law review article examined this development and suggested that courts  distinguish between various types of amici. The “friend of the Court” could be a governmental entity, a court-appointed amici or invited friend, a party’s friend, or a party’s puppet.

Professor Helen T. Anderson, of the University of Washington School of Law, cautioned courts to draw these distinctions to take a closer look at the guest list.

What do you think? Have you ever opposed a motion to file an amicus brief, or raised new issues in one? Please leave a comment.

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