Amicus Curiae Participation in Appeals - The Writ

Many cases that come before Nevada’s appellate courts raise issues of statewide importance, the disposition of which could have far-reaching implications. For that reason, such cases tend to attract the participation of non-parties who seek the status of amicus curiae, or “friend of the court.” An amicus brief may be submitted in an appeal or original writ proceeding.

The effect of such non-party contributions to the outcome differs from case to case. In one recent case before the Nevada Supreme Court that addressed questions about the State’s water law, almost thirty entities were granted the right to participate as amici, including municipal water purveyors, farmers, environmental groups and even a group of law school professors. Although the Court mentioned the amici in relation to the parties with whom they aligned, it did not cite specifically to their briefs. Mineral Cty. v. Lyon Cty., 136 Nev. Adv. Op. 58, 473 P.3d 418, 425 (2020). In another recent case, on the other hand, the Court not only considered the arguments of the amici but asked the parties for supplemental briefing to address them. See City of Mesquite v. Eighth Jud. Dist. Ct., 135 Nev. 240, 242, 445 P.3d 1244, 1248 (2019).

Procedures for Participating as an Amicus

The United States and the state of Nevada (including an officer, agency or political subdivision of either), or a state, territory or commonwealth may file an amicus brief as a matter of right. NRAP 29(a). All non-governmental would-be amici must obtain consent of all named parties or leave of court in order to file an amicus brief. NRAP 29(a). The motion seeking leave to file an amicus brief must identify the interests of the applicant, state the reasons why a brief of an amicus curiae is desirable, and be filed no later than seven days after the brief that the amicus seeks to support. NRAP 29(c), (f). Either party may oppose the motion for leave to file an amicus brief.

An amicus brief may support any party to the proceeding or no particular party. In the latter case, the amicus must file its brief no later than seven days after the appellant’s opening brief. NRAP 29(f).

Leave to file an amicus brief will only be granted when the viewpoint of the amicus will assist the court in deciding an issue on appeal. Generally, an appellate court will disregard an amicus brief that simply mirrors the arguments made by the parties. Dow Chem. Co. v. Mahlum, 115 Nev. 13, 15 n.1, 973 P.2d 842, 843 n.1 (1999). Conversely, if an amicus brief presents issues that are outside the bounds of the appeal, the appellate court may strike or otherwise not consider those issues. Potter v. Potter, 121 Nev. 613, 615 n.1, 119 P.3d 1246, 1248 n.1 (2005).

Contents of an Amicus Brief

An amicus brief must comply with NRAP 32 relating to the form of a brief. In addition, the cover must identify the party or parties the amicus supports and indicate whether the brief supports affirmance or reversal. An amicus brief need not comply with NRAP 28 but must include the following:

(1)   A disclosure statement pursuant to NRAP 26.1(a);

(2)   A table of contents, with page references;

(3)   A table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited;

(4)   A concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file;

(5)   An argument, which may be preceded by a summary of the argument; and

(6)   An attorney’s certificate that complies with the requirements contained in NRAP 28.2.

An amicus brief may not exceed one-half the maximum length authorized for a party’s brief. NRAP 29(e).

Oral Argument

A motion of an amicus to participate in oral argument will be granted only for extraordinary reasons. NRAP 29(h). If the party whose position is supported by the amicus yields a portion of its allotted time, the appellate court may be more inclined to grant an amicus’s motion to participate in argument.

By Invitation

The appellate court may, in its discretion, invite amicus participation in appeal or writ proceedings. NRAP 21(b)(3); NRAP 29(a). Whether to accept the appellate court’s request to participate as an amicus is voluntary. See Lorton v. Jones, 130 Nev. 51, 54 n.1, 322 P.3d 1051, 1053 n.1 (2014). The appellate court’s website maintains a list of cases in which amicus participation has been solicited. https://nvcourts.gov/Supreme/Amicus_Curiae_Briefs/

Practical Considerations

Even where the outcome of a case could have profound ramifications statewide, non-parties are often disinclined to spend the money to retain an appellate lawyer to file an amicus brief. A practical solution to this financial barrier is to gather a coalition of like-minded persons or groups to jointly file one amicus brief and share the associated costs. Although assembling stakeholders who have mutual interests can take some time and effort, the benefits of having your voices heard by the court can be invaluable. The appellate courts may be unaware of the potential unintended consequences of their decisions. Amicus participation can create more informed decision making.