Posted April 22, 2016 12:21 PM
Updated April 27, 2016 9:55 AM
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A little help from my friends: amicus briefs a mosaic of interests

By Andrew Maloney
Law Bulletin staff writer

They are Nobel Prize winners, former U.S. senators and judges.

They also have criminal records, firearms and mental-health problems.

They are large corporations, like Ford, General Motors, ExxonMobil and U.S. Steel.

They also want political reform, education system changes and new sentencing schemes for juveniles.

Amicus curiae literally means “friend of the court,” and Illinois’ highest court has allowed hundreds of them to supply arguments in cases over the last few years.

About 200 different special interests — from the Aurora Pump Company and the National Shooting Sports Foundation to the Illinois Campaign for Political Reform and historians from Harvard, Princeton and Penn State — have helped Illinois’ top justices resolve cases by either joining in separate arguments or providing their own from 2011 through 2015, according to a Daily Law Bulletin analysis.

Parties who submitted amicus briefs were culled from the text of the official reports of Illinois Supreme Court decisions. Final decisions usually reference parties who filed friend-of-the-court briefs either in the heading compiled by the Recorder of Decisions, at the end of the “background” section on the case, or both.

The decisions also usually reference whether an amicus supported one side or the other, though not always.

The most consistent filers are legal-world heavyweights such as the Illinois Trial Lawyers Association and Illinois Association of Defense Trial Counsel.

But many of the parties the high court allows to file amicus briefs are loose, narrowly tailored coalitions that might only exist for the purpose of briefing. The court often gives them ad hoc titles such as “Economic Scholars” or “Certain Illinois Legislators.”

One filer in a 2011 decision on child-support payments is just one individual from Mesa, Ariz., listed as “Scott Wagner, pro se.”

It’s unclear from his brief how he is connected to the appellee in that case, Mark Wiszowaty, who also represented himself. A call to the phone number he gave to the court was never returned.

Another battleground

About 19 years ago, 7th U.S. Circuit Court of Appeals Judge Richard A. Posner famously called for more “fish-eyed” scrutiny of amicus briefs.

In particular, he warned against briefs filed by allies of the litigants that merely repeated their claims.

“Such amicus briefs should not be allowed. They are an abuse,” he wrote in a 1997 order explaining his rationale for denying such a brief. “The term ‘amicus curiae’ means friend of the court, not friend of a party.”

Illinois’ high court has “a somewhat similar reputation” as the 7th Circuit now in terms of being less generous to amicus filers as other jurisdictions, said Kirk C. Jenkins, a partner at Sedgwick LLP who studies both the Illinois and California supreme courts.

“In addition to the argument that no one’s discussing, the other way to guarantee rejection is if you file a brief that basically says, ‘us too,’” Jenkins said.

But the most frequent filers before the Illinois Supreme Court are known rivals who aren’t afraid to use cases as proxy battles for their preferred policies. The Illinois Trial Lawyers Association and the Illinois Association of Defense Trial Counsel have each appeared as amici in 20 and 14 of the high court’s 350-plus decisions, respectively, throughout the last five years. The next closest filer is the Cook County public guardian’s office, which has appeared in eight cases in that time span.

And right after the two groups finished battling over a plaintiff’s bar-backed bill in the legislature to halve civil juries, ITLA and IDC shifted terrain, fighting at the Supreme Court over “judge shopping.”

In short, the trial lawyers’ group called for a narrow reading of state law that would allow plaintiffs to dismiss their own cases and then refile them, essentially regaining the right to request a new judge in the process. The defense lawyers argued for judges to have discretion to deny such requests.

The defense lawyers won that round. But don’t be surprised when the battle rages on.

“I think (amicus briefs are) another path for our clients to be able to get their voices heard so that their issues are out in the forefront,” said Perry J. Browder, a shareholder at Simmons, Hanly, Conroy LLC in Alton and president of ITLA. “When they are taken, it’s a great way to have some other perspectives out there.”

Troy A. Bozarth, a partner at HeplerBroom LLC in Edwardsville and president of the IDC, said the group uses a strategy that basically echoes Posner’s critique.

“What we’re looking for are issues where we can truly be an amicus for the court, and that means where we can bring a perspective where the court might otherwise not have it,” Bozarth said, adding later that “we’re not a shill for any particular industry or anything like that. We truly try to be an advocate for the system.”

Concerned, et al.

Despite being front-loaded, the universe of amicus briefs at the high court is more of a mosaic than one solid image.

Alan Krueger, George Akerlof and Robert Solow are some of the most well-known and influential economists in America.

They have all served on the president’s Council of Economic Advisers. They have worked at the Brookings Institute, Yale University and the Massachusetts Institute of Technology. They have won two Nobel Prizes and one Presidential Medal of Freedom.

And they have all signed on to amicus briefs at the Illinois Supreme Court. In their case, it was the long-running battle over a multibillion-dollar lawsuit against cigarette maker Philip Morris.

Along with two other economists, they argued an initial $7 billion estimate of economic damages suffered by the plaintiffs was statistically accurate.

One group known as 40 Concerned Illinois Attorneys was, aptly enough, concerned the high court in 2013 might make it more difficult for convicted individuals to get a new trial. Former Gov. James R. Thompson, former U.S. Sen. Adlai Stevenson III (who challenged Thompson for governor twice) and former U.S. attorney Dan K. Webb were just a few members of the group.

They all argued the high court’s precedent-setting 1996 decision in People v. Washington created the right balance by determining a claim of innocence could be raised as a due process issue, but it required “new, material, noncumulative” evidence that would “probably change the result on retrial.”

Among other things, they wrote there hadn’t exactly been a crush of retrials since the court adopted that standard.

“In fact, the Washington standard is extraordinarily difficult to meet — only a handful of cases have been ordered to retrial on the basis of Washington,” the attorneys argued in their brief.

It’s difficult to say whether the brief altered the result substantively. But in reversing two lower courts and ordering the defendant in the case, Christopher Coleman, get a new trial, the high court justices reaffirmed their support for the old standard. And they gave their friends a shout-out in their unanimous decision.

“As we stated in Washington, ‘no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence,’” wrote Justice Mary Jane Theis. “That statement indicates that the standard we adopted is extraordinarily difficult to meet. In fact, as amicus informs us and our research confirms, courts of review have granted postconviction relief on actual-innocence claims in only three reported cases since 1996.”

But one need not be a high-powered attorney to have interest in a case or to attempt to sway the court. The justices took on another amicus brief that same year from another group of concerned individuals, the Concerned Inmates of Dixon Correctional Center. Its 10-page brief was authored using a typewriter and signed by Vincent Boggan, inmate number N-9228.

He and 30 others incarcerated there argued that since a three-year term of probation for a man convicted of drug-dealing was not mentioned in the sentencing hearing or report, it should either be thrown out or run alongside his 25-year prison sentence. An appeals court ruled the sentence attached automatically and didn’t have to be mentioned specifically. But the inmates argued that would be a constitutional violation.

“Amici contends, that if this [h]onorable [c]ourt should adopt the 4th District’s interpretation, as truly being the intent of the legislature, then Amici must respectfully pray that this court will enter a finding of unconstitutionality, pursuant to S. Ct. Rule 18, because such an intent of the legislature would undoubtedly render 5-8-1(d) unconstitutional in violation of the separation of powers clause, Art. II, Sec. 1 of the Illinois Constitution (1970).”

The concerned inmates didn’t have as much success as the concerned lawyers, though. The high court unanimously ruled against the defendant in the case, and their constitutional argument.

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