Proposed amendments to Fed. R. App. P. 29 - amicus briefs

Proposed changes to various federal rules of practice include some that affect amicus practice.  From the comments posted and other commentary, it may be fair to say these proposals are somewhat controversial.

The proposed changes to Fed. R. App. P. 29 broadly involve two subjects.  The first subject relates to securing permission to file an amicus brief.  The second subject involves new disclosure rules aimed at persons or entities supporting amicus filings.  A new word count limitation is also proposed.

The "permission" changes would no longer permit an amicus brief to be filed if the parties consent.  Instead, all non-government amicus filers would need to move for permission to file, describing why the brief would be helpful and how it serves the following "purpose":

An amicus curiae brief that brings to the court's attention relevant matter not already mentioned by the parties may help the court.  An amicus brief that does not serve this purpose - or that is redundant with another amicus brief - is disfavored.

Proposed Rule 29(a)(2).

The "disclosure" changes are somewhat involved, so I won't attempt too much detail here.  These proposed rules do attempt to ascertain whether a party or its counsel have any majority interest in or control over the amicus filer.  They also require disclosure of certain contributions to the amicus filer.  Membership in the amicus filer may need to be disclosed in certain instances.  The Advisory Committee note accompanying these disclosure proposals states that "the Committee thinks that some disclosures about an amicus are important to promote the integrity of court processes and rules."

Finally, the word count requirement is changed to limit amicus briefs to no more than 6,500 words, absent court permission to file a longer brief.

The text of the proposed amendments, along with the Advisory Committee's report, can be found here: preliminary_draft_of_proposed_amendments_2024.pdf  Some of the comments on these proposals are worth your time for understanding the arguments for and against them, including the First Amendment right to associate implications; these comments are here: Regulations.gov  The Federalist Society summarizes these proposed rules - critically - here: Proposed Amendments to the Amicus Process Are a Solution in Search of a Problem | The Federalist Society

Comments on these proposals may be submitted no later than February 17, 2025.

Opinion highlights for the week of November 17, 2024

The Arkansas Supreme Court issued one opinion yesterday, and approved the Sixth Judicial Circuit's administrative plan.  On Wednesday the Arkansas Court of Appeals handed down seventeen opinions.  Some of the latter court's decisions shed light on appellate practice and procedure; two are summarized here.

In Privilege Underwriters Reciprocal Exchange v. Adams, 2024 Ark. App. 571, the trial court sanctioned Privilege and required it to pay a "sanction fee," attorney's fees, and costs.  Privilege appealed this order.  Although Adams argued that the appeal lacked finality, so that the court lacked jurisdiction, the court found that the appeal was proper under Ark. R. App. P.-Civ. 2(a)(13) since it imposed sanctions and finally disposed of the contempt issue.  Without the imposition of sanctions, the order would not have been final and appealable.  If the order had merely announced the trial court's determination of the parties' rights, yet contemplated further action, it would not have been appealable.

Baker, et al. v. Adams, et al., 2024 Ark. App. 577, involves an unfortunate set of facts.  The Plaintiffs moved to dismiss their amended complaint without prejudice under Ark. R. Civ. P. 41(a).  The Defendants responded with a motion to dismiss with prejudice based on alleged fraud.  The trial court denied the Plaintiffs' motion and granted the Defendants' motion.  The Plaintiffs appealed, but at one point questioned whether the trial court's order was final, since two Defendants had previously been dismissed without prejudice.  The Court of Appeals noted its distinction between dismissal of a claim without prejudice and dismissal of a party without prejudice - as to the latter, dismissal with or without prejudice is sufficient to obtain finality, so the case was final as to those two parties, too.  The court ultimately reversed the trial court, finding that the Plaintiffs had an absolute right to dismiss their case under Rule 41(a).

Opinion highlights for the week of November 10, 2024

The Supreme Court of Arkansas issued one opinion yesterday, a per curiam opinion in Goodrum v. State, 2024 Ark. 170.  Ark. Sup. Ct. R. 3-4(c)(2), which addresses the record in criminal cases, requires insertion of the verdict forms in the record when there was a jury trial below.  Upon review of this record, the court noted the absence of those forms, so the case was remanded to settle and supplement the record.

Twelve opinions were handed down by the Arkansas Court of Appeals on Wednesday.

In Harding v. State, 2024 Ark. App. 560, a panel of the court considered whether an issue was preserved for appeal.  At trial Harding moved to dismiss, claiming "[t]he State has in no way proven their case" and specifically challenging hearsay and the lack of testing to prove that the firearm involved actually could fire.  On appeal, Harding argued that there was insufficient evidence that he possessed the firearm. Referring to Ark. R. Crim. P. 33.1(c), the court noted that "a motion merely stating that the evidence is insufficient does not preserve issues concerning a specific deficiency...." Id. at 4.  The court found that Harding's motion below was not specific enough to preserve his argument on appeal.

Opinion highlights for the week of November 3, 2024

The Arkansas Supreme Court didn't hand down any decisions yesterday, but it did dispose of a number of motions.  The Arkansas Court of Appeals handed down 21 decisions.  Two of them meet my rough criteria for summarizing here.

Leaf Home Solutions v. Kunkel, 2024 Ark. App. 547, is a workers' compensation case.  After briefing was completed, the worker filed a motion to dismiss arguing that the Workers' Compensation Commission's order appealed from was interlocutory so that the appellate court lacked jurisdiction.

While WCC orders are ordinarily reviewable upon awarding or denying compensation - and "interlocutory decisions and decisions on incidental matters are not reviewable for lack of finality" - appealable orders are not limited to those that finally dispose of an entire case.  "[T]he test for determining whether a Commission order is appealable is whether it puts the Commission's directive into execution, ending the litigation or a separable part of it."  Id. at 5.

In this case, the WCC reversed an order compelling the worker to undergo a functional capacity examination; no issues were reserved in the order, nor was there a remand for further proceedings.  The Court of Appeals concluded:

Nothing before us indicates that there is anything left to resolve or any further action contemplated by the order on appeal.  Thus, we have jurisdiction to address the merits of the case.

Id. at 7-8.  The motion to dismiss was denied.

In Taylor v. State, 2024 Ark. App. 555, the Appellant argued that the State didn't negate his justification defense.  The Court of Appeals determined that his argument wasn't preserved for review because it "was not specifically argued in his motion for directed verdict."  Id. at 3.  The Appellant's motion for directed verdict after the State rested claimed the State had not met its burden of proof; his renewed motion perhaps referenced self-defense.  Id. at 2.  This was not sufficient to preserve the issue for appeal: "there was no focused argument regarding any specific element that the State failed to disprove...."  Id. at 4.

Comments are welcome - have a great weekend!

Eighth Circuit Judicial Conference, July 30 - August 1, 2025

This landed in my inbox just now.  The agenda isn't available yet, but this is a great opportunity to hear from and mingle with Eighth Circuit judges, appellate practitioners, and others.  See below for more information.

Opinion highlights for the week of October 27, 2024

The Supreme Court of Arkansas handed down five decisions yesterday.  The Arkansas Court of Appeals handed down twenty decisions on Wednesday.  Three of those Court of Appeals decisions shed some light on appellate practice; two address the finality of trial court decisions for the purpose of appeal, and one illustrates the necessity for addressing every basis for the trial court's decision when the trial court relies on alternate independent grounds.

Christian v. SWO Properties, 2024 Ark. App. 524, involved an appeal from a contempt finding based on the Appellants' failure to vacate certain property.  Among other arguments, the Appellants claimed there was not a final order in the underlying unlawful detainer case because the order contemplated further action before the trial court.  The court disagreed:

[The] order entered in the unlawful-detainer suit between these litigants was a final, appealable order because it addressed the issues presented by the parties and reserved no issues for later determination. It simply allowed an avenue for judicial resolution of damages if the future need arose. ... [Language in the order] served to extinguish all outstanding claims, counterclaims, and pending motions and ended the litigation, thus making it a final, appealable order.

Christian, 2024 Ark. App. 524, at 10.

In Roe v. Somach, 2024 Ark. App. 527, the trial court entered an order granting a default judgment, striking an amended answer, and stating that damages against the Appellants would be determined in a subsequent trial.  The appeal was from this order - damages had not yet been determined.  This was a final order for purposes of appeal.

Ordinarily, a judgment or order is not final and appealable if the issue of damages remains to be decided.  When, however, a default judgment that does not resolve damages is coupled with an order striking an answer, an appeal may be taken. [A decision of the Supreme Court] held that the specific provision in Arkansas Rule of Appellate Procedure-Civil 2(a)(4) that allows an appeal from an order that strikes all or part of an answer controls over the more general rule of Rule 2(a)(1), which requires a "final judgment."

Roe, 2024 Ark. App. 527, at 4 n.1 (citations omitted).

Finally, in Shields v. State, 2024 Ark. App. 520, the trial court revoked the Appellant's probation on multiple grounds.  He did not challenge all of these grounds on appeal.  The Court of Appeals noted the rule: "When a trial court bases its decision on alternate, independent grounds, and the appellant challenges only one of those grounds, we will affirm without addressing the merits of either." Id. at 4.  For that reason, and the Appellant's admitted violations, revocation was affirmed.