News From Terre Haute, Indiana


June 23, 2014

FLASHPOINT: Filing amicus briefs gives us voice in court

The United States Supreme Court and federal appeals courts decide important cases impacting the constitutional rights of everyone, the responsibilities of businesses toward consumers and the relationship between government and citizens. States such as Indiana have a stake in these questions, but how do states make their legal arguments known to the Supreme Court if they are not plaintiffs or defendants in the lawsuit the Court hears?

The answer is that Indiana and other states file amicus briefs, also called friend-of-the-court briefs, with the Supreme Court and federal appellate courts. If not a party to the lawsuit, a state can submit an amicus brief, a thoroughly researched legal document explaining the state’s interest in the case and legal argument for the judges to consider as they formulate their ruling.

As state government’s lawyer, I don’t make the laws but I have an obligation to defend the laws passed by the people’s elected representatives in the Legislature. My office defends Indiana statutes from current legal challenges in court, but we also must anticipate future challenges. By participating in amicus briefs in other states’ lawsuits, we both sharpen Indiana’s legal arguments in preparation for our own later cases and ensure that our views are understood by the judges who create the precedents that may guide — or even control — our future cases. Filing amicus briefs to explain a state’s legal interests is intrinsic to the job description of a state attorney general.

Cooperating with AG’s offices in other states, my office, since January 2009, has authored or co-authored 29 amicus briefs that other states joined, or signed on to; and we joined another 113 briefs that other states authored. Of the briefs Indiana participated in at the U.S. Supreme Court, 34 were filed at the “cert petition” stage, where justices consider whether to accept an appeal from a lower court; and another 79 were filed at the “merits” stage after the Court accepted a case. The rest were filed with other courts.

Staying in regular contact with our state AG counterparts, my office participates in briefs where states have strong common interests. Since 2009, approximately one-sixth of briefs were filed in cases involving the relationship between the federal government and states, as it’s important for states to raise questions if federal agencies exceed their authority. One in 10 briefs involved consumer protection and environmental laws impacting state enforcement authority. The largest group, one in four, involved criminal law. The vast majority of all criminal charges are filed by prosecutors at the state level, but many of the most serious state criminal cases eventually make their way to the federal judiciary on issues involving defendants’ constitutional rights to a fair trial.  

In a wide array of cases, many corporations and special interests submit their own amicus briefs conveying their positions to the Court, but states’ amicus briefs carry special significance because states represent the public as a whole. Because of the role sovereign states play in our system of federalism, states are not charged a filing fee to submit briefs to the Supreme Court. During annual meetings of the 50 state AGs held at the Supreme Court building in Washington D.C., the justices have encouraged states to file amicus briefs as an important view for their consideration. In my office, drafting and reviewing briefs is handled by Solicitor General Thomas M. Fisher, who argued three cases before the U.S. Supreme Court and wrote successful briefs in several more.  Our salaried attorneys don’t charge billable hours and amicus work is factored into our budget the Legislature approved in advance.  

Indiana should not stand silent as the important legal issues of our time are decided.  By authoring or joining amicus briefs, our state government’s voice can be heard on fundamental issues even if we are not parties to a case. Amicus briefs are an essential and powerful tool to use if my office is going to represent Indiana to the best of our skill and ability. My office will continue to file and join them when they serve the interests of our state.


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