Appellate Success, with a Little Help from Friends

A recent development in a much watched environmental case pending before the Texas Supreme Court reminded me that the involvement of a non-party can add value in an appeal.  A non-party that submits briefs, or in special cases participates in oral argument, is known as a friend of the court or amicus curie.

State of Texas Supports SWDA Preemption

On December 1, 2017 in City of Laredo v. Laredo Merchants Association, the Texas Supreme Court issued an order allowing the Texas Atty. Gen.’s office, on behalf of the State of Texas, to participate in oral argument, even though the State is not a party. The State had filed a friend of the court brief. After that filing, the Laredo Merchants Association asked the Court if the State could have some of the Association’s oral argument time, and the Court agreed.

The case is an appeal by the City of a decision by the San Antonio Court of Appeals (a mid-level appellate court) that the Texas Solid Waste Disposal Act (“SWDA”) pre-empted Laredo’s ordinance banning the use of plastic or one-time use paper check-out bags.  I mentioned this case in a prior Alert.

The State supports the position of the Association and the San Antonio Court that the SWDA preempts the City’s ordinance.  Other cities, including Houston and Galveston, have filed friend of the court briefs in support of the City of Laredo, calling for reversal of the mid-level court’s decision.

Friends of the Court Can Help in an Appeal

This development is a reminder that friends of the court can be very helpful to parties in an appeal. Like the United States Supreme Court and many state supreme courts, the Texas Supreme Court has discretion as to which cases it will consider. I have heard current Texas Supreme Court justices say that briefs submitted by friends of the court are often helpful in determining if the court will consider an appeal, as well as in deciding a case.

Briefs, and even oral arguments, by friends can often give a different perspective on the policy perspectives that support a particular party’s position.  Participation by friends tells the court that interest in the case is much wider than the individual parties, and perhaps wider than the specific business interest apparently involved.

In my most recent appellate argument, also before the Texas Supreme Court, the client authorized me to ask the Court to allow a friend of the court to have some of our oral argument time. I thought it was especially helpful that this friend of the court was an industry group that did not include the company that I represented. In this way, the Texas Supreme Court appreciated that other important industry groups agreed with the positions we were taking. We were successful in this appeal, and I think that the participation by this friend of the court was helpful in getting the court to accept the case for review, and eventually to decide in our favor.

Friends of the court can include industry groups, nongovernmental organizations, and even governments. Especially for appeals with broader policy implications, look for ways to get help from your friends.

For a copy of the State’s brief Click here.

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