N.M. R. App. P. 12-320

As amended through February 27, 2024

Rule 12-320 - Amicus curiae

A.Leave to file. A brief of an amicus curiae may be filed only on order of the appellate court. A motion for leave to file an amicus brief shall identify the interest of the prospective amicus curiae and shall state the reasons why a brief of an amicus curiae would assist the Court. The brief shall be conditionally filed with the motion for leave, unless otherwise ordered by the Court. An amicus brief should bring to the attention of the appellate court relevant matters that are not covered in the briefs of the parties. Motion practice under this rule shall be conducted in accordance with Rule 12-309 NMRA unless otherwise specified in this rule. The Court may act on a motion for leave to file an amicus brief prior to the filing of any response. If the Court permits an amicus curiae to participate, the brief that amicus curiae conditionally filed with the motion is deemed filed, and amicus curiae shall not file or serve a duplicate copy of the amicus brief.

B.Oral argument. The party whose position is supported by amicus curiae may share with an amicus the party's allotted time for oral argument. No additional time shall be granted except by leave of Court.

C.Disclosure. A brief filed under this rule shall indicate whether counsel for a party authored the brief in whole or in part and whether that counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made the monetary contribution. The disclosure shall be made in a footnote on the first page of the text.

D.Direct appeals and cases in which discretionary review has been granted. Amicus participation in direct appeals and cases in which discretionary review has been granted shall proceed according to Paragraphs A through C of this rule and the following requirements.

(1)Notice. A prospective amicus curiae shall ensure that parties receive notice of the intention to file a motion and brief at least fourteen (14) days prior to the due date of the motion and brief. The body of the brief of the amicus curiae shall indicate that all parties received timely notice of the intent to file the brief.

(2)Briefing schedule. Unless otherwise ordered by the appellate court,

(a) a prospective amicus curiae shall file its motion and brief within seven (7) days after the due date of the principal brief of the party whose position it supports;

(b) an opposing party shall file any response to an amicus brief supporting the appellant or petitioner within forty-five (45) days after the appellate court grants amicus curiae leave to participate;

(c) an opposing party shall file any response to an amicus brief supporting the appellee or respondent within twenty (20) days after the appellate court grants amicus curiae leave to participate; and

(d) an amicus curiae is not permitted to file a reply without leave of the appellate court, which may be granted upon a showing of good cause.

(3)Form. A brief of an amicus curiae shall comply with the length limitations for a brief in chief and shall otherwise comply with the formatting requirements of Rules 12-305 and 12-318 NMRA.

E.Other proceedings. The appellate court may permit an amicus curiae to assist the court in determining whether to grant a request for discretionary review or extraordinary relief, such as an application for interlocutory appeal under Rule 12-203 NMRA, a petition for a writ of certiorari under Rule 12-502 NMRA, or a petition for an extraordinary writ under Rule 12-504 NMRA. Amicus participation under this paragraph shall proceed according to Paragraphs A through C of this rule. A brief under this paragraph shall comply with any length or formatting requirements that apply to the corresponding submission.

N.M. R. App. P. 12-320

As amended, effective 7/1/1990;9/1/1993; as amended by Supreme Court Order No. 06-8300-014, effective 7/15/2006; by Supreme Court Order No. 11-8300-025, effective for all appeals filed on or after6/28/2011; as amended by Supreme Court Order No. 13-8300-034, effective for all cases pending or filed on or after12/31/2013; 12-215 recompiled and amended as 12-320 by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016.

Committee commentary. - In 2016, the committee renumbered Rule 12-215 NMRA and placed it in the general provisions article as Rule 12-320 NMRA.

The addition in 2016 of new Paragraph E with respect to amicus briefs in "other proceedings" recognizes that amicus participation may be permitted in matters seeking discretionary review by the appellate courts, such as petitions for writs of certiorari and applications for interlocutory appeal, and in other proceedings seeking extraordinary relief. Amicus participation in these matters should focus on the grounds for which discretionary or extraordinary review is provided, see, e.g., Rule 12-502(C)(2)(d) NMRA (grounds for certiorari to the court of appeals); NMSA 1978, § 39-3-4(A) (1999) (grounds for interlocutory appeal), and should avoid arguments on the merits of the underlying case in which review is being sought.

Paragraph C requires amicus briefs to disclose whether counsel for a party authored the brief in whole or in part and whether a party or a party's counsel contributed money with the intention of funding the preparation or submission of the brief. A party's or counsel's payment of general membership dues to an amicus need not be disclosed. Paragraph C also requires amicus briefs to state whether any other "person" (other than the amicus, its members, or its counsel) contributed money with the intention of funding the brief's preparation or submission, and, if so, to identify all such persons. "Person," as used in Paragraph C, includes artificial persons as well as natural persons.

Paragraph C is not intended to deter the filing of any amicus brief but rather to preserve the integrity and transparency of amicus practice in New Mexico's appellate courts. The disclosure requirement is modeled on United States Supreme Court Rule 37.6. Coordination between the amicus and the party whose position the amicus supports is permitted and may be desirable, to the extent that it helps to avoid duplicative arguments. Coordination, such as sharing drafts of briefs, need not be disclosed under Paragraph C. Cf. Eugene Gressman et al., Supreme Court Practice 739 (9th ed. 2007) (Supreme Court Rule 37.6 does not "require disclosure of any coordination and discussion between party counsel and amici counsel regarding their respective arguments . . . .").

[Approved by Supreme Court Order No. 13-8300-034, effective for all cases pending or filed on or after December 31, 2013; as amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016.]

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ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, required amicus briefs to be filed with a motion for leave to file an amicus brief, unless otherwise ordered by the court, specified that amicus briefs should cover matters not covered in the briefs of the parties, rewrote the language regarding notice requirements, time limitations, length limitations, and the format for amicus briefs, allowed amicus briefs to be filed in other matters such as petitions for writ of certiorari and applications for interlocutory appeal, and revised the committee commentary; in the rule heading, deleted "Brief of an"; in Paragraph (A), after "may be filed only", deleted "upon" and added "on", after "interest of the", added "prospective", after "The brief", deleted "may" and added "shall", after "filed with the motion for leave", added "unless otherwise ordered by the Court", deleted "A motion for leave to file an amicus brief shall recite the position of all parties, as required by Rule 12-309(C) NMRA" and added the remainder of the paragraph; deleted former Paragraphs (B), (C), and (D), relating to notice, time limitations, and form, and redesignated former Paragraphs (E) and (F) as Paragraphs (B) and (C); in Paragraph (C), after "whether", deleted "such" and added "that", and after "who made", deleted "such a" and added "the"; added new Paragraphs (D) and (E); and in the committee commentary, added the first two paragraphs. The 2013 amendment, approved by Supreme Court Order No. 13-8300-034, effective December 31, 2013, required the disclosure of whether counsel for a party authored any part of the amicus curiae brief or contributed money to fund the brief and the disclosure of all persons other than the amicus curiae who contributed money to fund the brief; and added Paragraph F. The 2011 amendment, approved by Supreme Court Order No. 11-8300-025, effective June 28, 2011, required that an amicus brief recite the positions of all parties; that counsel for amicus notify all parties of the intention to file an amicus brief; that counsel for amicus file the amicus brief within seven days after the due date for filing the principal brief of the party the amicus supports; that the opposing party file a responsive brief within forty-five days after service of the amicus brief or within twenty days after service of an amicus brief in support of an appellee or respondent; and that an amicus brief comply with the length limitations for a brief-in-chief; and permitted a party whose position is supported by amicus curiae to share the allotted time for oral argument. The 2006 amendment, approved by Supreme Court Order No. 06-8300-014, effective July 15, 2006, provided for an opposing party filing of a response to an amicus brief and for cause shown the filing of a reply by the amicus. The 1993 amendment, effective September 1, 1993, substituted "the party's allotted" for "his allotted" in the last sentence. Recompilations. - Pursuant to Supreme Court Order No. 16-8300-011, 12-215 NMRA was recompiled and amended as 12-320 NMRA, effective December 31, 2016.

For federal rule, see Fed. R. App. P. Rule 29. Amicus curiae must accept case on issues as raised by parties, and cannot assume functions of a party. State ex rel. Castillo Corp. v. N.M. State Tax Comm'n, 1968-NMSC-117, 79 N.M. 357, 443 P.2d 850. Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Amicus Curiae § 8 et seq.; 5 Am. Jur. 2d Appellate Review § 540. 4 C.J.S. Appeal and Error § 605 et seq.