Public agency officials and employees may read newspaper articles about recently decided landmark cases in public sector labor and employment law, and may feel relief, anger, surprise, or vindication in the result. This is especially true if the decision impacts how the agency functions on a day-to-day basis. These same individuals may also find developing U.S. Supreme Court and California Supreme Court decisions important and interesting enough to want to join the fight directly in a particular case, and try to persuade the Court which way a case should be decided. Understandably, though, they would prefer not to do this if it meant their agency had to be a defendant in a lawsuit.
There is a way organizations can join the fight on landmark cases without having actually to be a party, and that is by filing an amicus curiae brief with the Court.
The brief of an amicus curiae (“friend of the court”) is submitted by a company, government agency, trade association, or other organization or individual who is not an actual party to the case but wishes to contribute argument or general information for the Court to consider. Leave of Court is required to submit an amicus brief. Although Courts usually grant such leave freely, they expect organizations seeking to file briefs to explain why they have an interest in the case’s outcome, and to explain what their brief can contribute that will help the Court decide. Such briefs can be filed not only in the U.S. Supreme Court and state Supreme Courts, but in state and federal intermediate appellate courts.
Why would a lower level appellate court decision in a particular case, or even a Supreme Court decision, be important to an agency? To understand this requires a short digression on the principle of precedent, something all lawyers learn in law school but rarely have occasion to explain in detail to clients. Rules of precedent require courts to follow the prior decisions of higher courts. In both state and federal courts, the decisions of trial courts (the first level of courts which conduct jury trials and bench trials, rule on requests for writs, and conduct other proceedings) are not precedential. Their decisions affect the parties only, and although for example a large jury verdict or an injunction may send a “signal” to an industry, the outcome does not control anyone except the parties. A Court of Appeal decision designated for publication, however, is controlling on all trial courts in the state. Thus, if the Court of Appeal holds that individual supervisors can be held personally liable under the Fair Employment and Housing Act (“FEHA”) for retaliation, then every trial court in the state has to follow that holding and has to take that position in every case.
The losing party may, a short time after the appellate case is decided, ask the California Supreme Court to review the case. The Supreme Court picks and chooses the cases it takes, and does so with an eye toward shaping California law. If the Supreme Court decides to review the Court of Appeal decision in our example, and ultimately reverses it, holding that supervisors cannot be personally liable, then every Court of Appeal as well as every trial court in California must follow this rule. (The Supreme Court in fact rejected a rule of personal liability for retaliation in Jones v. Lodge at Torrey Pines, 42 Cal. 4th 1158 (2008), a case in which our firm participated in amicus briefing.)
Federal courts work the same way. The first level of the appellate courts, the one that can issue binding decisions in California, is called the United States Court of Appeals for the Ninth Circuit, which lawyers commonly call just the “Ninth Circuit.” It covers other states as well, including Arizona, Nevada, Hawaii, and Alaska. Other federal circuits cover different states, and at the top of all the “circuits” is the United States Supreme Court, which, like the California Supreme Court, picks and chooses the cases it takes, and issues decisions that control all the circuit courts and all the federal trial courts. As you would expect, the California Supreme Court generally decides issues of state law, and the U.S. Supreme Court issues of federal law.
Thus, influencing how an appellate court decides a case can be important, and influencing how the U.S. Supreme Court or a state Supreme Court rules can be very important.
What are the best arguments for amicus curiae briefs to make? Generally, they are those that present the organizations’ unique perspective in a cogent light. For example, in an employment case between an individual and a private company, neither side may think to brief the Court on how the Justices’ decision will affect the public sector, where employment laws can apply differently. Briefing by public organizations can alert the Court to these issues, so that the Court’s holding can be phrased to avoid unintended problems in the public sector. Briefs can also emphasize the impact of the case’s ruling on particular segments of the workforce, for example, police, fire, utilities, or educators. Perhaps most importantly, the amicus brief can present practical, real-world examples from the sponsoring party’s industry, that show why as a public policy matter the Court should rule in a certain way, or at a minimum craft its ruling to avoid certain pitfalls.
In addition, although it is a less traditional function, amicus briefs can join the legal debate directly by advancing unique and/or creative legal arguments the parties might not have presented. It can develop one side’s legal case in an alterative way, or even in a more forceful way, if the party was reluctant to take certain approaches or positions. (That said, counsel for the actual parties have often spent enormous time on the case, and may not have made certain arguments for tactical reasons. It is best to coordinate with them in presenting arguments.)
What cases are coming up in which amicus curiae briefing is possible? For the U.S. Supreme Court, there are two cases that the Court just decided to hear. The first is Vance v. Ball State University, Case No. 11-556, in which the Court will decide whether Title VII’s definition of “supervisor” means only someone with power to take formal employment actions against an employee in question, or whether a broader definition applies. A supervisor is someone whose unlawful harassment in violation of Title VII can render the employer vicariously liable. Another case is Genesis HealthCare Corp. v. Symczyk, No. 11-1059, in which the Court will decide whether an employer can moot, and effectively end, a collective action under federal overtime laws by offering full relief to the named plaintiff, before he or she can persuade anyone else to join the class. Two upcoming California Supreme Court employment law cases are Salas v. Sierra Chemical Co., No. S196568, and Wisdom v. Accentcare, Inc., No. S200128. In Salas, the Court will decide the extent to which an employer sued for a violation of the FEHA can invoke as a defense the employee’s use of false documentation to obtain the job. This defense is commonly referred to as the “after-acquired evidence doctrine.” In Wisdom v. Accentcare, the Court will decide if an employer can hold a job applicant to a promise in an employment agreement to arbitrate disputes rather than go to Court. (The deadline for amicus briefs has passed in this case, but the fact that oral argument will not occur until fall 2012 and the lack of any substantial amicus briefing may mean the Court may still accept amicus briefs).
As described above, intermediate appellate cases are important areas for amicus briefing as well. What are a few rapidly developing areas of employment law to which amicus briefing could contribute at this level? A partial list is the vested rights of public employees in retirement benefits (a very rapidly developing area), enforceability of arbitration agreements, cyber-bullying and the First Amendment rights of students, use and misuse of social media by public employees, anything regarding the scope of laws against harassment and discrimination, and increasingly the protections for concerted activity of individual non-unionized employees under labor relations statutes. This is definitely a partial list, however. In fact, any published case that has an important effect on public employers is worth consideration as a candidate for amicus briefing.
What steps can an agency actually take? Trade associations and leagues designed to benefit the agency can help. The agency should be sure to consult lawyers with expertise not only in appellate law and preparation of amicus curiae briefs, but in the substantive area of law at issue – be it retirement, wage and hour, disability, employee free speech, privacy, or labor relations.