By Bruce P. Merenstein
Special to the Legal
In 2002, then-3rd U.S. Circuit Court of Appeals Judge (and now U.S. Supreme Court Justice) Samuel Alito authored a single-judge opinion granting a motion for leave to file an amicus curiae brief. In explaining why he was granting the motion in Neonatology Associates, P.A. v. Commissioner, Alito noted that "some amicus briefs collect background or factual references that merit judicial notice," and some amici "are entities with particular expertise not possessed by any party to the case."
These observations comport with the historical basis of the amicus brief, which has its origins in the "Brandeis brief," a brief focusing on non-legal data and extra-record statistical information (though the original Brandeis brief, in the 1908 case of Muller v. Oregon, was actually a brief for the state of Oregon, a party to the action, and not an amicus).
Yet, in a recent Pennsylvania Superior Court decision, the court declined to rely on an amicus brief specifically because "the information contained in the amicus brief was not provided to the trial court for consideration."
In the case, Commonwealth v. Brown, the defendant challenged a trial court order refusing to transfer his case to juvenile court. In support of his arguments on appeal, a number of organizations and individuals filed an amicus brief in support of the defendant, "primarily devoted to discussing the neurological and psychological development of preadolescents and the juvenile justice system as a rehabilitative social institution." The court indicated that it found the brief "informative and enlightening." But, as noted, it refused to consider it because the information contained in the brief had not been presented to the trial court.
While ordinarily it is well established that an appellate court will not consider factual information not presented to the trial court and contained in the official trial court record, a primary purpose of an amicus brief, as Alito observed in Neonatology Associates, is to offer particular expertise and present factual information to the appellate court that it otherwise might not have before it.
Thus, the Superior Court’s reluctance to consider the "informative and enlightening" amicus brief of five respected organizations and three professors in Brown is somewhat odd. Making the court's decision even odder is its citation a few pages later to a law review article as support for its reasoning in reversing the trial court. Stranger yet, the author of the law review article was one of the professors whose amicus brief the court refused to consider.
Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing bmerenstein@schnader.com.
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.
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