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DALTON M. TAYLOR v. MAURICE ROBERTS

AUGUST 21, 1985

DALTON M. TAYLOR
v.
MAURICE ROBERTS



EN BANC

PRATHER, JUSTICE, FOR THE COURT

ON PETITION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The permissibility of granting leave to file an Amicus Curiae brief is focused upon by this petition of the Mississippi Association of Realtors, Inc., a non-profit organization of some 2,600 real estate brokers and sales persons.

 I.

 By definition an amicus curiae is one who is a "friend of the court" or a "by-stander," rather than an advocate or party who assists the court by offering information or otherwise. 3A C.J.S. Amicus Curiae 1 and 2, p. 422 (1973) Accord, 4 Am. Jur. 2d Amicus Curiae 2, (1962). The general purpose of an amicus curiae brief is "to call the court's attention to law or facts or circumstances in a matter then before it that may otherwise escape its consideration. 4 Am. Jur. 2d Amicus Curiae at 3. Accord 3A C.J.S. Amicus Curiae at 2. The Court grants this privilege within its discretion, but generally allows the interested persons or organizations the right to appear in matters of public interest.

 II.

 The practice of permitting amicus curiae participation to inform or advise the court is as old as the common law dating as far back as 1353. Y. B. Hil. 26 ed. III, 65 (1353), noted in Coney, Amicus Curiae: Friend of the Court, 9 DePaul L. Rev. 30, 33 (1960). The trend under modern practice regarding amicus curiae participation has been to liberally allow participation to help the court's general understanding and insight central to the court's decision and possible implications of its rulings.

 Through this century, the nature of amicus participation has changed. The early nomenclature of amicus briefs named the preparing attorney, while the latter practice of the 1930's named the sponsoring organization. By the late 1940's, amicus participants for the most part had lost their neutral status and had become interested groups or lobbyists in the courts. See O'Connor & Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35, 41 (1983). Recognizing that decision making of the courts was not made in a vacuum, amicus briefs were generally received by all courts. This Court has generally accepted amicus curiae briefs with liberality when timely filed. New Orleans Baptist Theological Seminary v. Lacy, 219 So. 2d 673 (Miss. 1969).

 III.

 Early this century, the United States Supreme Court established a criteria for amicus appearance that one must be" interested in some other pending case involving similar questions. "Northern Securities Co. v. U. S., 191 U.S. 555 (1903). However, the influx of briefs caused the court to adopt their rule in 1938 requiring consent of all parties to the litigation before amicus briefs were accepted, with certain few exceptions. However, this stringent limitation on filing caused an amendment in 1949. That amendment permitted amicus participation by written consent of all parties or by leave of the court when submitted a reasonable time prior to the court's consideration. When applying to the United States Supreme Court on motion for leave, the motion shall concisely state the nature of the applicant's interest, set forth facts or questions of law that have not been, or reasons for believing that they will not adequately be, presented by the parties, and their relevance to the disposition of the case. A party served with such motion may seasonably file . . . an objection concisely stating the reasons for withholding consent." See Sup. Ct. R. 36, 85 FRD 487.

 IV.

 The Supreme Court of Mississippi recognized in the Lacy case, supra, that where the parties were "represented by very able counsel who have filed an excellent and exhaustive brief" no assistance was needed.

 V.

 However, the bench and bar recognize that all modern courts are suffering from a deluge of cases and workload that is causing an increase in time and money for litigants. Evidencing a concern for delay and cost in court litigation, a committee of the Mississippi State Bar at the June, 1985 meeting suggested methods for elimination of delay and expense. One such suggestion proposed that this Court streamline rules to expedite disposition of cases. This delay problem and suggestion of the State Bar causes this ...


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