Changes To the North Carolina Amicus Rules

What You Need To Know

On Oct. 18, the Supreme Court of North Carolina made significant changes to the Rules of Appellate Procedure as they apply to amicus curiae briefs. Said briefs were previously governed by Rule 28(i), which has been deleted and replaced with the new Rule 28.1. In addition, amendments have been made to Rules 15, 21, 22, 23, 28 and 31. The Court has made the changes publicly available, and a link is provided here: Order-Adopting-RAP-28.1-(Approved-18-October-2023).pdf (nccourts.gov). Although you should review the changes if you have any involvement with an amicus curiae brief, this memo is designed to highlight the most important aspects of the amendments.

Changes to Rules 15, 21, 22, 23 and 31

The changes clarify the availability of amicus curiae briefs with regard to various petitions. Previously, although amicus briefs were sometimes filed in support of or opposition to petitions, the Rules were largely silent on this practice. It has now been clarified that one may move to file amicus briefs on petitions for discretionary review (Rule 15), writ of certiorari (Rule 21), mandamus and prohibition (Rule 22) and supersedeas (Rule 23). This clarification was made by inserting the words “and any briefs filed under Rule 28.1” into the section of each of the above rules setting for what items would be considered by the Court in making its determination. In addition, it has also been clarified that amicus briefs will not be considered on petitions for rehearing (Rule 31).

Changes to Rule 28

As noted above, Rule 28(i) was deleted in its entirety and replaced by Rule 28(1). Also, the references to amicus briefs in Rule 28(j) as to word count were deleted and this is now governed by the new Rule 28.1(b)(3)(d).

Substantive Differences Between the Deleted 28(i) and the New 28.1

First of all, many provisions remain the same:   

• 1.   Motion and Brief to be filed contemporaneously (with more clarity that they are filed as separate documents). Rule 28.1(b)(1)
• 2.   The content of the motion requesting permission to file remains essentially the same. Rule 28.1(b)(2)
• 3.   A disclosure footnote about the parties involved with the brief is still required on the first page. Rule 28.1(b)(3)(c)
• 4.   The word count for an amicus in the Court of Appeals remains at 3,750, Rule 28.1(b)(3)(d)
• 5.   Service on parties is still required. Rule 28.1(b)(5).
• 6.   Parties may still serve a reply brief to an amicus within thirty (30) days of service of the amicus. It has been added that a party may serve a reply to an amicus on a petition within ten (10) days after service. There is still no reply allowed by an amicus. Rule 28.1(b)(6).

However, the following provisions have changed and should be considered for any future amicus filing:

• 1.   Overview: Rule 28.1(a): The new rule specifically states that one may seek to file an amicus on petitions. In addition, it is stated plainly that no response to an amicus motion will be accepted. Previously, the courts could allow responses by order.
• 2.   Organization: Rule 28.1(b)(3)(a): The new rule now mandates a specific structure for amicus briefs: cover page, subject index, table of authorities, statement of interest, list of issues, argument, conclusion stating the outcome sought, identification of counsel and proof of service. Previously there was no specific structure, so it appears the Court wants more uniformity in the structure of amicus briefs. Therefore, this rule should be strictly followed.
• 3.   Argument: Rule 28.1(b)(3)(b): This new rule specifically requires that amicus briefs focus on an issue on appeal. It will therefore be important to make sure that any broader discussions of policy, etc. are clearly tied to the issues before the court.
• 4.   Time for Filing: Rule 28.1(b)(4): Briefs in support of a party used to be due simultaneously with the due date of that party’s principal brief. Now, the due date for an amicus in support of a party is no later than seven (7) days after that party’s principal brief is filed (not from the time allowed, but the actual filing). The deadline for briefs not in support of a party used to be when the appellee’s principal brief was due, but is now no later than seven (7) days after appellee’s brief is filed. Moreover, the new rule specifically sets forth deadlines for petitions as well, which were not dealt with in the previous rule (no later than seven (7) days after the party being supported files its papers, or no later seven (7) days after the response to a petition is filed when then amicus is not filed in support of any party).  
• 6.   Participating in Oral Argument: Rule 28.1(c): The standard for allowing a motion by an amicus to participate in oral argument has been lowered. The old standard was extraordinary circumstances, but the new standard is only “for good cause shown.” This new provision also sets forth the required content of such a motion, and a deadline of no later than seven (7) days after the clerk provides notice of oral argument.
• 7. Identification of Amicus Curiae: Rule 28.1(d): There was no specific rule about this before. Amici are required to be identified in the title of a motion or brief, unless they are so numerous that it is not practical to do so.