Court makes some rule changes

Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law George Washington University Law School.

The Rules of the Supreme Court are changing, not in big ways, but in modest ways – some of which matter for practitioners, whether regulars or lawyers who have cases there only once in a while.  Adopted on April 19, and effective July 1, 2013, the full text, with the helpful (albeit unofficial) Clerk’s Comments, is posted here.  Here are the most significant changes, starting with those likely to affect most cases.

In the past, the Clerk would wait at least ten days after a brief in opposition to a petition for a writ of certiorari (or a motion to affirm or dismiss a jurisdictional statement) was filed before sending the papers to chambers.  Under revised Rules 15.5 and 18.7, that time has been extended to fourteen days, which is a small help, especially when the filing occurs late in a week.  One not familiar with the practices of the Clerk’s office might assume that the papers will be automatically sent around once the fourteen days have passed, but the practice is to send all the cases in a batch, once a week (during the months the Court is hearing arguments, on Wednesday for paid cases). That means that many petitioners (or appellants) will actually have a few additional days under both the old and new rules, unless something else changes.

The Court publishes a Case Distribution List each Term, from which it is easy to calculate when your reply brief actually has to be filed to be distributed with the other briefs in the case.  And if you are late, the Clerk will send around your reply, but the law clerks may have already drafted their memoranda before it arrives.  (The “pool memo,” which is drafted by a clerk for one of the eight Justices who participate in the “cert. pool” to divide the work of reviewing cert. petitions, is due in the chambers of the other seven participating Justices eight days after the case is distributed.)  In the same Rule, the Court made explicit what has always been implicit: the party with the right to reply can waive the fourteen days, which presumably means that, if you file early, the Clerk will send the papers forward with the next batch, even if you do not explicitly waive the remainder of your time.

The second change that affects all filers is in Rule 29.3, dealing with service.  In addition to the usual permissive methods, the Rule now requires electronic service of all filed papers, at the cert. as well as merits stage, with exceptions for pro se filers and those for whom an email address cannot be readily determined.  Most lawyers do this anyway as a matter of courtesy, and the existing practice requires it for merits briefs.  Despite the requirement for electronic service, the time for responding to all submissions still runs from filing, rather than electronic service.  Also of interest: there is no requirement that documents at the cert. stage be filed electronically.  It is unclear what the reason is for that, but for those who follow the Court closely, it would be helpful if cert.-stage filings were electronically available.  Perhaps this is the next step in the Court moving into the electronic era.

The Court has also clarified a question that sometimes befuddled counsel for a potential group of amici: must you tell the parties who all your amici might be, or is one enough?  Rules 37.2(a) & 37.3(a) answer the question in an amici-friendly way: one amicus is enough.

For motions made at the merits stage, Rule 21.1 now requires what most practitioners already do: include a statement of the position of the other parties.

Two other practices that have been followed and/or were implicit in the past have been codified.  Under Rule 28.8, any doubt about whether that a non-lawyer may argue in the Court has been expressly eliminated:  s/he cannot.  And under Rule 29.6, counsel must promptly inform the Clerk of material changes in corporate disclosure statements.

Amendments to Rule 12.6 clarify the timing of filings at the cert. stage by parties who appeared below but did not file petitions. If they nonetheless support granting the petition, they must file within thirty days, and that time will not be extended.  They are also required to notify counsel of their intent within twenty days after the petition is filed, which makes them, for these purposes, like amici that wish to support the petition.  As a result, true respondents will know that such a brief is coming and can obtain additional time to assess whether to respond to it in their opposition.

The Court also made it easier for those parties – principally defendants in criminal cases – to continue their IFP status in the Court.  First, Rule 39.1 will allow that continuation in cases from state as well as federal courts.  Second, where there is appointed counsel, no affidavit in support is required: counsel may either cite to the law providing for such appointment in their application or attach a copy of the appointing order.

There are two changes in the Rules on extensions of time, both in situations that most practitioners will rarely encounter.  Revised Rule 44.2 forbids any extensions of time for petitions for rehearing of denials of petitions for writs of certiorari or extraordinary writs, almost all of which are denied, even if they are timely. Rule 30.3 requires that certain requests for extensions of time must be made to a single Justice, in contrast to Rule 30.4, which allows most requests for extensions to be made by letter addressed to the Clerk.  The change to Rule 30.3 leaves its basic structure in place, but now makes clear that requests for an extension of time to file petitions seeking rehearing of judgments or decisions of the Court that have always been made to a single Justice can only be made at all if the ruling for which the extension is being sought was one “on the merits.”  Although the change is not entirely clear on its own, the combination of the Clerk’s comment and the change to Rule 44.2 lead to the conclusion that now extensions will not be granted to file for rehearing of orders coming within the addition to Rule 44.2, but that extensions may be granted (by a single Justice) if the extension is with respect to a decision on the merits.  That will surely include all cases argued, cases in which there is a summary affirmance, dismissal, or reversal, and perhaps others — but surely not denials of certiorari.

Some of the other changes continue the Court’s conversion from making requirements based on the number of pages in a document to the number of words – Rules 14.1(c), 24.1(c), and 34.2 – with exceptions for IFP filers who do not print their papers.  And minor amendments in Rules 33.1(d) and 33.1(g)(ii) make conforming changes to the Rules regarding the format for printing of certain lesser-used categories of briefs.

Finally, now that cases from the Supreme Court of the Virgin Islands can be brought to the Court, the definition of “state court” in Rule 47 has been expanded to include that court as well.