Turnbull for Turnbull v. Fink
644 A.2d 1322
Del.
1994
Check Treatment
HOLLAND, Justice:

The Court has before it a motion by the Delaware Trial Lawyers Association (“DTLA”) to file an amicus curiae brief regarding the constitutionality of the limitations imposed by 2 Del.C. § 1329. The ap pellants have filed a joint opening brief. Pri- or to the filing of the appellants’ opening brief, this Court indicated that it was inclined to grant DTLA’s motion.

The appellants’ opening brief is problematic for the purpose of ruling on DTLA’s motion. The appellants’ opening brief states that they have declined to raise and argue the constitutionality of the limitations imposed by 2 Del.C. § 1329, in anticipation that issue will be addressed in the amicus curiae brief of DTLA. The appellant’s opening brief is inconsistent with the well-established principle of appellate procedure that, if a party appellant is represented by counsel, an amicus curiae cannot raise separate or additional issues for the consideration of an appellate court. United Parcel Service, Inc. v. Mitchell, 461 U.S. 56, 60 n. 2, 101 S.Ct. 1559, 1562 n. 2, 67 L.Ed.2d 732 (1981).

Parties’ Opening Brief

Must Raise Appellate Issues

The appealing party or cross-appellant is generally afforded the opportunity to select and frame the issues it wants to have considered on appeal. Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993). A corollary to that opportunity is a requirement that the appealing party’s opening brief fully state the grounds for appeal, as well as the arguments and supporting authorities on each issue or claim of reversible error. Id. Accord Rossitto v. State, Del.Supr., 298 A.2d 775, 778 (1972). Consequently, this Court has held that the failure of a party appellant to present and argue a legal issue in the text of an opening brief constitutes a waiver of that claim on appeal. Murphy v. State, 632 A.2d at 1152.

Amicus Curiae

Limitations on Participation

“[T]he privilege to be heard as an amicus curiae, as well as the manner and extent of participation, rests within the discretion of the court.” Giammalvo v. Sunshine Mining Co., Del.Supr., 644 A.2d 407, 408 (1994) (footnote omitted). Leave to appear as an amicus curiae does not confer the status of a party. When the parties are represented by counsel, the role of the ami-cus curiae is limited to assisting the court, by supplementing the efforts of the actual parties’ counsel, through the presentation of non-duplicative authoritative arguments. Id.

If the appellant or cross-appellant is represented by counsel, an amicus curiae brief is also limited to addressing the issues raised by counsel in the party’s opening brief. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n. 2, 101 S.Ct. 1559, 1562 n. 2, 67 L.Ed.2d 732 (1981). The appellants in the case sub judice are represented by counsel. Therefore, as an amicus curiae, DTLA is precluded from presenting argument on any issue which was not included in the appellants’ joint opening brief. See id.

This Case

Notwithstanding the appellants’ challenge to the constitutionality of 2 Del. C. § 1329 in the Superior Court, the failure to raise that issue in their opening brief constitutes its abandonment as a claim of error on appeal. Murphy v. State, Del.Supr., 632 A.2d 1150, 1152 (1993); Stilwell v. Parsons, Del.Supr., 51 Del. 342, 145 A.2d 397, 402 (1958). The appellants’ decision to rely upon DTLA to raise and argue the constitutionality of the limits imposed by 2 Del.C. § 1329 is attributable to an apparent misunderstanding of the limited role of an amicus curiae on appeal. * Accordingly, if the appellants are not afforded the opportunity to file an amended opening brief, DTLA will be precluded from arguing the constitutionality of 2 Del.C. § 1329.

Conclusion

The motion by DTLA to file an ami-cus curiae brief is granted. In the interests of justice, the appellants will be afforded fifteen days to file an amended opening brief, which includes all issues that they wish this Court to consider on appeal. DTLA will be permitted to simultaneously file an amicus curiae brief, not to exceed twenty pages, with non-duplicative argument and authority in support of any issue presented in the appellants’ amended opening brief.

Notes

*

The appellants' opening brief includes a request to file an amended brief regarding the constitutionality of the limitations imposed by 2 Del.C. § 1329, if this Court denied DTLA’s motion to file an amicus curiae brief.