I have before me motions for leave to file amicus curiae briefs. Fed. R.App. P. 29. The status of the movants impels me to state publicly my reasons for denying the motions.
The defendants, telephone compаnies that do business in Illinois and that I shall refer to collectively as “SBC,” appeal from the district court’s ruling that portions of the Illinois Public Utilities Act are preempted by the provisions of the Federal Telecommunications Act of 1996 that require owners of telecommunications network infrastructure, like SBC, to grant access to their networks by competing carriers on “rates, terms, and conditions that are just, reasonable and nondiscriminatory.” 47 U.S.C. § 251(c)(2)(D). The district court found that the Illinois statute conflicts with the federal act in two respects: The statute instructs the Illinois Commerce Commission to determine fill (the percentage of the netwоrk capacity that is being utilized), and depreciation costs on the basis of SBC’s actual costs, ignoring the Federal Telecommunications Act’s “hypothetical efficient provider” standard. And it amounts to “rateset-ting,” an activity that the federal act requires to be performed by state administrative bodies like the Illinois Commerce Commission rather than by the state legislature itself.
SBC’s brief on appeal argues that the Federal Telecommunications Act does not deprive the state legislature of the power to adopt standards for rate setting, that the district court’s ruling is contrary to the general principles governing рreemption, that anyway the standards adopted by the legislature for fill and depreciation are consistent with federal pricing rules, and that the district court improperly substituted its own view for that of the Illinois legislаture in concluding that the public interest would be disserved by the leasing rates that the Illinois statute would permit. The brief is long (58 pages) and comprehensive, despite which there are these two motions for leavе to file amicus curiae briefs. The first, submitted jointly by Mi
This court has held that whether to allow the filing of an amicus curiae brief is a matter of “judicial grace.”
National Organization for Women, Inc. v. Scheidler,
All this said, comity might seem to be a compelling reason to allow the filing of an amicus curiae brief by the leaders of a state legislature in an аppeal concerning the validity of a statute of their state; and there is no doubt that a union has an interest in the regulatory regime for an employer of its members. It might be argued therefore that I should not troublе myself to determine whether the proposed amicus curiae briefs fill gaps in or otherwise productively supplement the parties’ briefs. No doubt many courts would reason so, or would prefer to ignore amicus curiae briefs than to screen them. But in my view the argument from comity bespeaks a misunderstanding of the difference between the legislative and the judicial processes. The legislative process is democratic, and so legislators have an entirely legitimate interest in determining how interest groups and influential constituents view a proposed statute. Statutes pass because there is more political musсle behind than in front of them, not because they are “wise” or “just,” though they may be. The judicial process, in contrast, though “political” in a sense when judges are asked to decide cases that conventionаl legal materials, such as statutory and constitutional texts and binding precedent, leave undetermined, so that some mixture of judges’ values, temperament, ideology, experiences, and even emotions is likely to determine the outcome, is not democratic in the sense of basing decision on the voting or campaign-financing power of constituents and interest groups. An appeal
The fact that powеrful public officials or business or labor organizations support or oppose an appeal is a datum that is irrelevant to judicial decision making, except in a few eases, of which this not one, in which the position of a nonparty has legal significance. And even in those cases the position can usually be conveyed by a letter or affidavit more concisely and authoritatively than by a brief.
No mаtter who a would-be amicus curiae is, therefore, the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.
National Organization for Women, Inc. v. Scheidler, supra,
While the amicus briefs sought to be filed in this case contain a few additional citations not found in the parties’ briefs and slightly more analysis on some points, essentially they cover the same ground the appellants, in whose support they wish to file, do. (The state legislators’ brief is a mere seven and a half pages long.) This is not a case in which a party is inadequately represented, or the would-be amici have a direct interest in another case that may be materially affected- by a decision in this one, or they aré articulating a distinctive perspective or presenting specific information, ideas, arguments, etc. that go beyond what the parties whom the amici are supporting havе been able to provide. Essentially, the proposed amicus briefs merely announce the “vote” of the amici on the decision of the appeal. But, as I have been at pains to emphasizе in contrasting the legislative and judicial processes, they have no vote.
So saying, I intend no criticism of the movants and in particular no disrespect to Illinois’s senior legislative leaders. Nor do I mean to equate states with private persons as would-be participants in litigation in which they are not named as parties at the outset and perhaps do not wish to become parties. A state is entitled to file an amicus curiae brief without leave of court. Fed. R.App. P. 29(a). But Messrs. Madigan and Jones do not purport to be representing the state; nor is their brief signed by the state’s attorney general; and they sought leave to file it, which a state" need not do. The state could have intervened in the litigation as a matter of right, 28 U.S.C. § 2403(b), but has not done so — maybe the reason it didn’t do so is that the state is already a party, because the commissioners оf the Illinois Commerce Commission were named as defendants in the case, although the district court granted their motion to be declared nominal parties and to be excused from briefing and pleading requiremеnts and only SBC filed a notice of appeal.
There is something to be said for asking the state to speak in litigation with one
The “viewpoint of state officials” to which the Madigan-Jones brief refers does not appear to be any different from that of SBC. Naturally the legislative leaders wish to preserve the prerogatives of state legislatures against federal constitutional challenge, but SBC has the same goal and has briefed the issue more than adequately.
For the reasons explained, the motions for leave to file amicus curiae briefs are
Denied.