Introduction: The League's Appellate Role
Many cases reaching Colorado (or federal) appellate courts have the potential to impact at least some Colorado municipalities. The League has sought to limit its appearances before the appellate courts to cases of particular legal significance to a broad range of Colorado municipalities.
The League’s disposition to be selective about the appeals in which it participates reflects several considerations. For one thing, we have always assumed that, if CML began to appear routinely, we would diminish the significance of our amicus participation. Additionally, our legal staff has a variety of legislative and member service obligations, apart from writing amicus briefs.
League legal staff, who act as advocates before the General Assembly, are regularly involved in creating or preventing the creation of law that has a broad and very direct impact our member municipalities. Thus, an important consideration affecting the League’s decision to focus its legal staff on preparation of an amicus brief is whether this effort could detract from important legislative work of League legal staff.
Municipal members participating in court cases can request that CML file briefs on their behalf (read the procedure for requesting CML participation). The CML Amicus Committee reviews the requests and determines if there is a substantial likelihood that important law will be made affecting Colorado municipalities (view the procedure for review of request), and then makes recommendations on whether CML should participate or not to the CML Executive Board.
Considerations Affecting CML’s Decision Whether to Participate as Amicus Curiae
Among the considerations affecting the League’s decision are the following:
- Was the request made with sufficient time for the CML Amicus Committee to review the materials, meet to discuss the request, and make a recommendation to the CML Executive Board?
- How broad an impact does the lower court decision have, or would an adverse appellate decision have on Colorado municipalities? Would a broad spectrum of municipalities or only a very few be affected? Would municipalities be able to sidestep the problem caused by this decision by making a simple change in some procedure or practice? Does a narrow set of facts limit municipal exposure in this case? As a practical matter, is this decision likely to have a lasting impact on Colorado municipalities, or will this be a lot of work for a result that the legislature will reverse anyway?
- How serious would an adverse decision be on certain of our members, even if the impact is not felt across our membership?
- Does this case involve the fundamental division of power between municipalities and the state or federal government (as in preemption or home rule authority cases)?
- Does this case involve some critical aspect of municipal authority or liability, such as control of land use, right-of-way authority, personnel management, taxation and revenue, or governmental immunity?
- Does this case present an opportunity to accomplish in the judicial branch a result that we would be unlikely to achieve in the legislative branch (as has been the case, until recently, when cases involved division of regulatory authority between the state and local governments over oil and gas operations)?
- Do the parties and amicus lining up on the other side make League participation advisable?
- Does the briefing schedule require that CML’s brief be filed during the legislative session? Are the CML attorneys already pressed with other obligations?
- Alternatively, is outside counsel agreeable to preparing a brief for the League at no cost? The availability of an outside attorney to prepare a brief on behalf of the League can significantly affect the likelihood of the League’s participation.
Download the complete memo, League Amicus Participation: Process and Considerations (revised: Sept. 19, 2017).