Fall 2017, Issue 4

ACFLS as Amicus Curiae: A Powerful Family Law Voice in Appellate Courts

ACFLS has joined the Harriett Buhai Center for Family Law as amici curiae in Bianka M. v. Superior Court (S233757) in the California Supreme Court. Bianka M. is shaping up to be one of the major family law and immigration crossover cases of the decade.1 Amicus committee member Claudia Ribet, CFLS, CALS put an extraordinary amount of work into researching and drafting the Supreme Court brief.

ACFLS’s amicus briefs and letters quietly play a powerful role in the development of family law precedent. Most recently, ACFLS successfully sought publication of In re Marriage of Minkin (2017) 11 Cal.App.5th 939.2 ACFLS also successfully sought publication of other cases including In re Marriage of Feldman (2007) 153 Cal.App.4th 1470; In re Marriage of Metzger (2014) 224 Cal.App.4th 1441; In re Marriage of Winternitz (2015) 235 Cal.App.4th 644; In re Marriage of Honer (2015) 236 Cal.App.4th 687; Altafulla v. Ervin (2015) 238 Cal.App.4th 571; In re Marriage of Siegel (2015) 239 Cal.App.4th 944; and In re Marriage of Brandes (2015) 239 Cal.App.4th 1461.

ACFLS appears as amicus curiae in important family law matters before state and federal appellate courts. On occasion, ACFLS submits amicus letters in support of or opposing California Supreme Court review petitions. ACFLS submits a number of amicus letters each year requesting publication of unpublished appellate decisions or seeking depublication of published opinions. ACFLS also partners with other family law organizations in amicus briefs and letters.

Members and the public can access ACFLS’s amicus briefs3 and letters, including the Bianka M. brief at https://www.acfls.org/page/Amicus.

Bianka M. involves the application of the findings necessary to enable an undocumented minor child to seek classification as a “special immigrant juvenile” in order to remain in the United States. This case also addresses the differences in parentage status between alleged parents and presumed parents and the extent to which an abandoning, alleged parent needs to be joined to an action before the trial court may grant special immigrant juvenile status.

ACFLS members and bench officers play a valuable role in ACFLS’s amicus work by alerting the chairs by email to pending appeals and writs addressing significant family law issues, to unpublished opinions that warrant publication, to published opinions that should be depublished, and to pending review petitions in the California Supreme Court that have significance for family courts. The timetable for intervention in these cases is typically quite brief, so it is important to get those alerts to the co-chairs as quickly as possible.

ACFLS is able to be an effective voice for family law in the appellate courts because of the hard work of the eighteen-member amicus committee.4 All three California lawyers who have been dual-certified by the State Bar Board of Legal Specialization as family law and appellate law specialists serve on the committee. Committee members include the authors of family law treatises, current and former law school faculty, and family law trial court and family law appellate court practitioners.

The committee is almost always actively reviewing opinions, briefs, or review petitions and responses and making recommendations to the ACFLS Board. On occasion, California’s appellate courts have invited us to brief important family law cases. ACFLS’s amicus briefs have also been cited in published appellate decisions including Elkins v. Superior Court, Montenegro v. Diaz, and Marriage of Buzzanca.

Publication and depublication requests dominate the work load of the amicus committee. California’s appellate courts hear a high volume of cases. Most appellate decisions are unpublished and may not be cited as precedent. Last year, 9% of all appellate opinions in California’s intermediate appellate courts were published. All California Supreme Court decisions are published. ACFLS considers several cases each month for publication or depublication requests. Many of ACFLS’s publication, and some of ACFLS’s depublication requests, are granted.

Typically the committee as a whole considers publication and depublication issues.5 When one or both co-chairs receive an opinion with a suggestion that ACFLS consider seeking publication or depublication, the opinion goes out by email to the entire committee. By email, the committee discusses whether the opinion meets the publication requirements of California Rules of Court, rule 8.1105 and whether the opinion makes good law. After discussion, the committee uses SurveyMonkey.com to poll the committee. If the committee recommends a “pub” or “depub” letter, one committee member will work on a draft while the ACFLS board votes. Despite the size of the committee, the committee doesn’t always have a member with the free time to draft, serve, and file a letter—the committee would welcome additional members.

From time to time, the committee receives a request to consider a Supreme Court review petition. The committee assigns a volunteer to read the petition, answer and reply and make recommendations to the committee as a whole. The committee typically reviews an email from counsel for each side in such cases. If the committee votes to weigh in as amicus, volunteers will draft the letter while the board votes on whether to follow the committee’s recommendation. Amicus letters address whether the case meets the criteria for Supreme Court review, whether it is a good vehicle for addressing important questions of family law, and how the issues to be reviewed would best be framed.

Drafting a full amicus brief is a formidable undertaking—typically several weeks of full-time work by one or more committee members. Most, if not all, of the ACFLS amicus briefs have been drafted by a committee member or members who brought the case to the committee and volunteered to do the work. Other committee members often edit or contribute to such briefs.

Most members see ACFLS at work through the Specialist, monthly continuing education programs, and the Spring Seminar. But ACFLS is also busy contributing to the development of family law through the legislation committee and the amicus committee.

1 The ACFLS brief is one of seven amicus briefs supporting Bianka M. and her right to obtain special immigrant juvenile status in the family law departments filed on behalf of twenty-three organizations and individuals including the California Attorney General, Immigrant Legal Resource Center, State Senator Kevin de Leon, Legal Services for Children, Family Violence Appellate Project, and Legal Aid Society of Orange County and Community Legal Services.

2 See Lisa McCall’s article on In re Marriage of Minkin elsewhere in this issue.

3 ACFLS filed amicus curiae briefs in the following cases:
In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410
In re Marriage of Kelso (1998) 67 Cal.App.4th 374
Lammers v. Superior Court (2000) 83 Cal.App.4th 1309
In re Marriage of Harris (2001) 92 Cal.App.4th 499 and
In re Marriage of Harris (2004) 34 Cal.4th 210
Montenegro v. Diaz (2001) 26 Cal.4th 249
In re Marriage of Scheppers (2001) 86 Cal.App.4th 646
In re Marriage of LaMusga (2005) 32 Cal.4th 1072
K.M. v. E.G. (2005) 37 Cal.4th 13
Elisa B. v. Superior Court (2005) 37 Cal.4th 108
Kristine H. v. Lisa R. (2005) 37 Cal.4th 156
Elkins v. Superior Court (2007) 41 Cal.4th 1337
Strauss v. Horton (2009) 46 Cal.4th 364
In re Marriage of Margulis (2011) 198 Cal.App.4th 277
Rand v. Board of Psychology (2012) 206 Cal.App.4th 565
Hollingsworth v. Perry (2013) 133 S.Ct. 2652
In re Marriage of Valli (2014) 58 Cal.4th 1396

4 The committee members are Steve Temko, Leslie Ellen Shear, Rick Cohen, Garrett C. Dailey, Dawn Gray, Mary-Lynne Fisher, Claudia Ribet, Lisa McCall, Debra Frank, Chris Melcher, Diana Richmond, Lynette Berg Robe, Steve Ruben, Christine Tour-Sarkissian, Andrew Westover, Stephanie Williams, Joe Bell, and Shane Ford. ACFLS members interested in joining the committee should contact ACFLS President Seth Kramer.

5 See California Rules of Court, rules 8.1100-8.1125 for the rules governing publication, citation, and requests for publication and depublication of appellate opinions.