The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
Before the Court is the motion of the Pennsylvania School Boards
Association Insurance Trust ("Trust") to participaten amicus curiae. In
support of its motion, the Trust states that it "provides numerous
insurance related services for and on behalf of public school entities in
the Commonwealth of Pennsylvania, including school districts . . ."
Motion, at ¶ 2; that it participates regularly in litigation as a
party or amicus, see Motion, at ¶ 4; that counsel for the Trust is an
expert in insurance as it relates to public school entities, see Motion,
at ¶ 5; and that the Trust "can provide the court with insights as to
how this case may impact public schools and the insurance market place
for school districts," see Motion, at ¶ 6.
Meaning "friend of the court," amicus curiae has historically been used
to describe "an impartial individual who suggests the interpretation and
status of the law, gives information concerning it, and whose function is
to advise in order that justice may be done, rather than to advocate a
point of view so that a cause may be won by one party or another." Leigh
v. Engle, 535 F. Supp. 418, 419 (N.D.Ill. 1982) (citation omitted). Amici
are not parties to the case, but rather assist the court by "submitting
briefing designed to supplement and assist in cases of general public
interest, supplement the efforts of counsel, and draw the court's
attention to law that might otherwise escape consideration." Community
Association for Restoration of Environment v. DeRuyter Brothers Dairy,
54 F. Supp.2d 974, 975 (E.D.Wash. 1999) (citations omitted).
"District courts have broad discretion to appoint amicus curiae."
Liberty Lincoln v. Ford Marketing Corp., 149 F.R.D. 65, 82 (D.N.J. 1993)
Amici status is typically granted when the following conditions are
present: (1) petitioner has a "special interest" in the particular case,
see Waste Management of Pa. v. City of York, 162 F.R.D. 34, 36 (M.D.Pa.
1995); (2) petitioner's interest is not represented competently or at all
in the case, see Liberty Lincoln, 149 F.R.D. at 82; (3) the proffered
information is timely and useful, see Hoptowit v. Ray, 682 F.2d 1237,
1260 (9th Cir. 1982); and (4) petitioner is not partial to a particular
outcome in the case, see Yip v. Pagano, 606 F. Supp. 1566 (D.N.J. 1985),
but see Hoptowit, 682 F.2d at 1260 ("there is no rule . . . that amici be
Applying these four criteria, it is clear that appointing the Trust
amicus curiae in the present case in not appropriate. First, the Trust
has failed to demonstrate the particularized kind of "special interest"
courts have looked for in amici cases. For instance, in Waste
Management, the EPA was granted amicus status because it issued the
administrative order that was at issue in the case, see 162 F.R.D. at
35, and in Yip, which was a defamation action based on statements made
before the United States House of Representatives, amicus status was
granted to a leadership group of House members concerned with the
historically privileged nature of congressional testimony, see 606 F.
Supp. at 1567. By contrast, the Trust is merely a trade association with
a generalized interest in all cases related to school district liability
and insurance. This is not the kind of special interest that warrants
Petitioner fails the second prong as well, as the interests of school
board insurers are more than adequately represented by the school
district and its able counsel, Joseph T. Bodell, Esq., who apparently is
appointed and compensated by the school district's insurer. The interest
of the school district in limiting its liability in the present case is
identical to the interest of the Trust in limiting the liability of
school districts in general. Counsel for Marple Newtown School District,
including Mr. Bodell, and Mark Sereni, general counsel for Marple Newtown
School District, are more than competent to represent the interests of
the school district and the Trust in this case. If that were not enough,
counsel for the petitioner has already entered an appearance on behalf of
Marple Newtown, see Appearance of Michael I. Levin for Defendant Marple
Newtown, Document No. 70, (filed April 23, 1999) and thus, Marple Newtown
and the Court will benefit from Mr. Levin's considerable expertise (a
description of which forms a large part of the Trust's motion) regardless
of the outcome of this motion.
Third, the Trust proffers no particular information to the Court other
than its "insights," Motion, at ¶ 5, and "argument from time to time
on issues of statewide importance to school district [sic]," Motion, at
¶ 9. Petitioner's motion promises nothing more than a brief in support
of the Marple Newtown School District's motion for permission to appeal.
Petitioner has not satisfied the Court that it will provide any
information that the Court will find "useful" or "timely" in this
Fourth, the petitioner cannot be said to be impartial in the matter
before the Court. Petitioner, as an association of school district
insurers, has a specific pecuniary interest in the defendant's
perspective in this particular case, and makes no attempt to present
itself as a neutral party.*fn1 Where "amici represent[ ] business
interests that will be ultimately and directly affected by the court's
ruling on the substantive matter before it," amicus participation is not
appropriate. See Yip,
606 F. Supp. at 1568. While it is acknowledged that partiality of amici
is not dispositive, it is "a factor to consider in deciding whether to
allow participation." Waste Management, 162 F.R.D. at 36. It is apparent
to this Court that the petitioner is better characterized as "amicus
reus," or friend of the defendant, than amicus curiae. See Leigh, 535 F.
Supp. at 422.
On a more general note, petitioner's potential contributions to the
case would come largely at the policy level — as stated in its
motion, the Trust will contribute its "unique perspective" on the
"significant effect [of this case] on all public school entities and on
the insurance marketplace." Motion at ¶ 7. While policy arguments are
certainly interesting and perhaps helpful at the appellate level, they
are not the currency of a trial court. If policy arguments are to be the
Trust's only contribution to this case, then the judicial process is
better served if the Trust did not contribute at the district court
Based on the foregoing analysis, I cannot conclude in my discretion
that petitioner has satisfied the requirements for participation as
amicus curiae. Accordingly, the motion of the Pennsylvania School ...