Voices for Choices v. IL Bell Tele Co ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2735, 03-2766
VOICES FOR CHOICES, et al.,
Plaintiffs-Appellees,
v.
ILLINOIS BELL TELEPHONE CO., et al.,
Defendants-Appellants.
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Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 03 C 3290, 03 C 3643—Charles P. Kocoras, Chief Judge.
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SUBMITTED JULY 23, 2003—DECIDED AUGUST 6, 2003
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POSNER, Circuit Judge, in chambers. I have before me
motions for leave to file amicus curiae briefs. Fed. R. App.
P. 29. The status of the movants impel me to state publicly
my reasons for denying the motions.
The defendants, telephone companies that do business
in Illinois and that I shall refer to jointly as “SBC,” appeal
from the district court’s decision that portions of the Illi-
nois Public Utilities Act are preempted by the provisions
of the Federal Telecommunications Act of 1996 that re-
quire owners of telecommunications network infrastruc-
ture, like SBC, to grant access to their networks by compet-
2 Nos. 03-2735, 03-2766
ing 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. It instructs the Illi-
nois Commerce Commission to determine fill (the percent-
age of the network capacity that is being utilized), and
depreciation costs on the basis of SBC’s actual costs, ignor-
ing the Federal Telecommunications Act’s “hypothetical
efficient provider” standard. And it amounts to “rate-
setting,” an activity that the federal act requires to be
performed by state administrative bodies like the Illinois
Commerce Commission rather than by the state legisla-
ture itself.
SBC’s brief on appeal argues that the Federal Telecom-
munications 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 preemption, that anyway the standards adopted
by the legislature for fill and depreciation are consistent
with federal pricing rules, and that the district court im-
properly substituted its own view for that of the Illinois
legislature in concluding that the public interest would
not be served by the leasing rates that the Illinois stat-
ute would permit. The brief is long (58 pages) and com-
prehensive, despite which there are these two motions
for leave to file amicus curiae briefs. The first, submitted
jointly by Michael J. Madigan, Speaker of the Illinois
House of Representatives, and Emil Jones, Jr., President
of the Illinois Senate, claims that their proposed amicus
curiae brief “presents the opportunity for the Court to
consider certain issues from the viewpoint of state offi-
cials who play an instrumental role in establishing tele-
communications policy for the States.” The brief argues
that the Federal Telecommunications Act preserves the
legislature’s plenary authority to set rate-making policy
Nos. 03-2735, 03-2766 3
and that the district court failed to consider all the perti-
nent evidence in the record in concluding that the Illinois
statute conflicts with the federal statute. The second brief
is submitted by the Communications Workers of America,
which represents more than half a million workers in
the telecommunications industry, including employees
of SBC. The union asserts that the Illinois statute was
intended to remedy problems attributable to artificially
low lease rates, including employee layoffs and decreased
services to customers, that the legislature can adopt stan-
dards for rate setting without violating the Federal Tele-
communications Act, and that the district court was mis-
taken to think that rates are to be set only in adjudicative
proceedings before the Illinois Commerce Commission.
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, 223 F.3d 615, 616
(7th Cir. 2000). The judges of this court will therefore
not grant rote permission to file such a brief, and in par-
ticular they will deny permission to file an amicus brief
that essentially duplicates a party’s brief. Id. at 617. The
reasons for the policy are several: judges have heavy
caseloads and therefore need to minimize extraneous
reading; amicus briefs, often solicited by parties, may be
used to make an end run around court-imposed limita-
tions on the length of parties’ briefs; the time and other
resources required for the preparation and study of, and
response to, amicus briefs drive up the cost of litigation;
and the filing of an amicus brief is often an attempt to in-
ject interest group politics into the federal appeals process.
Id. at 616.
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 appeal concerning the validity of
4 Nos. 03-2735, 03-2766
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 trouble 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 differ-
ence between the legislative and the judicial processes. The
legislative process is democratic, and so legislators have
an entirely legitimate interest in determining how inter-
est groups and influential constituents view a proposed
statute. Statutes pass because there is more political mus-
cle 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 conventional 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 should therefore not resemble a con-
gressional hearing.
The fact that powerful 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
cases, 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.
Nos. 03-2735, 03-2766 5
No matter 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, 223 F.3d at 616-17; Ryan v. CFTC, 125
F.3d 1062, 1063 (7th Cir. 1997) (chambers opinion); Georgia
v. Ashcroft, 195 F. Supp. 2d 25, 32 (D.D.C. 2002). In my
experience in two decades as an appellate judge, however,
it is very rare for an amicus curiae brief to do more than
repeat in somewhat different language the arguments in
the brief of the party whom the amicus is supporting.
Those who pay lawyers to prepare such briefs are not
getting their money’s worth.
While the amicus briefs sought to be filed in this case
contain a few additional citations not found in the par-
ties’ 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 are articulating a distinctive perspective or pre-
senting specific information, ideas, arguments, etc. that
go beyond what the parties whom the amici are sup-
porting have been able to provide. Essentially, the pro-
posed amicus briefs merely announce the “vote” of the
6 Nos. 03-2735, 03-2766
amici on the decision of the appeal. But, as I have been
at pains to emphasize 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 per-
sons 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 inter-
vened 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 commis-
sioners of 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 requirements and
only SBC filed a notice of appeal.
There is something to be said for asking the state to speak
in litigation with one voice. And insofar as the district court
in the decision that has been appealed placed limitations
on what a state legislature may do, not only in this case
but presumably in any like case that should arise in the
future, it might seem that the leaders of the legislature
have a direct interest in other cases, one of the situations
in which amicus participation is appropriate. But that
argument would imply that any state legislator should have
a right to file an amicus curiae brief when the constitu-
tionality of state legislation is challenged—an extreme
position that could invite a blizzard of briefs.
Nos. 03-2735, 03-2766 7
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 fed-
eral 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.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-6-03