MCCARTHY et al v. FULLER et al

Filing 311

ORDER. The Thomas More Law Center's Motion for Leave to File Amicus Curiae Brief (Dkt. 216) is DENIED, and the accompanying motion for admission pro hac vice (Dkt. 215) is DENIED AS MOOT. Bishop Thomas John Paprocki's Petition for Leave to Appear Pro Hac Vice and Motion for Leave to File as Amicus Curiae (Dkt. 218) is DENIED. The Clerk of the Court is directed to return to Ms. Merino her pro hac vice filing fee. (It appears that Bishop Paprocki did not pay the fee, but if he did, it is to be returned as well.) In addition, the appearance of Diamond Hirschauer (Dkt. 214), though denominated an appearance as co-counsel for a party, is in substance an appearance for the Law Center. Her appearance is therefore STRICKEN. If the court has misapprehended the nature of Ms. Hirschauer's appearance, she may file an appearance clarifying her role. Signed by Magistrate Judge Debra McVicker Lynch on 3/29/2012. (LH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEVIN B. MCCARTHY, et al.,
Plaintiffs,
v.
PATRICIA ANN FULLER, et al.,
Defendants.

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Case No. 1:08-cv-994-WTL-DML

Order on Amicus and Pro Hac Vice Motions
(Dkt. Nos. 215, 216, 218)
Two non-parties, the Thomas More Law Center (“Law Center”) and The Most Reverend
Thomas John Paprocki, Catholic Bishop of Spingfield-in-Illinois Diocese (“Bishop Paprocki”),
have requested leave to file amicus curiae briefs in support of the plaintiffs’ efforts to obtain a
stay of this case.1 Attorney Erin Mersino of the Law Center also requests pro hac vice admission
in connection with the Law Center’s amicus curiae motion, although she identifies herself in her
motion for admission as co-counsel for plaintiff Albert Langenskamp. Bishop Paprocki is also
an attorney, and he seeks to appear pro hac vice2 as well as amicus curiae.
The Federal Rules of Civil Procedure do not address participation of amicus curiae at the
trial court level, and based on this court’s review, such participation is uncommon. The court
will entertain these requests on their merits despite the absence of a rule explicitly governing the

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The Law Center also wants to provide support for the plaintiffs’ motion requesting the
court to take judicial notice of the matters in a declaration the plaintiffs have submitted. To that
extent, its amicus curiae request is moot because the court has denied the plaintiffs’ motion. See
Dkt. 268.
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He later, however, informed the court that he seeks to appear pro se as an amicus curiae.
See Dkt. 220.

requests, and in doing so will employ the principles used in evaluating motions brought under
Federal Rule of Appellate Procedure 29.
The most important of those principles is that the court has broad discretion in deciding
whether to permit amicus curiae participation in a case—or as the Seventh Circuit has put it,
allowing the filing of an amicus curiae brief is a matter of “‘judicial grace.’” Voices for Choices
v. Illinois Bell Telephone Co., 339 F.3d 542, 544 (7th Cir. 2003) (quoting National Organization
for Women v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000)).
The reasons militating against permission to file amicus briefs, irrespective of any
considerations applicable to these two particular requests, are compelling. First, amicus briefs
pose a significant additional burden on the court and likely on the opposing party, who often
deems it necessary to respond to the arguments the briefs have advanced. Second, more often
than not, amicus participation is not truly for the benefit of the court, but rather to bolster the
advocacy of a party and provide that party additional briefing to which it would not be entitled
under the applicable rules of the court. Third, amicus practice tends to drive up the costs of
litigation. See, e.g., Voices for Choices, 339 F.3d at 544.
The court finds all of those reasons applicable to the amicus curiae requests of the Law
Center and Bishop Paprocki. But there are some additional, more particularized reasons that also
lead the court to exercise its discretion not to permit the proposed amici to participate in this
case. The Law Center’s proposed brief is a generalized essay regarding its positions on the
Establishment and Free Exercise clauses of the First Amendment and on the deference the
government should accord to the Church and its ecclesiastical decisions. The brief contains no
articulation of the relevance of these general arguments to any of the specific claims or defenses
in this case. And though Bishop Paprocki’s proposed brief appears to be less “canned,” it suffers

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the same infirmity. This court has repeatedly had to remind the parties to focus on the issues
framed by the pleadings and has admonished them about straying far afield. Granting these
amicus curiae requests would be a step in the wrong direction.
Two additional observations support the court’s conclusion with respect to Bishop
Paprocki’s request. First, Bishop Paprocki cites his “unique position” as a secular lawyer, canon
lawyer, bishop, and, on occasion, ecclesiastical judge. (See Dkt. 218 at 3.) He goes on to
explain that he can aid the court by providing facts, insights, and explanations. Id. But that
description suggests the type of contribution a fact or expert witness would offer, and witnesses
must be subject to discovery. Bishop Paprocki acknowledges that he “has had both confidential
religious congregant-minister and confidential attorney-client communications with the plaintiffs
in this matter.” Id. at 2. So neither the court nor the defendants would be in a position to explore
all the bases, assumptions, and motivations underlying the facts, insights, and explanations he
seeks to offer. Second, the tenor of Bishop Paprocki’s reply brief in support of his amicus curiae
request (Dkt. 259) causes the court to worry that his participation would serve to increase only
the heat and not the light in this case. See Animal Protection Institute v. Martin, 2007 WL
647567, at *2 (D. Maine Feb. 23, 2007).
Conclusion
The Thomas More Law Center’s Motion for Leave to File Amicus Curiae Brief (Dkt.
216) is DENIED, and the accompanying motion for admission pro hac vice (Dkt. 215) is
DENIED AS MOOT. Bishop Thomas John Paprocki’s Petition for Leave to Appear Pro Hac
Vice and Motion for Leave to File as Amicus Curiae (Dkt. 218) is DENIED. The Clerk of the
Court is directed to return to Ms. Merino her pro hac vice filing fee. (It appears that Bishop
Paprocki did not pay the fee, but if he did, it is to be returned as well.) In addition, the

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appearance of Diamond Hirschauer (Dkt. 214), though denominated an appearance as co-counsel
for a party, is in substance an appearance for the Law Center. Her appearance is therefore
STRICKEN. If the court has misapprehended the nature of Ms. Hirschauer’s appearance, she
may file an appearance clarifying her role.
So ORDERED.
03/29/2012
Date: __________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
Marilyn A. Cramer
THE CRAMER LAW GROUP, LLC
[e-mail]
Christina Laun Fugate
ICE MILLER LLP
[e-mail]
Michael Joseph Lewinski
ICE MILLER LLP
[e-mail]
Jason A. McNiel
ICE MILLER LLP
[e-mail]
Bradley M. Stohry
ICE MILLER LLP
[e-mail]
Michael A. Swift
MAGINOT MOORE & BECK LLP
[e-mail]
LARRY YOUNG
P.O. Box 996
Lake Zurich, IL 60047

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