Sup. Ct. R. 29 governs the filing and service of Supreme Court documents. Also known as the Court’s “mailbox rule,” Rule 29.2 operates so that a document is filed with the Court if, on or before the due date, it is:
- Received by the Clerk;
- Shipped to the Clerk through the United States Postal Service using postmarked first-class mail (a commercial postage meter cannot be used); or
- Handed to a third-party commercial carrier for delivery to the Clerk within three calendar days.
The Rule is based on a presumption of reliability of the Postal Service and third party commercial carriers like FedEx and UPS. Rule 29.3 mandates that “three copies shall be served on each other party separately represented in the proceeding.”
Let’s take a look at how service is accomplished under Rule 29 at the petition and merits stages.
Petition for Writ of Certiorari:
A petition must be served on all parties to the proceeding in the court below who do not join in the petition, including those who may have once been aligned with the petitioner. This practice ensures that parties determine for themselves whether they should remain in the case. All parties other than the petitioner are considered respondents in the Supreme Court.
Rule 12.6 Letter: The petitioner may elect not to serve a party to the lower court proceeding by notifying the Clerk that the party has no interest in the outcome of the petition. Counsel should include a letter to this effect with his or her Supreme Court filing, and serve a copy of this letter on the uninterested party. A party noted as no longer interested may choose to remain a party by notifying the Clerk of an intention to remain active.
Service on a party represented by counsel must be made on the party’s counsel. If a single counsel cannot be determined, service may be made on the attorney most likely to notify the party below that a petition has been filed.
Brief In Opposition:
Respondent must serve counsel of record for the petitioner (evidenced by his or her appearance on the Court’s docket) and counsel for each other separately-represented respondent who does not join the brief in opposition being filed. Amici filers do not need to be served.
Petition-Stage Amicus Brief:
An amicus curiae filer must serve counsel of record for both the petitioner and respondent as they appear on the Court’s docket. If counsel for the respondent cannot be determined (because they have not yet filed a waiver or application for extension of time), amicus filers must individually determine on whom service should be made (contacting petitioner’s counsel is a good start).
Because attorneys for all parties have already made an appearance on the Court’s docket during petition stage briefing, filers at the merits stage need only serve counsel of record for the parties as they appear on the Court’s docket. They need not serve multiple attorneys for the same party. Amici filers do not need to be served.
Miscellaneous Rule 29 Notes:
- Failure to comply with the Court’s service rules is not a jurisdictional defect. The Court maintains the power to exercise discretion over its own docket despite service deficiencies.
- If the U.S. or any federal office/officer/employee is a party to be served, service shall be made on the U.S. Solicitor General. When a U.S. agency/officer/employee is a party, service should be made on both the Solicitor General and that agency/officer/employee. Ct. R. 29.4(a).
- If the petition draws into question an Act of Congress and the U.S. or one of its agencies/officers/employees is not a party, the petition must be served on the U.S. Solicitor General. Ct. R. 29.4(b).
- If the petition draws into question the constitutionality of a state statute and neither the state nor any agency/officer/employee thereof is a party, the petition must be served on the Attorney General of that state. Ct. R. 29.4(c).