Certiorari

Certiorari (/ˌsɜːrʃⁱəˈrɛəraɪ/, /-ˈrɛəri/, or /-ˈrɑːri/), often abbreviated as cert. in the United States, is a writ seeking judicial review. It is issued by a superior court, directing an inferior court, tribunal, or other public authority to send the record of a proceeding for review.

Etymology

Certiorari is the present passive infinitive of the Latin verb certioro, certiorare ("to inform, apprise, show"). Thus, certiorari translates 'to be informed, apprised or shown'.

Historical and modern jurisdictions

Historical usage dates back to Roman Law. In modern law, certiorari is recognized in many jurisdictions, including the United States, The United Kingdom, Canada, India and the Philippines.

Ancient Rome

In Roman law, certiorari was suggested in terms of reviewing a case—much as the term is applied today—although the term was also used in writing to indicate the need or duty to inform other parties of a court's ruling. It was a highly technical term appearing only in jurisprudential Latin, most frequently in the works of Ulpian.

The term certiorari is often found in Roman literature on law but applied in a philosophical rather than tangible manner when concerning the action of review of a case or aspects of a case. Essentially, it states that the case will be heard.

Common law and Commonwealth

At common law, certiorari was a supervisory writ, serving to keep "all inferior jurisdictions within the bounds of their authority ... [protecting] the liberty of the subject, by speedy and summary interposition". In England and Wales, and separately in Northern Ireland, the Court of King's Bench was tasked with the duty of supervising all lower courts, and had power to issue all writs necessary for the discharge of that duty; the justices of that Court appeared to have no discretion as to whether it was heard, as long as an application for a bill of certiorari met established criteria, as it arose from their duty of supervision.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion.

As Associate Justice James Wilson, the person primarily responsible for the drafting of Article Three of the United States Constitution, explains:

In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An arrangement in this manner is proper for two reasons:

1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system.
2. It confines and supports every inferior court within the limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible.

Consistent with Justice Wilson's explanation, the power to issue writs of certiorari is invested in the highest court of every Commonwealth jurisdiction, in some way, shape, or manner. While some incorporate this remedy into their Constitutions, e.g., India, others treat it as an implied power of superior courts, e.g., Australia, but in all Commonwealth jurisdictions—as distinguished from their American counterpart—it has evolved into a general remedy for the correction of plain error, to bring decisions of an inferior court or tribunal or public authority before the superior court for review so that the court can determine whether to quash such decisions.

United States

Federal courts

In the United States, certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error (reversible error) and review where no appeal is available as a matter of right. Before the Evarts Act, the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases. That is, the Court had to review all properly presented appeals on the merits, hear oral argument, and issue decisions. As the United States expanded in the nineteenth century, the federal judicial system became increasingly strained, and the Supreme Court, which routinely took three months off every year, not surprisingly had a backlog several years long. The Act solved these problems by transferring most of the court's direct appeals to the newly created Circuit Courts of Appeals, whose decisions in those cases would normally be final. The Supreme Court did not completely give up its judiciary authority, however, because it gained the ability to review the decisions of the courts of appeals at its discretion through writ of certiorari.

Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, most cases cannot be appealed to the Supreme Court of the United States as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court. A "petition" is printed in booklet format and 40 copies are filed with the Court. If the Court grants the petition, the case is scheduled for the filing of briefs and for oral argument. A minimum of four of the nine Justices is required to grant a writ of certiorari, referred to as the "rule of four". The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that concluded in June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1 percent. Cases on the paid certiorari docket are substantially more likely to be granted than those on the in forma pauperis docket. The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources. See also Cert pool. While both appeals of right and cert petitions often present several alleged errors of the lower courts for appellate review, the Court normally grants review only of one or two questions presented in a certiorari petition.

The Supreme Court sometimes grants a writ of certiorari to resolve a "circuit split", when the federal appeals courts in two (or more) federal judicial circuits have ruled differently in similar situations. These are often called "percolating issues."

Certiorari is sometimes informally referred to as cert., and cases warranting the Supreme Court's attention as "cert. worthy". The granting of a writ does not necessarily mean that the Supreme Court disagrees with the decision of the lower court. Granting a writ of certiorari means merely that at least four of the justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court.

Conversely, the Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood as implying that the Supreme Court approves the decision of the lower court. However, as the Court explained in Missouri v. Jenkins, such a denial "imports no expression of opinion upon the merits of the case[.]" In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and the lower court's decision is treated as mandatory authority only within the geographical (or in the case of the Federal Circuit, subject-specific) jurisdiction of that court. The reasons for why a denial of certiorari cannot be treated as implicit approval were set forth in Maryland v. Baltimore Radio Show, Inc. (1950), in which the Court explained the many rationales which could underlie the denial of a writ which have nothing to do with the merits of the case.

Since the vast majority of petitions for certiorari are routinely denied without comment, it is normally unnecessary to indicate that fact in citations to decisions of lower federal courts, unless it happened within the last two years or was otherwise particularly relevant (e.g., to support an inference that a particular appellant is a vexatious litigant).

In legal citations, "cert. granted sub nom" is an abbreviation of the legal phrase "certiorari granted sub nomine", meaning "judicial review granted, under name", indicating that a petition for certiorari of a case has been granted, but that the court granting certiorari is hearing the case under a different name than the name under which the subordinate courts heard the case. For example, the case of District of Columbia v. Heller was known as Parker v. District of Columbia in the court below.

State courts

Some United States state court systems use the same terminology, but in others, writ of review, leave to appeal, or certification for appeal is used in place of writ of certiorari as the name for discretionary review of a lower court's judgment. A handful of states lack intermediate appellate courts; in most of these, their supreme courts operate under a mandatory review regime, in which the supreme court must take all appeals in order to preserve the loser's traditional right to one appeal (except in criminal cases where the defendant was acquitted). Virginia has an intermediate appeals court, but operates under discretionary review except in family law and administrative cases. Mandatory review remains in place in all states where the death penalty exists; in those states, a sentence of death is automatically appealed to the state's highest court.

In two states without an intermediate appeals court—New Hampshire and West Virginia—the supreme court used to operate under discretionary review in all cases, whether civil or criminal. This meant that there was no right of appeal in either state, with the only exception being death penalty cases in New Hampshire. (West Virginia abolished its death penalty in 1965.) However, New Hampshire transitioned to mandatory review for the vast majority of cases beginning in 2004, while West Virginia transitioned to mandatory review for all cases beginning in 2010.

Texas is an unusual exception to the rule that denial of certiorari by the state supreme court normally does not imply approval or disapproval of the merits of the lower court's decision. In March 1927, the Texas Legislature enacted a law directing the Texas Supreme Court to summarily refuse to hear applications for writs of error when it believed the Court of Appeals opinion correctly stated the law. Thus, since June 1927, over 4,100 decisions of the Texas Courts of Appeals have become valid binding precedent of the Texas Supreme Court itself because the high court refused applications for writ of error rather than denying them and thereby signaled that it approved of their holdings as the law of the state.

While Texas' unique practice saved the state supreme court from having to hear relatively minor cases just to create uniform statewide precedents on those issues, it also makes for lengthy citations to the opinions of the Courts of Appeals, since the subsequent writ history of the case must always be noted (e.g., writ refused, writ denied, etc.) in order for the reader to determine at a glance whether the cited opinion is binding precedent only in the district of the Court of Appeals in which it was decided, or binding precedent for the entire state. By way of contrast, California and New York solved the problem of creating uniform precedent by simply holding that the first intermediate appellate court to reach a novel question of law always sets binding precedent for the entire state, unless and until another intermediate appellate court expressly disagrees with the first one.

Administrative law

In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the United States for judicial review of decisions made by an administrative agency after an adversarial hearing. Some states have retained this use of the writ of certiorari in state courts, while others have replaced it with statutory procedures. In the federal courts, this use of certiorari has been abolished and replaced by a civil action under the Administrative Procedure Act in a United States district court or in some circumstances a petition for review in a United States court of appeals.

See also

• Allocatur
• Subpoena ad testificandum
• Subpoena duces tecum
• Certiorari before judgment

Further reading

• Lane, Charles. "It's Cert., to Be Sure. But How Do They Say It? Let's Count the Ways", The Washington Post, December 3, 2001 (archived).

External links

• The dictionary definition of certiorari at Wiktionary