Certiorari

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Certiorari (/ˌsɜrʃⁱəˈrɛəraɪ/, /-ˈrɛəri/, /-ˈrɑri/)^[1][2] is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine,^[3] and other law. Certiorari ("to be more fully informed") is the present passive infinitive of the Latin certiorare ("to show, prove, or ascertain"). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.

Roman law

In Roman law, an action of 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 Jurisdictions

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.”^[4] In Great Britain, 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.”^[5] As Associate Justice James Wilson, the person primarily responsible for the drafting of Article III of the United States Constitution,^[6] 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.^[7]

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,^[8] others treat it as an implied power of superior courts. E.g., Australia.^[9] But in all Commonwealth jurisdictions--as distinguished from its 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.^[10]

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,^[11] 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.^[12] 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, with the Supreme Court having a backlog several years long.^[13] 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.^[14] 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.^[15]

Since the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988,^[16] most cases cannot be appealed to the U.S. Supreme Court 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.^[17] 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 are 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%.^[18] Cases on the paid certiorari docket are substantially more likely to be granted than those on the in forma pauperis docket.^[19] 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".^{[citation needed]} 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 to mean that the Supreme Court approves the decision of the lower court. Such a denial "imports no expression of opinion upon the merits of the case, as the bar has been told many times": Missouri v. Jenkins.^[20] In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court.

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 U.S. 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; 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. However, 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.

Administrative law

In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the U.S. 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.

Differences in post-trial actions

Certiorari is an action taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions, their differences being potentially confusing, thus bearing some explanation. Three of the most common are an appeal to which the defendant has as a right, a writ of certiorari, and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that (1) a mistake was indeed made, (2) an objection to that mistake was presented by counsel, and (3) that mistake negatively affected the defendant's trial.

A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial.

A writ of habeas corpus is the last opportunity for the defendant to find relief against his guilty conviction. Habeas corpus may be pursued if a defendant is unsatisfied with the outcome of his appeal and has been refused (or did not pursue) a writ of cert, at which point he may petition one of several courts for a writ of habeas corpus. Again, these are granted at the discretion of the court and require a petition. Like appeals or writs of cert, a writ of habeas corpus may overturn a defendant's guilty conviction by finding some error in the original trial. The major difference is that writs of habeas corpus may, and often, focus on issues that lay outside the original premises of the trial, i.e., issues that could not be raised by appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent, or (2) that some constitutional right has been violated.

As one moves farther down the chain of post-trial actions, relief becomes progressively more unlikely. Knowing the differences between these actions and their intended use are an important tool in increasing one's chances for a favorable outcome.

See also

• Allocatur
• Subpoena ad testificandum
• Subpoena duces tecum

References

1. ^ "Certiorari ! Define Certiorari at Dictionary.com". http://dictionary.reference.com/browse/certiorari?r=66. 
2. ^ "definition of certiorari from Oxford Dictionaries Online". http://www.askoxford.com/concise_oed/certiorari?view=uk. 
3. ^ "PHILIPPINE SUPREME COURT CIRCULARS - CHAN ROBLES VIRTUAL LAW LIBRARY". http://www.chanrobles.com/supremecourtcircular2-90.htm. 
4. ^ 3 Wm. Blackstone, Commentaries on the Laws of England 42 (1765).
5. ^ Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 (India)(internal quotation omitted) [1]
6. ^ The Oyez Project, Justice James Wilson [2] (last visited April 4, 2011).
7. ^ 2 The Works of James Wilson 149-50 (J. D. Andrews ed., 1896).
8. ^ India Const. art. 32, cl. 2 [3]
9. ^ Klewer v Dutch, [2000] 99 FCA 217 (H.C.)(discussion); High Court Rules 2004, Statutory Rules 2004 No. 304 as amended, made under the Judiciary Act 1903, Commonwealth Electoral Act 1918, Nauru (High Court Appeals) Act 1976 and High Court of Australia Act 1979 [4]
10. ^ Anisminic Ltd v Foreign Compensation Comm'n [1969] 2 AC 147; [1969] 2 WLR 163 (Court may correct any lower court decision "depart[ing] from the rules of natural justice," per Lord Pierce) [5]
11. ^ Ch. 517, 26 Stat. 826 (1891).
12. ^ Russel R. Wheeler & Cynthia Harrison, Fed. Judicial Ctr., Creating the Federal Judicial System 17–18 (3d ed. 2005).
13. ^ Wheeler & Harrison, supra, at 12, 16.
14. ^ Evarts Act § 6., 26 Stat. at 828.
15. ^ § 6, 26 Stat. at 828.
16. ^ Supreme Court Case Selections Act, Pub.L. 100-352, 102 Stat. 662 (1988)
17. ^ United States Supreme Court Rule 33
18. ^ Caperton v. Massey Coal, 556 U.S. __, __ (2009) (Roberts, C.J., dissenting) (slip op. at 11). See also http://www.supremecourt.gov/about/justicecaseload.pdf (10,000 cases in the mid-2000s); Melanie Wachtell & David Thompson, An Empirical Analysis of Supreme Court Certiorari Petition Procedures 16 Geo. Mason U. L. Rev. 237, 241 (2009) (7500 cases per term); Chief Justice William H. Rehnquist, Remarks at University of Guanajuato, Mexico, 9/27/01 (same).
19. ^ Thompson, David C.; Wachtell, Melanie F. (2009). "An Empirical Analysis of Supreme Court Certiorari Petition Procedures". George Mason University Law Review 16 (2): 237, 249. SSRN 1377522. 
20. ^ 515 U.S. 70 (1995)

Further reading

• Linzer, Peter (1979). "The Meaning of Certiorari Denials". Columbia Law Review (Columbia Law Review Association, Inc.) 79 (7): 1227–1305. doi:10.2307/1121841. JSTOR 1121841. 
• 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).