Certiorari (ˌ, -ˈrɛəri, -ˈrɑri)
is a type of
writIn common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
seeking
judicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, recognized in
U.S.The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
,
RomanRoman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
,
EnglishEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
,
PhilippineCodification of laws is a common practice in the Philippines. Many general areas of substantive law, such as criminal law, civil law and labor law are governed by legal codes.-Tradition of codification:...
, and other law.
Certiorari ("to be more fully informed") is the
presentThe present tense is a grammatical tense that locates a situation or event in present time. This linguistic definition refers to a concept that indicates a feature of the meaning of a verb...
passivePassive voice is a grammatical voice common in many of the world's languages. Passive is used in a clause whose subject expresses the theme or patient of the main verb. That is, the subject undergoes an action or has its state changed. A sentence whose theme is marked as grammatical subject is...
infinitiveIn grammar, infinitive is the name for certain verb forms that exist in many languages. In the usual description of English, the infinitive of a verb is its basic form with or without the particle to: therefore, do and to do, be and to be, and so on are infinitives...
of the
LatinLatin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
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 lawRoman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, 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
UlpianGnaeus Domitius Annius Ulpianus , anglicized as Ulpian, was a Roman jurist of Tyrian ancestry.-Biography:The exact time and place of his birth are unknown, but the period of his literary activity was between AD 211 and 222...
.
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.” 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.” As Associate Justice
James WilsonJames Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
, the person primarily responsible for the drafting of Article III of the
United States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, 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 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.
Federal courts
In the
United StatesThe law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
, certiorari is most often seen as the writ that the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
issues to a lower court to review the lower court's judgment for legal error (reversible error) and review where no
appealAn appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
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, with the Supreme Court having 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 1925The Judiciary Act of 1925 , also known as the Certiorari Act, was an act of the United States Congress which sought to reduce the workload of the Supreme Court of the United States....
and the
Supreme Court Case Selections ActThe Supreme Court Case Selections Act of 1988 is an act of Congress that eliminated appeals as of right from state court decisions to the Supreme Court of the United States...
of 1988, 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. 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 fourThe rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket...
". 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%. Cases on the paid certiorari docket are substantially more likely to be granted than those on the
in forma pauperisIn forma pauperis is a Latin legal term meaning "in the character or manner of a pauper". In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense...
docket. The Supreme Court is generally careful to choose only cases over which the Court has
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
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 poolThe "cert. pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E...
. 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 courtsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
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 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. JenkinsMissouri v. Jenkins, 515 U.S. 70 , is a case decided by the United States Supreme Court. On June 12, 1995 the Court, in a 5-4 decision, overturned a District Court ruling that required the state of Missouri to correct de facto racial inequality in schools by funding salary increases and remedial...
. In particular, a denial of a writ of certiorari means that no
binding precedentIn law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
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 litigantVexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...
).
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. HellerDistrict of Columbia v. Heller, 554 U.S. 570 , was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as...
was known as
Parker v. District of Columbia in the court below.
State courts
Some
U.S. stateA U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
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 reviewDiscretionary review is the authority of appellate courts to decide which appeals they will consider from among the cases submitted to them. This offers the judiciary a filter on what types of cases are appealed, because judges have to consider in advance which cases will be accepted...
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 lawAdministrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
context, the
common-lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
writ of certiorari was historically used by lower courts in the U.S. for
judicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
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 ActThe Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
in a
United States district courtThe United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
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 is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
.
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.
Further reading