Certiorari


A writ of certiorari is a form of judicial review by which the Supreme Court directs the lower court to transmit records for a case for which it will hear on appeal.  A judgment or decree of a federal court of appeals, or a state court can be reviewed by the U.S. Supreme Court by writ of certiorari.  However, if an appeal is brought before the Supreme Court in an improper manner, it cannot be considered as a petition for the writ of certiorari.

The person who seeks certiorari must be a party to the case.  Parties interested can petition either jointly, severally, or separately.  However, an amicus is not a party to the case, and is not entitled to file a petition to seek certiorari.[i] In order to petition for a writ of certiorari, the counsel of the petitioner must file 40 copies of printed petition and also must pay the docket fee and the counsel has the responsibility to notify all respondents.[ii]

The petition for certiorari must contain a statement of questions presented for review and only those questions will be considered by the Supreme Court.[iii] Questions that are not raised in the petition are considered as abandoned [iv]although the questions can be reopened on remand.  However, the Supreme Court discourages the addition of more questions after a grant of certiorari.[v]

The general rule is that the questions that are not raised in the petition are not considered.  However, the Supreme Court can disregard the same in exceptional circumstances.  For example, the court can consider fundamental questions that are not raised in the petition for certiorari.  A petition for certiorari must include a concise statement of the case containing the facts material to consideration of the questions presented.[vi]

The writ of certiorari must be filed within 90 days after the entry of judgment.  The time limit for filing the petition is mandatory and jurisdictional.  The Supreme Court has no authority to extend the period except as Congress permits.[vii] However, if a petition for rehearing is timely filed in the lower court by any party, or if the lower court entertains an untimely petition or sua sponte considers rehearing, the time to file the petition for all parties runs from the date of the denial of rehearing.  And, if rehearing is granted, then from the subsequent entry of judgment.[viii] In most of the jurisdictions, a final judgment is a prerequisite to the certiorari review although some courts allow review even before the final judgment.

Within 30 days after a case is docketed, a respondent who wants to file a conditional cross petition must file with proof of service and also 40 copies of the cross petition.  A cross petition is required when a respondent seeks to alter the judgment.[ix] The respondent after the receipt of the petition within which to file 40 printed copies of an opposing brief.  A brief in opposition cannot be joined with any other pleading.  A brief in opposition must be stated briefly and in plain terms.[x]

The Court can grant certiorari:[xi]

  • When a U.S. Court of Appeals has entered a decision in conflict with the decision of another court of appeals on the same matter; or
  • Decided an important federal question in a way that conflicts with a state court of last resort; or
  • Departed from the usual course of judicial proceedings.

After considering the documents, the court will reach into an appropriate order which can be a summary disposition on the merits.[xii] When certiorari is once granted, the case must be disposed of on the premise that it is properly in the U.S. Supreme Court.  The court can dismiss the petition for certiorari if it finds that the case failed to present any substantial federal question for decision.[xiii] A writ of certiorari can also be dismissed if it appears that the judgment to be reviewed is sustainable on nonfederal grounds, if the record in the case fails to present the question for which certiorari was granted, if the petitioner loss standing, and if the judgment is not final.

[i] State v. Any & All Parties with an Interest in Prop. Identified As Tax Map 158, 2003 Tenn. App. LEXIS 448 (Tenn. Ct. App. June 23, 2003)

[ii] USCS Supreme Ct R 12

[iii] USCS Supreme Ct R.14.1

[iv] Communist Party of United States v. Subversive Activities Control Bd., 367 U.S. 1 (U.S. 1961)

[v] Hagen v. Utah, 510 U.S. 399 (U.S. 1994)

[vi] USCS Supreme Ct R 14

[vii] Young v. Harper, 520 U.S. 143 (U.S. 1997)

[viii] USCS Supreme Ct R 13

[ix] Household Credit Servs. v. Pfennig, 541 U.S. 232 (U.S. 2004)

[x] USCS Supreme Ct R 15

[xi] USCS Supreme Ct R 10

[xii] USCS Supreme Ct R 16

[xiii] Wolf v. Weinstein, 372 U.S. 633 (U.S. 1963)