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Archive for January 10th, 2009

(Jan 10, 2009) Certiorari



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Certiorari (IPA: [ˌsɚʃioʊ(‘rɛri, ‘rɑri)]) is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari (“to be searched”) is the present passive infinitive of Latin certiorare, (“to search”). 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.



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[edit] 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.

Certiorari 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. Basically, it grants that the case will be heard.

[edit] Australian law

Certiorari is available as an incidental remedy to the remedies of mandamus, prohibition, or injunction in the High Court of Australia – due to the effect of s75(v) of the Australian Constitution.

[edit] United Kingdom law

Historically, in the United Kingdom, Certiorari was issued to bring the record of an inferior court into the King’s Bench for review or to remove indictments for trial in that court. It evolves now as a general remedy 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.

[edit] United States law

[edit] Federal courts

In the United States, certiorari is the writ that an appellate court issues to a lower court in order to review its judgment for legal error and review, where no appeal is available as a matter of right. Since the Judiciary Act of 1925, most cases cannot be appealed to the U.S. Supreme Court as a matter of right; therefore, a party who wants that court to review a decision of a federal or state court files a “petition for writ of certiorari” in the Supreme Court. If the Court grants the petition (see Procedures of the Supreme Court of the United States), the case is scheduled for the filing of briefs and for oral argument.

Four of the nine Justices are required to grant a writ of certiorari, referred to as the “rule of four.” The great majority of cases brought to the Supreme Court are denied certiorari (approximately 7,500 petitions are presented each year, but just 80 to 150 are typically granted), because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important (especially cases involving deep constitutional questions) to merit the use of its limited resources. See also Cert pool.

The granting of a writ does not necessarily mean that the Supreme Court has found anything wrong with the decision of the lower court. Granting a writ of certiorari means merely that four of the Justices think that the circumstances described in the petition are sufficient to warrant the full Court reviewing the case and the lower court’s action. Conversely, the legal effect of the Supreme Court’s denial of a petition for a writ of certiorari is commonly misunderstood as meaning that the Supreme Court approves the decision of a lower court. However, 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, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created, and that the lower court’s decision is authoritative only within its region of jurisdiction.

Certiorari is sometimes informally referred to as cert, and cases warranting the Supreme Court’s attention as certworthy. One situation where the Supreme Court sometimes grants a writ of certiorari is when the federal appeals courts in two (or more) federal judicial circuits have ruled different ways in similar situations, and the Supreme Court wants to resolve that “circuit split” about how the law is supposed to apply to that similar kind of situation. Issues of this type are often called “percolating issues.”

Cert. granted sub nom is an abbreviation of the legal phrase “certiorari granted sub nomen”, 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 one that subordinate courts heard it. For example, the case of District of Columbia v. Heller was known as Parker v. District of Columbia in the court below.

[edit] 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.

[edit] 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.

Written by twelvebooks

January 10, 2009 at 5:59 pm