certiorari(redirected from Writ of cert)
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[Latin, To be informed of.] At Common Law, an original writ or order issued by the Chancery or King's Bench, commanding officers of inferior courts to submit the record of a cause pending before them to give the party more certain and speedy justice.
A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine whether any irregularities or errors occurred that justify review of the case. A device by which the Supreme Court of the United States exercises its discretion in selecting the cases it will review.
Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to review. A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from an intermediate appellate court to a superior appellate court, is regulated by statute. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court.
A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute. The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed. For example, a petition for statutory certiorari made to the Supreme Court of the United States must be prefaced by a motion for leave, or permission, to file such a petition. If a common-law writ is sought, however, the petitioner need only file a petition for certiorari.
After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued, designated as "cert. granted," when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law. Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration. In the practice of the Supreme Court, if a petition has been granted certiorari as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as "having been improvidently granted," which has the same effect as an initial denial of the petition. Practically speaking, this rarely occurs.
Some states have abolished writs of certiorari under their rules of appellate practice.
Brenner, Saul. 2000. "Granting Certiorari by the United States Supreme Court: An Overview of the Social Science Studies. Law Library Journal 92 (spring): 193–201.
Garmisa, Steven P. 2003. "Supreme Court Reviews Common Law on Certiorari, Old Appellate Cases." Chicago Daily Law Bulletin 149 (April 15): 1.
Hartnett, Edward A. 2000. "Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill." Columbia Law Review 100 (November): 1643–1738.
n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. Certiorari is most commonly used by the United States Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a Writ of Certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest. By denying such a writ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases.)
certiorariformerly a writ, now a statutory order made to transfer a cause from a lower court to a higher court. It is used as a means of allowing the High Court to regulate lower courts and tribunals.
CERTIORARI, practice. To be certified of; to be informed of. This is the
name of a writ issued from a superior court directed to one of inferior
jurisdiction, commanding the latter to certify and return to the former, the
record in the particular case. Bac. Ab. h.t.; 4 Vin. Ab. 330; Nels. Ab.
h.t.; Dane's Ab. Index, h.t.; 3 Penna. R. 24. A certiorari differs from a
writ of error. There is a distinction also between a hab. corp. and a
certiorari. The certiorari removes the cause; the hab. corp. only supersedes
the proceedings in below. 2 Lord Ray. 1102.
2. By the common law, a supreme court has power to review the proceedings of all inferior tribunals, and to pass upon their jurisdiction and decisions on questions of law. But in general, the determination of such inferior courts on questions of fact are conclusive, and cannot be reversed on certiorari, unless some statute confers the power on such supreme court. 6 Wend. 564; 10 Pick. 358; 4 Halst. 209. When any error has occurred in the proceedings of the court below, different from the course of the common law, in any stage of the cause, either civil or criminal cases, the writ of certiorari is the only remedy to correct such error, unless some other statutory remedy has been given. 5 Binn. 27; 1 Gill & John. 196; 2 Mass. R. 245; 11 Mass. R. 466; 2 Virg. Cas. 270; 3 Halst. 123; 3 Pick. 194 4 Hayw. 100; 2 Greenl. 165; 8 Greenl. 293. A certiorari, for example, is the correct process to remove the proceedings of a court of sessions, or of county commissioners in laying out highways. 2 Binn. 250 2 Mass. 249; 7 Mass. 158; 8 Pick. 440 13 Pick. 195; 1 Overt. 131; 2 Overt. 109; 2 Pen. 1038; 8 Verm. 271 3 Ham. 383; 2 Caines, 179.
3. Sometimes the writ of certiorari is used as auxiliary process, in order to obtain a full return to some other process. When, for example, the record of an inferior court is brought before a superior court by appeal, writ of error, or other lawful mode, and there is a manifest defect, or a suggestion of diminution, a certiorari is awarded requiring a perfect transcript and all papers. 3 Dall. R. 413; 3 John. R. 23; 7 Cranch, R. 288; 2 South. R. 270, 551; 1 Blackf. R. 32; 9 Wheat. R. 526; 7 Halst. R. 85; 3 Dev. R. 117; 1 Dev. & Bat. 382; 11 Mass. 414; 2 Munf. R. 229; 2 Cowen, R. 38. Vide Bouv. Inst. Index, h.t.