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In
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
, ''certiorari'' is a court process to seek
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English
prerogative writ A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflect ...
, issued by a
superior court In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "''Certiorari volumus''..." ("We wish to be made certain..."). Derived from the English common law, ''certiorari'' is prevalent in countries utilising, or influenced by, the common law''.'' It has evolved in the legal system of each nation, as court decisions and statutory amendments are made. In modern law, ''certiorari'' is recognized in many jurisdictions, including England and Wales (now called a "quashing order"), Canada, India, Ireland,
the Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
and the United States. With the expansion of
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), a ...
in the 19th and 20th centuries, the writ of ''certiorari'' has gained broader use in many countries, to review the decisions of administrative bodies as well as lower courts.


Etymology

The term ''certiorari'' (US English: , , or ; UK English: or ) comes from the words used at the beginning of these writs when they were written in Latin: ''certiorārī olumus' "
e wish E, or e, is the fifth letter and the second vowel letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''e'' (pronounced ); plura ...
to be made certain". ''Certiorari'' is the
present The present (or here'' and ''now) is the time that is associated with the events perceived directly and in the first time, not as a recollection (perceived more than once) or a speculation (predicted, hypothesis, uncertain). It is a period of ...
passive Passive may refer to: * Passive voice, a grammatical voice common in many languages, see also Pseudopassive * Passive language, a language from which an interpreter works * Passivity (behavior), the condition of submitting to the influence of on ...
infinitive of the Latin verb ''certioro, certiorare'' ("to inform, apprise, show"). It is often abbreviated ''cert.'' in the United States, particularly in relation to applications to the Supreme Court of the United States for review of a lower court decision.


Origins


Ancient Rome

Historical usage dates back to Roman Law. In Roman law, ''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.


English prerogative writ

In English common law, ''certiorari'' was a supervisory writ, serving to keep "all inferior jurisdictions within the bounds of their authority ... rotectingthe liberty of the subject, by speedy and summary interposition". In England and Wales, 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. As time went on, ''certiorari'' evolved into an important rule of law remedy:


Australia

In Australia, the power to issue ''certiorari'' is part of the
inherent jurisdiction Inherent jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other cou ...
of the
superior court In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction (see small claims court), which is restricted to civil ...
s.


Canada

In Canada, ''certiorari'' is a rarely-used power, part of the inherent jurisdiction of the superior courts. It is usually used to cancel a lower court's decision because of an obvious mistake. In ''R. v. Awashish,'' 2018 SCC 45, the Supreme Court of Canada restricted the use of ''certiorari'' in criminal matters. It ruled that ''certiorari'' can only be used to correct jurisdictional errors, i.e. when a court makes a decision that is out of its power to make; it cannot be used to correct legal errors, i.e. where a court makes a decision it is allowed to make, but decides incorrectly. The latter type of error can only be challenged through an appeal, once the court makes a final decision in the case. This is part of a general prohibition on
interlocutory appeal An interlocutory appeal (or interim appeal), in the law of civil procedure in the United States, occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under sp ...
s in criminal matters. ''Certiorari'' is also available if a decision affects the rights of a third party who would not have standing to appeal the decision. The Supreme Court declined to decide whether ''certiorari'' would be available to address a legal error that threatens irreparable harm to a party's rights that could not be cured on appeal.


England and Wales

In the courts of England and Wales, the remedy of ''certiorari'' evolved into a general remedy for the correction of
plain error The scope of review refers generally to the right to have an issue raised on appeal. It entails whether an issue was preserved by or available to an appellant on appeal. Scope of review is to the appellate court what the burden of proof is to the ...
, to bring decisions of an inferior court, tribunal, or public authority before the superior court for review so that the court can determine whether to quash such decisions. Reflecting this evolution in usage as a remedy after
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
nullifying a decision of a public body, in England and Wales, orders or writs of ''certiorari'' were renamed " quashing orders" by the Civil Procedure (Modification of Supreme Court Act 1981) Order 2004, which amended the Senior Courts Act 1981.


India

The Constitution of India vests the power to issue ''certiorari'' in the Supreme Court of India, for the purpose of enforcing the fundamental rights guaranteed by Part III of the Constitution. The Parliament of India has the authority to give a similar ''certiorari'' power to any other court to enforce the fundamental rights, in addition to the ''certiorari'' power of the Supreme Court. In addition to the power to issue ''certiorari'' to protect fundamental rights, the Supreme Court and the
High Courts High may refer to: Science and technology * Height * High (atmospheric), a high-pressure area * High (computability), a quality of a Turing degree, in computability theory * High (tectonics), in geology an area where relative tectonic uplift ...
all have jurisdiction to issue ''certiorari'' for the protection of other legal rights.


New Zealand

When the
Supreme Court of New Zealand The Supreme Court of New Zealand ( mi, Te Kōti Mana Nui, lit=Court of Great Mana) is the highest court and the court of last resort of New Zealand. It formally came into being on 1 January 2004 and sat for the first time on 1 July 2004. It re ...
was established a superior court in 1841, it had inherent jurisdiction to issue ''certiorari'' to control inferior courts and tribunals. The common law jurisdiction to issue ''certiorari'' was modified by statute in 1972, when the New Zealand Parliament passed the ''Judicature Amendment Act''. This Act created a new procedural mechanism, known as an "application for review", which could be used in place of ''certiorari'' and the other prerogative writs. The ''Judicature Amendment Act'' did not abolish ''certiorari'' and the other writs, but it was expected that as the legal profession adapted to the use of the new application for review, the writs would cease to be used.


Philippines

The Philippines has adapted the extraordinary writ of ''certiorari'' in civil actions under its
Rules of Court Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules are ...
, as the procedure to seek judicial review from the Supreme Court of the Philippines.


United States


Federal courts

As
Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some state ...
James Wilson James Wilson may refer to: Politicians and government officials Canada * James Wilson (Upper Canada politician) (1770–1847), English-born farmer and political figure in Upper Canada * James Crocket Wilson (1841–1899), Canadian MP from Queb ...
(1742–1798), the person primarily responsible for the drafting of
Article Three of the United States Constitution Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congres ...
, which describes the
judicial branch The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
of the
US federal government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a f ...
, explains: 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 Errors of various types may occur in legal proceedings and may or may not constitute grounds for appeal. Types of error * Harmless error is one considered not to have affected the trial's outcome and is thus not grounds for appeal. Harmless error ...
(
reversible error In United States law, a reversible error is an error of sufficient gravity to warrant reversal of a judgment on appeal. It is an error by the trier of law (judge), or the trier of fact (the jury, or the judge if it is a bench trial), or malfe ...
) and review where no
appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
is available as a matter of right. Before the
Judiciary Act of 1891 The Judiciary Act of 1891 ({{USStat, 26, 826), also known as the Evarts Act after its primary sponsor, Senator William M. Evarts, created the United States courts of appeals and reassigned the jurisdiction of most routine appeals from the district ...
, 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, and the Supreme Court had a backlog of cases 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 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 1925 The Judiciary Act of 1925 (43 Stat. 936), also known as the Judge's Bill or Certiorari Act, was an act of the United States Congress that sought to reduce the workload of the Supreme Court of the United States. Background Although the Judiciary ...
and the
Supreme Court Case Selections Act The Supreme Court Case Selections Act of 1988 (, codified at ) is an act of Congress that eliminated appeals as of right from state court decisions to the Supreme Court of the United States. After the Act took effect, in most cases, the only av ...
of 1988, most cases cannot be appealed to the Supreme Court of the United States 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 Grant or Grants may refer to: Places *Grant County (disambiguation) Australia * Grant, Queensland, a locality in the Barcaldine Region, Queensland, Australia United Kingdom *Castle Grant United States * Grant, Alabama * Grant, Inyo County, ...
the petition, the case is scheduled for the filing of briefs and for oral argument. A minimum of four of the nine justices is required to grant a writ of ''certiorari'', referred to as the "
rule of four {{about, the legal term, the 2004 novel, The Rule of Four The rule of four is a US Supreme Court practice that permits four of the nine justices to grant a writ of certiorari. It has the specific purpose to prevent a majority of the Court's member ...
". 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 percent. Cases on the paid certiorari docket are substantially more likely to be granted than those on the ''
in forma pauperis ''In forma pauperis'' (; IFP or i.f.p.) is a Latin legal term meaning "in the character or manner of a pauper". It refers to the ability of an indigent person to proceed in court without payment of the usual fees associated with a lawsuit or appea ...
'' docket. 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, utilizing tools such as the
cert pool The cert pool is a mechanism by which the Supreme Court of the United States manages the influx of petitions for certiorari ("cert") to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger on ...
. 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 of only one or two questions presented in a ''certiorari'' petition. The Supreme Court sometimes grants a writ of ''certiorari'' to resolve a "
circuit split In United States federal courts, a circuit split occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue. The existence of a circuit split is one of the factors that the Supreme Court of t ...
", 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". 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 as implying that the Supreme Court approves the decision of the lower court. As the Court explained in ''
Missouri v. Jenkins ''Missouri v. Jenkins'', 515 U.S. 70 (1995), 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 intentional racial ...
'', such a denial "imports no expression of opinion upon the merits of the case". In particular, a denial of a writ of ''certiorari'' means that no
binding precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
is created by the denial itself, and the lower court's decision is treated as mandatory authority only within the geographical (or in the case of the Federal Circuit, subject-specific) jurisdiction of that court. The reasons for why a denial of ''certiorari'' cannot be treated as implicit approval were set forth in ''
Maryland v. Baltimore Radio Show, Inc. In ''Maryland v. Baltimore Radio Show, Inc.'', 338 U.S. 912 (1950), the United States Supreme Court held that denial of a writ of certiorari could not be interpreted as anything other than a signal that fewer than four justices deemed it desirab ...
'' (1950), in which the Court explained the many rationales which could underlie the denial of a writ which have nothing to do with the merits of the case.


State courts

Some
United States state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its s ...
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 Discretionary review is the authority appellate courts have 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 i ...
of a lower court's judgment. The Supreme Court of Pennsylvania uniquely uses the terms ''
allocatur In law, ''allocatur'' (from med. Lat. ''allocatur'', "it is allowed") refers to the allowance of a writ or other pleading.Henry Campbell Black, ''Black's Law Dictionary (Second Edition)'' (1910), p. 60. It may also designate a certificate given by ...
'' (informally) and "allowance of appeal" (formally) for the same process. A handful of states lack intermediate appellate courts; in most of these, 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 (except in criminal cases where the defendant was acquitted). Virginia has an intermediate appeals court, but operates under discretionary review except in family law and administrative cases. Mandatory review remains in place in all states where the
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
exists; in those states, a sentence of death is automatically appealed to the state's highest court. In two states without an intermediate appeals court (New Hampshire and West Virginia), the Supreme Court used to operate under discretionary review in all cases, whether civil or criminal. This meant that there was no right of appeal in either state, with the only exception being death penalty cases in New Hampshire; West Virginia abolished its death penalty in 1965. New Hampshire transitioned to mandatory review for the vast majority of cases beginning in 2004, while West Virginia transitioned to mandatory review for all cases beginning in 2010. Texas is an unusual exception to the rule that denial of ''certiorari'' by the state supreme court normally does not imply approval or disapproval of the merits of the lower court's decision. In March 1927, the Texas Legislature enacted a law directing the Texas Supreme Court to summarily ''refuse'' to hear applications for writs of error when it believed the Court of Appeals opinion correctly stated the law. Thus, since June 1927, over 4,100 decisions of the Texas Courts of Appeals have become valid binding precedent of the Texas Supreme Court itself because the high court refused applications for writ of error rather than denying them and thereby signaled that it approved of their holdings as the law of the state. While Texas' unique practice saved the state supreme court from having to hear relatively minor cases just to create uniform statewide precedents on those issues, it also makes for lengthy citations to the opinions of the Courts of Appeals, since the subsequent writ history of the case must always be noted (e.g., no writ, writ refused, writ denied, etc.) in order for the reader to determine at a glance whether the cited opinion is binding precedent only in the district of the Court of Appeals in which it was decided, or binding precedent for the entire state. In contrast, California, Florida, and New York''Mountain View Coach Lines, Inc. v. Storms'', 102 A.D.2d 663, 476 N.Y.S.2d 918 (2d Dept. 1984). solved the problem of creating uniform precedent by simply holding that the first intermediate appellate court to reach a novel question of law always sets binding precedent for the entire state, unless and until another intermediate appellate court expressly disagrees with the first one. Meanwhile, some states, such as Pennsylvania and New Jersey, avoid the issue entirely by eschewing regionalized appellate courts; the intermediate appellate courts in these states may hear cases from all parts of the state within their subject-matter jurisdiction.


Administrative law

In the
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), a ...
context, the
common-law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
writ of ''certiorari'' was historically used by lower courts in the United States for
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
of decisions made by an
administrative agency A government or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an administratio ...
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 - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
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.


See also

* ''
Allocatur In law, ''allocatur'' (from med. Lat. ''allocatur'', "it is allowed") refers to the allowance of a writ or other pleading.Henry Campbell Black, ''Black's Law Dictionary (Second Edition)'' (1910), p. 60. It may also designate a certificate given by ...
'' * ''Certiorari'' before judgment *
Joint appendix A Joint Appendix typically refers to a submission of legal documents in support of a brief to a United States federal court of appeals or the Supreme Court of the United States. Description When a petition for writ of certiorari is granted by the ...
*
Petition for review In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review the decision of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of th ...
* '' Subpoena ad testificandum'' * '' Subpoena duces tecum''


References


Further reading

* {{cite journal, last=Linzer, first=Peter, year=1979, title=The Meaning of Certiorari Denials, journal=Columbia Law Review, volume=79, issue=7, pages=1227–1305, doi=10.2307/1121841, publisher=Columbia Law Review Association, Inc., 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). Writs Prerogative writs Latin legal terminology Appellate review Judicial review