The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(December 2017)
|Grounds for judicial review|
| Administrative law in|
common law jurisdictions
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civil law jurisdictions
In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court 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...").
Certiorari was inherited as part of English common law by the countries in the Commonwealth of Nations and by the United States. It has subsequently 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 "quashing order"), Canada, India, Ireland, the Philippines and the United States. With the expansion of administrative law 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.
The term certiorari (pronounced ( // , /-/ , or /-/ ) comes from the words used at the beginning of these writs when they were written in Latin: certiorārī [volumus] "[we wish] to be made certain". Certiorari is the present passive 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.
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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.
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 England and Wales, and separately in Ireland and later Northern Ireland, 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:
Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it. 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.
In Australia, the power to issue certiorari is part of the inherent jurisdiction of the superior courts.
In the courts of England and Wales, the remedy of certiorari 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.
Reflecting this evolution in usage as a remedy after judicial review 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.
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 all have jurisdiction to issue certiorari for the protection of other legal rights.
When the Supreme Court of New Zealand 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.
The Philippines has adapted the extraordinary writ of certiorari in civil actions under its Rules of Court, as the procedure to seek judicial review from the Supreme Court of the Philippines.
As Associate Justice James Wilson, the person primarily responsible for the drafting of Article Three of the United States Constitution,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:
- The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system.
- 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.
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 (reversible error) and review where no appeal is available as a matter of right. Before the Judiciary Act of 1891,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, 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 1925 and the Supreme Court Case Selections Act 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 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". 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 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. 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", 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. However, as the Court explained in Missouri v. Jenkins ,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 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. (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.
Some United States 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. The Supreme Court of Pennsylvania uniquely uses the terms allocatur (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 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.) However, 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 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.
In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the United States 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.
United States appellate procedure involves the rules and regulations for filing appeals in state courts and federal courts. The nature of an appeal can vary greatly depending on the type of case and the rules of the court in the jurisdiction where the case was prosecuted. There are many types of standard of review for appeals, such as de novo and abuse of discretion. However, most appeals begin when a party files a petition for review to a higher court for the purpose of overturning the lower court's decision.
In the United States, a state supreme court is the highest court in the state judiciary of a U.S. state. On matters of state law, the judgment of a state supreme court is considered final and binding in both state and federal courts.
The United States courts of appeals or circuit courts are the intermediate appellate courts of the United States federal judiciary. The courts are divided into 13 circuits, and each hears appeals from the district courts within its borders, or in some instances from other designated federal courts and administrative agencies. Appeals from the circuit courts are taken to the Supreme Court of the United States. The district, appellate, and Supreme courts are all authorized under Article Three of the United States Constitution.
The Court of Cassation is one of the four courts of last resort in France. It has jurisdiction over all civil and criminal matters triable in the judicial system, and is the supreme court of appeal in these cases. It has jurisdiction to review the law, and to certify questions of law, to determine miscarriages of justice. The Court is located in the Palace of Justice in Paris.
Appellate jurisdiction is the power of an appellate court to review, amend and overrule decisions of a trial court or other lower tribunal. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right. Depending on the type of case and the decision below, appellate review primarily consists of: an entirely new hearing ; a hearing where the appellate court gives deference to factual findings of the lower court; or review of particular legal rulings made by the lower court.
The writ of coram nobis is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and would have prevented the judgment from being pronounced. The term "coram nobis" is Latin for "before us" and the meaning of its full form, quae coram nobis resident, is "which [things] remain in our presence". The writ of coram nobis originated in the English court of common law in the English legal system during the sixteenth century.
The Court of Appeals of Maryland is the supreme court of the U.S. state of Maryland. The court, which is composed of one chief judge and six associate judges, meets in the Robert C. Murphy Courts of Appeal Building in the state capital, Annapolis. The term of the Court begins the second Monday of September. The Court is unique among American courts in that the judges wear red robes. The Maryland Court of Appeals joins the New York Court of Appeals in being the only two state highest courts to bear the name "Court of Appeals" rather than "Supreme Court".
The Supreme Court is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on June 11, 1901 through the enactment of its Act No. 136, an Act which abolished the Real Audiencia de Manila, the predecessor of the Supreme Court.
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 in advance which cases will be accepted. The appeals court will then be able to decide substantive cases with the lowest opportunity cost.
The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. Article III of the Constitution requires the establishment of a Supreme Court and permits the Congress to create other federal courts and place limitations on their jurisdiction. Article III states that federal judges are appointed by the president with the consent of the Senate to serve until they resign, are impeached and convicted, retire, or die.
The Supreme Court of Nepal is the highest court in Nepal. It has appellate jurisdiction over decisions of the seven High Courts and extraordinary original jurisdiction. The court consists of twenty Justices and one Chief Justice.
The Judiciary Act of 1925, 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.
The Supreme Court of the United States is the highest court in the federal judiciary of the United States. The procedures of the Supreme Court of the United States are governed by the U.S. Constitution, various federal statutes, and the Court's own internal rules. Since 1869, the Court has consisted of one chief justice and eight associate justices. Justices are nominated by the president, and with the advice and consent (confirmation) of the U.S. Senate, appointed to the Court by the president. Once appointed, justices have lifetime tenure unless they resign, retire, or are removed from office.
A supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
In the United States, jurisdiction-stripping, is the limiting or reducing of a court's jurisdiction by Congress through its constitutional authority to determine the jurisdiction of federal and state courts.
The Court of Appeals is an appellate collegiate court in the Philippines. The Court of Appeals consists of 1 Presiding Justice and 68 Associate Justices. Pursuant to the Constitution, the Court of Appeals "reviews not only the decisions and orders of the Regional Trial Courts nationwide but also those of the Court of Tax Appeals, as well as the awards, judgments, final orders or resolutions of, or authorized by twenty-one quasi-judicial agencies exercising quasi-judicial functions mentioned in Rule 43 of the 1997 Rules of Civil Procedure, plus the National Amnesty Commission and the Office of the Ombudsman. Under Republic Act No. 9282, which elevated the Court of Tax Appeals to the same level of the Court of Appeals, en banc decisions of the Court of Tax Appeals are update subject to review by the Supreme Court instead of the Court of Appeals. Added to the formidable list are the decisions and resolutions of the National Labor Relations Commission which are now initially reviewable by the Court of Appeals, instead of a direct recourse to the Supreme Court, via petition for certiorari under Rule 65 ".
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 interpreting law. Although appellate courts have existed for thousands of years, common law countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.
In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review and make changes to the judgment of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of their case may submit a formal petition for review to an appropriate court. In the federal judiciary of the United States, the term "petition for review" is also used to describe petitions that seek review of federal agency orders or actions.
The judiciary of the Philippines consists of the Supreme Court, which is established in the Constitution, and three levels of lower courts, which are established through law by the Congress of the Philippines. The Supreme Court has expansive powers, able to overrule political and administrative decisions, and with the ability to craft rules and law without precedent. It further determines the rules of procedure for lower courts, and its members sit on electoral tribunals.
The writ of mandate is a type of extraordinary writ in the U.S. state of California. In California, certain writs are used by the superior courts, courts of appeal and the Supreme Court to command lower bodies, including both courts and administrative agencies, to do or not to do certain things. A writ of mandate may be granted by a court as an order to an inferior tribunal, corporation, board or person, both public and private. Unlike the federal court system, where interlocutory appeals may be taken on a permissive basis and mandamus are usually used to contest recusal decisions, the writ of mandate in California is not restricted to purely ministerial tasks, but can be used to correct any legal error by the trial court. Nonetheless, ordinary writ relief in the Court of Appeal is rarely granted.
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