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In
law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
, ''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 The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and cou ...
of a decision of a lower court or
government 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 ...
. ''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 reflected ...
, 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 English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
, ''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
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
s, including
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Engli ...
(now called a "quashing order"),
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world ...
,
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
,
Ireland Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
, the Philippines and the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
. With the expansion of
administrative law Administrative law is the division of law that governs the activities of government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
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 wishto be made certain". ''Certiorari'' is the
present The present (or here'' and ''now) is the time Time is the continued sequence of existence and event (philosophy), events that occurs in an apparently irreversible process, irreversible succession from the past, through the present, into ...
passive
passive
infinitive Infinitive (list of glossing abbreviations, abbreviated ) is a linguistics term for certain verb forms existing in many languages, most often used as non-finite verbs. As with many linguistic concepts, there is not a single definition applicable to ...
of the
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...

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 Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
. 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 Ulpian (; la, Gnaeus Domitius Annius Ulpianus; c. 170223? 228?) was a Roman empire, Roman jurist born in Tyre (Lebanon), Tyre. He was considered one of the great legal authorities of his time and was one of the five jurists upon whom decisions w ...

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 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 omnipres ...
, ''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 The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...

rule of law
remedy:


Australia

In Australia, the power to issue ''certiorari'' is part of the inherent jurisdiction 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 The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

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, 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 The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and cou ...
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 The Constitution of India (International Alphabet of Sanskrit Transliteration, IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of ...

Constitution of India
vests the power to issue ''certiorari'' in the
Supreme Court of India The Supreme Court of India (International Alphabet of Sanskrit Transliteration, IAST: ) is the supreme judicial government of India, authority of India and is the highest court of the Republic of India under the Constitution of India, constitu ...

Supreme Court of India
, for the purpose of enforcing the fundamental rights guaranteed by Part III of the Constitution. The
Parliament of India The Parliament of India (International Alphabet of Sanskrit Transliteration, IAST: ) is the supreme legislative body of the Republic of India. It is a bicameralism, bicameral legislature composed of the president of India and two houses: the R ...
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.


New Zealand

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 The New Zealand Parliament ( mi, Pāremata Aotearoa) is the unicameral legislature of New Zealand, consisting of the Monarchy of New Zealand, King of New Zealand (King-in-Parliament) and the New Zealand House of Representatives. The King is u ...
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, as the procedure to seek judicial review from the
Supreme Court of the Philippines The Supreme Court ( fil, Kataas-taasang Hukuman; colloquially referred to as the ''Korte Suprema'' lso used in formal writing is the highest court in the Philippines. The Supreme Court was established by the Second Philippine Commission on ...

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, chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States ...
James Wilson (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 Federal judiciary of the United States, judicial branch of the Federal government of the United States, U.S. federal government. Under Article Three, the judicial branch consists of t ...
, which describes the judicial branch of the
US federal government The federal government of the United States (U.S. federal government or U.S. government) is the Federation#Federal governments, national government of the United States, a federal republic located primarily in North America, composed of 50 ...
, explains: In the United States, ''certiorari'' is most often seen as the writ that the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...

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 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 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 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 Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
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 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 ...
", 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'', 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.


State courts

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 The Supreme Court of Pennsylvania is the highest court in the Commonwealth (U.S. state), Commonwealth of Pennsylvania's Judiciary of Pennsylvania, Unified Judicial System. It also claims to be the oldest appellate court in the United States, a c ...
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 (polity), 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 ...
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 The Supreme Court of Texas (SCOTX) is the supreme court, court of last resort for civil matters (including juvenile delinquency cases, which are categorized as civil under the Texas Family Code) in the U.S. state of Texas. A different court, the ...
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 The Texas Courts of Appeals are part of the Texas judicial system. In Texas, all cases appealed from district and county courts, criminal and civil, go to one of the fourteen intermediate courts of appeals, with one exception: death penalty cases. ...
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 Pennsylvania (; (Pennsylvania Dutch language, Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a U.S. state, state spanning the Mid-Atlantic (United States), Mid-Atlantic, Northeastern United States, Northeastern, Appa ...
and
New Jersey New Jersey is a U.S. state, state in the Mid-Atlantic States, Mid-Atlantic and Northeastern United States, Northeastern regions of the United States. It is bordered on the north and east by the state of New York (state), New York; on the ea ...
, 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 government agency, executive branch agencies of Forms of government, government. Administrative law concerns executive branch rule making (executive branch rules are gener ...
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 omnipresen ...
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 The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and cou ...
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 - A lawsuit is a proceeding by a party or parties against another in the civil court of law A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between P ...
under the Administrative Procedure Act in a
United States district court The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
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 * Petition for review * '' Subpoena ad testificandum'' * ''
Subpoena duces tecum A ''subpoena duces tecum'' (pronounced in English ), or subpoena for production of evidence, is a summons, court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a Hearing (law) ...
''


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