The last petition for writ of certiorari I wrote was regarding a judge who refused to recuse herself after making biased statements in open court. A petition for writ of certiorari begins an interlocutory appeal. That is, it asks an appellate court to review a judge’s order in the middle of a case. Like other writs, the petition for writ of certiorari is not for the faint of heart. It’s one of a group of legal documents called extraordinary writs, and they are all hard to get.
About Extraordinary Writs
The vast majority of pro se litigants will never need a writ of certiorari, writ of habeas corpus, writ of prohibition, writ of mandamus, or writ of quo warranto. Still, it’s good to know the purpose of these extraordinary writs, just in case we do.
Extraordinary writs serve to prevent or overcome an injustice. They fix problems that cannot be remedied through normal legal procedures. Like me, you can petition an appellate court to issue an extraordinary writ.
Take note though that appellate courts have discretion in granting these writs, and in the vast majority of cases, they choose not to issue them. So think hard about the value you get from filing an extraordinary writ. For me, the value was in strategically extending the length of the case and eventually forcing a settlement.
Writ of Certiorari
In most jurisdictions, the petition for writ of certiorari must show that the court order departed from the essential requirements of the law and that the departure was serious enough to result in a miscarriage of justice. Further, the petitioner will have to prove that such miscarriage cannot be remedied without the involvement of the higher court.
That’s a tall order. If the petitioner can make it over that hurdle, and the court chooses to consider the case, it then issues a writ of certiorari to the lower court directing it to send case materials to the appellate court for review. They will order an opponent to respond to the petition. After that, game on.
Question: Is this petition of value? Is it worth the time, effort, and money spent? Most pro se litigants will probably respond with a no, even with a waiver of court fees. An exception might be litigants in foreclosure cases where the extra time is of high value.
Writ of Habeas Corpus
State and federal courts may produce writs of habeas corpus. Such a writ demands that an official, such as a prison warden, present a prisoner in court and explain the reasons for confinement. If a judge is not satisfied with the explanation, the judge may release the prisoner or alter the terms of confinement.
The writ of habeas corpus works as a civil complaint against a government agent on behalf of a prisoner. People may resort to this process after failing to reverse a criminal conviction on appeal. Many self-representing prisoners petition courts for writs of habeas corpus.
Because appeals courts look at the records of the trial court when making decisions, a writ of habeas corpus may enable a petitioner to expose issues and evidence not presented in court. You might also petition for this type of writ if you believe that you were wrongfully denied release on bail.
Question: Is this petition of value? Is it worth the time, effort, and money spent? Most petitioners will probably respond with a yes. Even the chance of getting your freedom back is of very high value.
Writ of Prohibition
An appellate court sends a writ of prohibition to a lower court when it deems that the lower court is doing something that the law prohibits or is acting beyond its jurisdiction. The writ halts the case so that the higher court may resolve the legal questions involved.
A court reviewing a petition for a writ of prohibition will need to see that the petitioner is currently exposed to the exercise of a judicial power that will cause injury. Next, the petitioner must explain why the law does not authorize this exercise of power and that no alternative ways to fend off the injurious exercise of judicial power exist.
Question: Is this petition of value? Is it worth the time, effort, and money spent? You might want to go for this one if your case is very strong. Otherwise, it’s probably not a good idea.
Writ of Mandamus
A judge who issues a writ of mandamus will order a public official or judge in a lower court to perform a legally required duty or halt unjustified action. A petitioner may seek this discretionary intervention from a higher authority prior to the completion of a case in a trial court. The petition needs to state the pertinent facts, explain the situation that requires relief, and provide reasons for the necessity of the writ.
The writ of mandamus may only apply to a public official, not a private individual. Additionally, the order must concern a duty that is a legal obligation. Although rarely used, these writs have a history of correcting trial judges when they refuse to move a case due to conflict of interest, deny discovery of evidence, ignore a lack of jurisdiction, and more.
Question: Is this petition of value? Is it worth the time, effort, and money spent? It might be worth it to appeal only if your case is very strong, and there are no other alternatives to get justice.
Writ of Quo Warranto
The writ of quo warranto is used to challenge the authority of a public official, a corporate officer, or a licensed professional. The writ requires the person to appear and present evidence validating his or her use of power. Petitions seeking these writs have been used against people holding offices such as county commissioner, school board member, tax commissioner, or even a judge.
The petition will highlight the person’s abuse of power, failure to execute the duties of the office, or absence of credentials. The burden of evidence is on the targeted person to prove authority. Most often, an attorney general or other prosecutor files the petition on behalf of the public. Statutes in your specific jurisdiction might empower you to petition for this writ without a prosecutor’s participation.
Question: Is this petition of value? Is it worth the time, effort, and money spent? It might be worth it to appeal only if your case is very strong.
I challenged the judge’s decision not to recuse herself. I lost. The court denied my petition. But I eventually won. The judge chose to go into retirement. I never saw her again, and I bought the time I needed to develop what turned out to be a winning strategy.
Though extraordinary writs have the potential to provide relief, courts are extremely reluctant to interfere with normal judicial processes through the use of extraordinary writs. So, if you take on this fight and actually want a petition granted, make yours very compelling.
Pssst! Hey, you there, struggling to win your case. Isn’t it time you gave Courtroom5 a spin? Our specialists publish articles like this to help you level the playing field, but it’s sometimes too late to save your case. Stop trying to catch up; instead, get the insight that you need to succeed. Get ahead of the game and start driving your case to the judgment you deserve. See how it works today!