What is “Certiorari”?

Because I blog about New Mexico appellate law, one of the terms you will see frequently on my site is “certiorari.”  Lawyers are notorious for bad writing, and our use of latin terms where English would do does nothing to help our image.  Asking for certiorari means asking a court to hear your appeal, and a court that grants certiorari agrees to hear an appeal.

According to Black’s Law Dictionary, “certiorari” means “an extraordinary writ by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review.”  When a party wants to take an appeal, but appeal is not available as a matter of right, it asks the appellate court for review by filing a petition for writ of certiorari. If the court agrees to hear the appeal, it grants the petition.  Lawyers refer to this as “granting certiorari” or “granting cert.”

Article VI, Section 2 of the New Mexico Constitution provides an absolute right to one appeal.  This is also known as an appeal “as a matter of right.”  Depending on the type of case, more than one level of appeal may be available.  Whether to hear an additional appeal is often within the discretion of the appellate court.  So, for example, if you lose a civil case in district court, the court of appeals must hear your case, and you simply file a notice of appeal.  But if you lose again at the court of appeals, you are not entitled to have your appeal heard by the supreme court. Instead, you must petition the Court for certiorari.

The United States Supreme Court works on a similar system. The Court receives about 10,000 petitions for certiorari per year.  However, it grants certiorari in less than 1% of those cases.  The percentages are much higher (although still not high) at the New Mexico Supreme Court, which historically has granted more than 10% of the petitions for certiorari filed.

Those are the general rules.  But in some cases, you may have to file a petition of certiorari with the court of appeals. It is also possible to have an appeal as a matter of right to the supreme court.  If you need help, you should contact a New Mexico appellate attorney.