Proof of Service of Petition for Certiorari

Filing a petition for writ of certiorari in the Supreme Court is no cakewalk! There are numerous rules and regulations governing certiorari petitions, some very unusual and different from those of regular courts. For instance, the writ petition format Supreme Court is decidedly singular and atypical.

And once a litigant has prepared an appropriate petition for writ of certiorari, he has to file 40 copies of the same with the Clerk of the Supreme Court along with the docket fee of $300. In case the petitioner is proceeding in forma pauperis, the number is trimmed down to an original and 10 copies only.

In either case, the petitioner has to also serve three copies of the papers filed in the Court to all opposing parties or their counsel. And simply serving the petition copies is not enough; an affidavit to this effect has to be duly filed along with the petition for certiorari itself.

This proof of service is formally known as Certificate of Service. It is a mandatory requirement and failing to submit the document is interpreted as noncompliance. Even if a valid service has been done, the Court will not ‘read the petition’ or act on it until the petitioner provides a valid proof thereof.

What is it?
A Certificate of Service is a legal declaration that all opposing parties or their counsel have been served with a copy of the petition papers filed in the Supreme Court. Even cross petitions need to be in the writ petition format Supreme Court and accompanied by an appropriate proof of service.

This affidavit is filed along with the petition, but should be on a separate paper from the rest of the bound document. It should set forth a list of the names, addresses and telephone numbers of the counsel as well as indicate the names of the party (or parties) each counsel represents. It should also have an express statement that all parties required to be served have been served!

The Certificate of Service should be duly signed by a member of the Bar of the U.S. Supreme Court (representing the party on whose behalf service is made or by an attorney appointed to represent that party). If it is executed by a non-bar member, the signature should either be notarized or be accompanied by a declaration in compliance with 28 U.S.C. § 1746. Alternatively, an acknowledgment of service that is signed by counsel of record for the party served will also suffice.
A sample Certificate of Service can look like this:

CERTIFICATE OF SERVICE

I, _______ hereby certify that on _______ I served a copy of the attached _______________________________(name of document) upon the parties listed below by [mailing it by [first class mail][personal delivery](Circle one) to the following addresses:
____________________________
____________________________
____________________________
I declare under penalty of perjury that the foregoing is true and correct. Executed on ________
_______________________
          (Signature)


If you would like to add anything about the Certificate of Service, please mention in the comments section below. For read more

Role of Certificate of Compliance in Certiorari

As any attorney in the land will be ready to vouch, filing a petition for writ of certiorari is a long and arduous process. The Supreme Court sets out very exacting rules and regulations that spell out exactly how the document should be prepared.
For instance, the paper should be white, opaque, unglazed, 6 1/8 by 9 1/4 inches in size and not less than 60 pounds in weight. Nothing but “Century” family 12-point font is permissible. Similarly, there are specific rules for the margin size, cover paper, type of printing, binding style and so on. Even the maximum word count is clearly fixed and remains largely inflexible.
Therefore, any petition of certiorari can only go up to a maximum of 9000 words and never beyond. This includes all footnotes too. However, the following contents of a writ for certiorari are not included in the word limit:


•    The Questions Presented

•    The List of Parties and corporate affiliates of the filing party

•    The Table of Contents

•    The Table of Cited Authorities

•    The listing of counsel at the end of the document.

•    Any Appendix.

•    Verbatim quotations required under Rule 14.1(f) and Rule 24.1(f) if set out in the text rather than in the appendix of the petition.

Simply abiding by the word limit is not enough. The Supreme Court further requires that every petition of certiorari should also be accompanied by a Certificate of Compliance.
The certificate should clearly state the precise number of words in the brief and the fact that it complies with the word limitations. The word count of a word processing system can be relied on in this regard. However, it should be set to include all footnotes.
The certificate should be duly signed by the attorney, the unrepresented party or the preparer of the document. In case it is signed by a person other than a member of the Bar of this Court, the counsel of record or the unrepresented party, it must also contain a notarized affidavit or declaration in compliance with 28 U.S.C. § 1746.
The Certificate of Compliance forms a separate document that is placed after the Certificate of Service and before the Appendix. It should always accompany the petition of writ for certiorari at the time of filing with the Clerk of the Supreme Court.

A sample Certificate of Compliance: 

As required by Supreme Court Rule 33.1(h), I certify that the petition for a writ of certiorari contains _____ words, excluding the parts of the petition that are exempted by Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.
Executed on ___________________

If you would like to add anything to the above details, please mention in the comments section below.

Should You Actually Be Petitioning for Certiorari?

It seems quite simple and straightforward. If a state court or Court of Appeals has not ruled in your favor or you are dissatisfied with the judgment, just approach the highest court in the land – the Supreme Court of USA with a petition for writ of certiorari. The Chief Justices will reopen the case and review the merits before making a revised decision that may even overrule the lower court’s ruling!

However, things are not as cut and dried as this. Many complications enter the picture, such as:

•    To begin with, imagine the workload if the Supreme Court was to grant every one of the more than 7000 petition for writ of certiorari that are filed every term! Certiorari is left to the discretion of the Supreme Court, and only a small percentage of the petitions that are deemed to be of national importance are actually granted certiorari.

•    There are numerous rules and regulations governing the writ petition format specified by the Supreme Court. They cover everything from the format, binding and number of copies to the paper color, size and quality to even the font and margins. The exact papers and covers are currently only available with Supreme Court Paper pan-USA.

•    Akin to the exact writ petition format specified by the Supreme Court, the required contents of the petition are also clearly laid out. This includes the questions presented for review, a list of the parties involved, various citations, provisions and so on. It is required to be brief and accurate and even the number of words/pages allowed is specified.

•    The timelines for filing the petition and successive briefs are also clearly laid out. Failure to comply with any of the above rules can cause your petition to be summarily dismissed for procedural noncompliance!

•    Every duly submitted petition goes into a cert. pool and is assigned to any of the law clerks of the Supreme Court who prepares a brief memorandum of the same. The Supreme Court Justices mull on the worthiness of a petition at their weekly Justices’ Conference before voting on it. The Rule of Four requires at least four of the attending Justices to vote in favor of a petition for it to be granted certiorari.

•    In the rare case that a petition makes the cut and becomes a certiorari writ, the Justices may still summarily affirm or reverse the lower court’s judgment without a formal hearing. Alternatively, they may even remand the case by sending it back to the lower court for review.

•    Only a handful of petitions actually find themselves on the docket and are set for oral arguments by the respective attorneys of both the parties.
Considering the costs and other hurdles involved, litigants would do better to carefully evaluate their chances before applying for a petition for certiorari!

If you wish to add further to the above proceedings, please air your views in the comments section below.

The Role of Amicus Curiae in Certiorari

In the rare case that the Supreme Court decides to grant a petition for certiorari, the petitioners are often zapped by unknown people sending their briefs under the

guise of something called amicus curiae! This legal Latin term can seem puzzling and even foreboding to some, but it simply translates into ‘friend of the court’.

What actually happens?
Once a petition for writ of certiorari is granted, the Supreme Court requires both parties to file legal briefs in favor of and against the motion. While both the

petitioner and respondent are outlining their arguments in briefs, outside parties who are not directly involved in the action are also permitted to file their briefs.

This is known as amicus brief and will support the outsider’s position. In fact, an amicus brief can even be filed at the petition for writ for certiorari stage itself.

An amicus brief can be filed by a person, group or organization -
•    to support an argument previously made by a party involved in the case.
•    to highlight new arguments other relevant matters that have not yet been raised in the case.
•    to support a particular outcome in the case.
•    to explain outside interest or stake in the particular case.
•    to influence the court’s decision in their favor.
•    to demonstrate to the court the social, political, legal or economic consequence of a certain decision.

Just like the writ petition format Supreme Court, the Supreme Court has formal rules in place governing various aspects of the amicus briefs filed by ‘friends of court’.

•    It can only be filed after obtaining written consent of all parties, or by leave of court granted on motion (except when filed by the United States or an officer or agency thereof, or by a State, Territory, Commonwealth, Possession, city, county or town). The brief can also be filed at the express request of the court.

•    The court also conditionally allows filing an amicus brief with the motion for leave (when a party withholds consent).
•    It should be filed within 30 days after the case is placed on the docket or a response is called for by the court, whichever is later. No extensions are allowed.
•    It should be within 15,000 words and should clearly outline suitable arguments or recommendations for the case to be ruled in a certain way.
•    It should have a green cover and should identify the party supported. Else, it should indicate whether it suggests affirmance or reversal.
•    Akin to writ petition format Supreme Court, this brief must also be in booklet format and 40 copies must be served with the court.
•    A 10-day prior notice of the amicus brief should be given to the respondent.
An amicus brief is considered as an advisory and often proves considerably useful to the court. However, the friends of court are not allowed to participate in the oral arguments (unless there are extraordinary reasons).

If you would like to add anything about amicus curiae, please mention in the comments below.

Common Terms Related to Writ of Certiorari

The United States law allows ordinary litigants to approach the Supreme Court for a review of the judicial decisions of other lower courts. However, there is great confusion among the general public regarding the meaning and use of certiorari petitions.

The following post attempts to clarify the significance and implications of these legal terms so that people can use them logically as befitting their particular circumstances.

Petition for writ of certiorari – In case a litigant (losing party) is dissatisfied with the ruling of a state or federal court – it could be a state court of last resort or the United States court of appeals - he can request the Supreme Court to hear the case once again. For this he has to file a petition with the Supreme Court informing it about the facts of the case, history, questions for review and reasons why the ruling is worthy of judicial review. This petition is known as petition for writ of certiorari.

Writ of certiorari – Every person has the right to file a certiorari petition provided he follows the rules prescribed for writ petition format in Supreme Court. However, this right does not in any way indicate that every petition will be granted by the highest judicial authority in the country. In fact, this is both impracticable and unfeasible.

The decision is left to judicial discretion. There are various conditions following which a petition is granted, beginning with following the appropriate writ petition format in Supreme Court. Indeed, the petition has to adhere to the prescribed format, right down to the type and color of paper to be used (supplied only by Supreme Court Paper). There is also a set deadline for filing the petition after the lower court has issued its judgment.

The Supreme Court Justices study and deliberate on the merits of the petition for writ of certiorari before deciding either way. In the rare case that at least four of the Justices decide that the case has compelling reasons and grant the petition, only then is it formally known as a writ of certiorari.

Certiorari – This is a Latin term meaning ‘to be informed’. It is informally referred to as cert. In literal terms, a certiorari writ is intended to direct a lower court to send a record of the case for further review of judicial errors. However, this is no longer necessary as the current rules require the key proceedings be submitted along with the petition itself. The Supreme Court hears most cases through certiorari only.

Cert. Denied – In case the Supreme Court returns the petition as denied, it means that the case is not deemed worthy of a judicial review. Most petitions are denied without comment and the lower court’s decision continues to hold as final without a review. However, this should not be inferred as indicating that the highest court approves the decision of the lower court! Similarly, if certiorari is granted, it does not automatically indicate that the Justices disagree with the lower court.

Feel free to add further to the above certiorari terms by commenting below.

Which Petitions for Writ of Certiorari Are Granted?

I was quite dissatisfied with the decision granted by the US Court of Appeals and my attorney and I decided to go ahead and file a petition for writ for certiorari with the Supreme Court. 

I obtained the specific office supplies like papers and covers for the petition from Supreme Court Paper and my attorney prepared the requisite content for the petition. The required number of petition copies was filed with the Supreme Court, the docket fees paid and we were awaiting the appellate court’s judgment. 

I was quite hoping that the Supreme Court would consent to review the lower court’s judgment once again. However, I was aware that the odds were stacked against me as just a handful of the thousands of petition of certiorari are granted by the Supreme Court. In fact, of the more than 7000 petitions for writ of certiorari that is filed with the Supreme Court every year, only about 100 or so are granted and added to the court’s docket! 

Indeed, while petitioners have a right to request a writ for certiorari, the final decision depends on judicial discretion alone. The reasons should be compelling enough for the Supreme Court to spare its valuable time and review the case once again! 

Following is a look at certain criteria that the court follows when deciding to grant or deny the petition:

•        The case is of gravity and national significance, involving principles of wide public or governmental interest.
•         It raises particularly significant questions of law. 
•         It reveals a division of authority over the legal questions – such as the lower court pronouncing a decision that directly conflicts with the relevant decision of the court of appeals, state court of last resort or the Supreme Court itself (for federal questions or interpretation of constitutional law only). 
•         The lower court has violated the usual course of judicial proceedings. 
•         As a rule, the Supreme Court rarely, if ever, grants a petition solely based on suspected factual errors in the findings of a lower court or the misapplication of a properly stated rule of law.

The above criteria are not a rule and the court may deem to grant cases that do not make this cut. Alternatively, a ‘compelling’ case may still fail to be granted certiorari. 

In sum, the Supreme Court will choose to exercise its appellate power primarily when it is in the public interest to establish a nationally uniform understanding over the legal questions that have been raised by the case in question or could have precedential value. 

Coming back to my case, I do understand what makes a petition of certiorari worthy ofcertiorari and I do not want to unnecessarily burden the highest court of justice or waste its time. However, my fingers are still crossed and I am praying that my case makes the cut!

If you wish to add further to the above criteria for granting a petition for writ of certiorari, please mention in the comments section below.