Writ of Certiorari - History

Writ of Certiorari  - History

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Writ of Certiorari - History

In common law, a writ (Anglo-Saxon gewrit, Latin breve) [1] is a formal written order issued by a body with administrative or judicial jurisdiction in modern usage, this body is generally a court. Warrants, prerogative writs, and subpoenas are common types of writ, but many forms exist and have existed.

In its earliest form, a writ was simply a written order made by the English monarch to a specified person to undertake a specified action for example, in the feudal era a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a certain place and time. [2] An early usage survives in the United Kingdom, Canada, and Australia in a writ of election, which is a written order issued on behalf of the monarch (in Canada, by the Governor General and, in Australia, by the Governor-General for elections for the House of Representatives, or State Governors for state elections) to local officials (High Sheriffs of every county in the historical UK) to hold a general election. Writs were used by the medieval English kings to summon persons to Parliament, [3] (then consisting primarily of the House of Lords) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "barons by writ.

Marbury v. Madison (1803)

The Supreme Court case that established the power of judicial review. (Read the opinion here).

During President John Adams’ lame duck session of his presidency, he appointed Marbury as a justice of the peace and signed the commission. Soon thereafter, Thomas Jefferson became President of the United States and refused to allow Secretary of State James Madison to deliver the commission to Marbury. Marbury sued Madison in the Supreme Court to get his commission via a writ of mandamus.

Under Justice John Marshall, the Court specifically held that the provision in the 1789 Act that granted the Supreme Court the power to issue a writ of mandamus was unconstitutional. On a broader scale, this case established that the Supreme Court had the authority, under the Supremacy Clause and Article III, § 2 of the Constitution, to review legislative or executive acts and find them unconstitutional. The Court also delineated the limits of the Supreme Court’s original jurisdiction, namely, political questions (which are not reviewable by the federal courts) and the limitations set forth by Article III of the Constitution. While Marbury v. Madison established that federal courts have limited jurisdiction, it also cemented the Court’s status as the ultimate interpreter of the Constitution.

Law Clerks

Each Justice is permitted to have between three and four law clerks per Court term. These are individuals who, fairly recently, graduated from law school, typically, at the top of their class from the best schools. Often, they have served a year or more as a law clerk for a federal judge. Among other things, they do legal research that assists Justices in deciding what cases to accept help to prepare questions that the Justice may ask during oral arguments and assist with the drafting of opinions.

While it is the prerogative of every Justice to read each petition for certiorari himself/herself, many participate in what is informally known as the "cert pool." As petitions for certiorari come in on a weekly basis, they are divided among the participating Justices. The participating Justices divide their petitions among their law clerks. The law clerks, in turn, read the petitions assigned to them, write a brief memorandum about the case, and make a recommendation as to whether the case should be accepted or not. The Justice provides these memoranda and recommendations to the other Justices at a Justices' Conference.

Prologue: Why LGBTQ Historic Sites Matter

Dr. Franklin E. Kameny at the door to his Washington, DC, home and office, 2007.

Photo by and courtesy of Patsy Lynch, 2007.

Start here. We exist.

We, lesbian, gay, bisexual, transgender, queer people (LGBTQ), all the subdivisions of the sexual and gender minority community, exist in America. The places we remember and hold dear, those places that have become part of our identity, also exist. Still. Many of them.

In the 1960s no lesbian, gay man, bisexual, transgender person, or queer gave a thought to their sites and actions being historic. They were struggling for their basic rights, explicitly denied them by their government and the larger society around them. As Dr. Franklin E. Kameny, often called the “father” of LGBTQ civil rights, asserted with some asperity in his 1960 petition for a writ of certiorari to the Supreme Court “Probably [homosexuals] most dominant characteristic is their utter heterogeneity. Despite [the] common popular stereotype of a homosexual which would have him discernible at once by appearance, mannerisms and other characteristics, these people run the gamut of physical type, of intellectual ability and inclination and of emotional make-up … ”[1].

In making his case for tolerance and an end to restrictions on homosexuals’ rights, Kameny was in this instance most focused on discrimination in employment, though in addressing his own particular case, he noted that those rights were the equal of every American’s rights and should not be legally, logically, constitutionally, or on any other basis diminished. The depth of Kameny’s asperity was plumbed in his outraged summary of the government’s case for oppressing homosexuals’ employment in a resonant indictment of federal oppression:

“Respondents’ [US Civil Service Commission, Army Mapping Service, the US Army] case is rotten to the core. Respondents’ case had been shown to fail factually and to be defective procedurally the regulations upon which they base their case have been shown to be legally faulty, invalid, and unconstitutional their policies have been shown to be improperly discriminatory, irrational and unreasonable, inconsistent and against the general welfare, and unconstitutional. …

The government’s regulations, policies, practices and procedures, as applied in the instant case to petitioner specifically, and as applied to homosexuals generally, are a stench in the nostrils of decent people, an offense against morality, an abandonment of reason, an affront to human dignity, an improper restraint upon proper freedom and liberty, a disgrace to any civilized society, and a violation of all that this nation stands for. These policies, practices, procedures, and regulation have gone too long unquestioned, and too long unexamined by the courts.”[2] Read more » [PDF 2.0 MB]

[1] Franklin Edward Kameny v. Wilber M. Brucker, Secretary of the Army et al., Petition for a Writ of Certiorari, no. 676, US Supreme Court, 1960, 36. Kameny’s writ was intended to win him a Supreme Court review of his appeal against dismissal from the Army Mapping Service on grounds of homosexuality in 1957. It did not. However, in articulating his arguments against US government repression of homosexuals and its ban on employment of homosexuals, Kameny set forth clearly many of the arguments and goals that would characterize his activism over the next fifty-one years. The Dr. Franklin E. Kameny Residence is located in the northwestern quadrant of Washington, DC. It was listed on the NRHP on November 2, 2011.

D) Certiorari:-

The expression &ldquo certiorari&rdquo is a Latin word which means &ldquo to certify&rdquo. This writ confers power on the Supreme Court and High Courts to correct illegality of their decisions. &lsquoCertiorari&rsquo is a judicial order issued by the Supreme Court under Article 32 and/or by the High Court under Article 226 of the Constitution to an inferior Court or quasi-judicial or any administrative body to transmit to the Court of records of proceedings pending therein for scrutiny and decide the legality and validity of the orders passed by them. If the decision is bad in law, it is quashed.

The conditions necessary for the issue of the writ of certiorari are:-
(i) Any body of persons
(ii) Having legal authority
(iii) To determine questions affecting the rights of subjects
(iv) Having the duty to act judicially
(v) Act in excess of legal authority

The grounds on which the writ of certiorari may be issued are:
(a) Error of Jurisdiction
(i) Lack of jurisdiction
(ii) Excess of jurisdiction
(b) Abuse of jurisdiction
(d) Error of law apparent on the face of the record
(e) Violation of principles of natural justice

The purpose of the writ of certiorari is not only negative in the sense that it is used to quash an action but it contains affirmative action as well. It is preventive as well as curative in nature. The power of judicial review is not restricted where glaring injustice demands affirmative action.

Case study:- In A.K. Kripak Vs Union of India, AIR 1970 SC 150, the Supreme Court issued the writ of certiorari to quash the selection list of the Indian Forest Service on the ground that one of the selected candidates was the ex-officio member of the selection committee.

E) Writ of Quo Warranto:- The Writ of &lsquoQuo Warranto&rsquo questions the title as to the holder of an office. The term &lsquoQuo Warranto&rsquo means &lsquowhat is your authority &lsquo It is a judicial order asking a person, who occupies public office, to show by what authority s/he holds the office. If it is found that the holder of the office has no valid title, then this writ is issued to him to oust from the office.

Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review the actions of the administrative authority which appointed the person. The writ is issued to the person ousting him from holding a public post to which he has no right. It is used to try the civil right to a public post. Accordingly, the use of the writ is made in cases of usurpation of a public office and removal of such usurper. Conversely, it protects citizen from being deprived of public office to which he may have a right. A petition for the writ of Quo Warranto can be filed by any person though he is not an aggrieved person.

Florida Appellate Law Blog

The appellate blog analyzes and discusses recent cases, news and trends of interest to appellate practitioners and trial lawyers litigating cases likely to result in appeals.


The District Courts of Appeal are vested with discretionary jurisdiction to review non-final orders of lower tribunals not subject to review under Rule 9.130. The DCAs also have discretionary jurisdiction to review final orders of Circuit Courts acting in their appellate capacity (“second-tier” certiorari). Second-tier certiorari will be treated in a later post in this series.

Parallel to the DCAs, Circuit Courts have discretionary jurisdiction to review non-final orders of lower tribunals that are not subject to review under Rule 9.130. Circuit courts also have jurisdiction to review quasi-judicial orders of local government bodies not subject to the Administrative Procedure Act when no other method of review is available such review is a matter of right, not discretion. For a general discussion of the history and scope of this type of review, see Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).

Where review is sought of a non-final order not otherwise subject to review under Rule 9.130, jurisdiction is discretionary and the petitioner must show that (1) the trial court’s order was a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on a final appeal. Williams v. Oken, 62 So. 3d 1129 (Fla. 2011). Because of the limited and extraordinary nature of certiorari, the last two elements are jurisdictional and must be analyzed before the court can exercise jurisdiction to consider the first element. See id. at 1132 (citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995). A different and broader standard of review applies to petitions directed to Circuit Courts for review of quasi-judicial orders of local governmental bodies. In these cases—where review is not discretionary but is a matter of right—the inquiry is whether procedural due process requirements were met, whether the essential requirements of law were observed, and whether the order is supported by competent, substantial evidence.


To institute certiorari review, a party must file a petition directly with the reviewing court, not with the lower tribunal as would be done with a direct appeal. Rule 9.100 spells out filing and related procedural requirements for all original proceedings. A petition for certiorari—which is similar to a brief in terms of content requirements—must be filed within 30 days of rendition of the order to be reviewed. In practical terms, this means that if you are planning to file a petition for certiorari, don’t wait until the 29th day to prepare it because unlike a conventional interlocutory (9.130) or final appeal, you don’t file a notice and then brief the argument later. And since motions for rehearing are not “authorized” as to non-final orders, filing a motion for rehearing will not toll rendition—which is to say that if you want to seek certiorari review of a non-final order, file your petition within thirty days failure to do so guarantees that the reviewing court will not exercise jurisdiction.

Rule 9.100(g) generally details the content requirements for all petitions in original proceedings, including certiorari Rule 9.100(f) contains additional requirements applicable to review proceedings in Circuit Courts. The filing of the petition itself, whether in the DCA or Circuit Court, does not operate to stay the underlying proceeding or enforcement of the order sought to be reviewed. Accordingly, if appropriate, a separate motion for stay should be filed in accordance with Rule 9.310.

If the petition demonstrates that the lower tribunal‘s departure from the essential requirements of law will cause material injury which cannot be remedied on final appeal, the reviewing court may issue an order directing the respondent to show cause why relief should not be granted or otherwise require the respondent to file a response to the petition within a designated time. The response must be 50 pages or less and should include appropriate citations to the petitioner’s appendix or a separate appendix submitted by the respondent. The petitioner is entitled to a reply of 15 pages or less that must be filed within 20 days following service of the response. In the event the reviewing court finds in favor of the petitioner, the relief provided is the quashing of the lower court’s order. The reviewing court has no authority to direct the lower court as to the terms of any subsequent order.


Certiorari relief is appropriate for “cat out of the bag” discovery rulings or decisions evidencing a trial court’s departure from essential procedural requirements set by law. A trio of recent cases provide helpful examples of when certiorari can be effectively utilized. In Tyco Products, L.P. v. 2711 Hollywood Beach Condominium Association, Inc., 207 So. 3d 299 (Fla. 3d DCA 2016), a defendant was ordered to produce documents alleged to be privileged attorney-client communications and protected work product. The Third DCA quashed the order, explaining that certiorari is the appropriate method to obtain relief from such orders. In Kidd v. Kidd, 219 So. 3d 1021 (Fla. 5th DCA 2017), the Fifth DCA granted certiorari and quashed a trial court’s order disqualifying a wife’s attorney from representing her in a family law proceeding. The Court granted such relief upon determining that the trial court had departed from the essential requirements of the law by failing to apply the appropriate Rule of Professional Conduct to the motion to disqualify filed by the former husband/respondent. In Bistline v. Rogers, 215 So. 3d 607 (Fla. 4th DCA 2017), the Fourth DCA reviewed a petition for certiorari directed to an order granting a plaintiff’s motion to amend his complaint to assert a claim for punitive damages. The Court granted certiorari and quashed the order based on the trial court’s failure to comply with the procedural requirements for seeking punitive damages as set forth in section 768.72, Florida Statutes.

By contrast, certiorari is not available to prevent discovery that is simply overbroad, but not otherwise protected by a legal privilege. As the Florida Supreme Court explained in Board of Trustees of Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So. 3d 450 (Fla. 2012), “overbreadth is not a proper basis for certiorari review of discovery orders.” Nor is certiorari appropriate where the petition does not establish that any harm resulting from the claimed erroneous order cannot be corrected on final review, as the First DCA recently explained in Landmark at Crescent Ridge LP v. Everest Financial, Inc., 219 So. 3d 218 (Fla. 1st DCA 2017) (dismissing petition for certiorari and holding denial of motion to dissolve lis pendens did not cause irreparable harm that could not be remedied on final appeal noting requirement that petition for certiorari must “clearly reflect how the potential harm is incurable by a final appeal”).

The bottom line when evaluating whether to seek certiorari of a seemingly erroneous non-final order is that while issuance of the writ is discretionary, the basis for jurisdiction is narrow and the standards of review are strict. That said, practitioners shouldn’t shy away from utilizing this effective procedural tool if the facts and circumstances of your client’s case appear to meet the applicable criteria.

The Writ of Certiorari

There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications. In this article, we shall discuss the writ of certiorari.

Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.

In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.

Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority. These writs are designed to prevent the excess of power by public authorities and as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights. A writ of certiorari is corrective in nature.

The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:

  • When there is an error of jurisdiction.
  • When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
  • This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.If the error is evident.

Necessary Conditions for the issue of a writ of certiorari.

  • There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially.
  • Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
  • The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
  • A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Case Laws for Writ of Certiorari:

In R. V. Northumberland Tribunal(1952) 1 M I E.R.122(128) C.A. case, The Court opined that ‘Certiorari’ comes from ‘certify’ (to inform). It was the writ by which” the king commanded the judges of any inferior court of record to certify the record of any matter in that court with all things touching the same and to send it to the kings court to be examined.

In the Province of Bombay v. Khushaldas, A.I.R. 1950 S.C. 22 case, the Court speaking on the scope of the writ held that whenever any body of persons, having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of their legal authority, a writ of certiorari lies. It does not lie to remove merely ministerial acts or to remove or cancel executive administrative acts. For this purpose the term “judicial” does not necessarily mean act of a judge or a legal tribunal sitting for determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances imposing liability affecting the right of others.

It is a basic principle of administrative law that no body can act beyond its powers. This lies at the basis of judicial review on the ground of lack of jurisdiction. In Ebrahim Aboobaker v. Custodian General, A.I.R.1952 S.C.319 the Court held that no authority can exceed the power given to it, and any action taken by it in excess of its power is invalid.

In State of U.P. V. Mohd. Nooh, A.I.R.1958 S.C.86 explaining the scope of the writ, the Court opined that the writ of certiorari is issued to a body performing judicial or quasi-judicial functions for correcting errors of jurisdiction as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.

In A.P.S.R.T Corpn. v. Satya Narayan Transports, A.I.R.1965 S.C.1303 case, the Court held that a writ of ‘ critiorari also lies against a court or tribunal when it acts in violation of the principles of natural justice are generally accepted are the court or tribunal should be free from bias and interest and audi alteram Partem, i.e. the parties must be heard before the decision is given. The principle that the adjudicator should not have an interest or bias in the case is that no man shall be a judge in his own cause, justice should not be done but manifestly and undoubtedly seen to be done. The reason for this rule is to enable the tribunal to act independently and 2 impartially wxthout any bias towards one side or the other.

In Syed Yakoob v. Radhakrishnan A.I.R.1964 S.C. 477 the Court opined that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact, howsoever grave it may appear to be.

In A. Ranga Reddy v. General Manager Co-op. Electric Supply Society Ltd., A.I.R.1977 N.O.C. 232 (Andhra Pradesh) case, the Court held that the writ of certiorari cannot be issued against a private body. Co-operative Electricity Supply Society Limited incorporated under the Co-operative Societies Act, is a private body and not a public body discharging public function and the writ petition is, therefore, not maintainable against such a private society.

In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.

Writ of Certiorari: New take on one of the Oldest Devices of the Law

Certiorari. A word that seems as at home in the middle of a tongue twister of rolled Rs as in an officious direction by a Constitutional Court. The prerogative writ of Certiorari derives its name from the practice where a sovereign, upon hearing a complaint from a subject that injustice had been done, would say he “wished to be certified certiorari-of the matter, and direct the records in the matter to be transmitted to the Court in which he was sitting”.[1]

The writ of Certiorari, in the judicial sense, has been in common use for nearly 800 years now. Despite such antiquity, it has not diminished in utility or ubiquity. Certiorari in India has acquired its own shape, the contours of which the Supreme Court had occasion to delineate recently in General Manager, Rengali Hydro Electric Project v. Sri Giridhari Sahu .[2]

Early decisions of the Supreme Court of India

The Supreme Court of India, in its early years, considered the application of the Writ of Certiorari in the Indian context in Basappa v. Nagappa [3]. The Court in Basappa took care to iterate multiple times that the writ of Certiorari is not another mechanism of appeal and that the superior court does not review or reweigh the evidence on the basis of which the decision of the inferior tribunal purports to be based. Further, the court held that the writ of Certiorari demolishes the erroneous order but does not substitute it with its own views. But what a court exercising its power to issue writ of Certiorari does check is the jurisdiction of the tribunal below and the qualifications and conditions of its exercise and the observance of law in the course of exercising such jurisdiction.

Examination of facts by the Writ Court

In the Basappa formulation of limitations and scope of the writ of Certiorari there are some special circumstances where a Superior Court can go into a question of fact (1) when the jurisdiction of the lower tribunal depends upon the finding on the question of fact and (2) when the decision is unsupported by material evidence.

In the UK, according to De Smith’s Judicial Review , the power seems to have evolved to permit review of fact even in cases of “misdirection, disregard or mistake of material fact”.[4] But as the Supreme Court noted in Radhey Shyam v. Chhabi Nath [5]on a connected but slightly different issue, the change of law in England would not dilute the binding precedent of our own Constitutional Courts. Indeed, an early Constitution Bench of the Supreme Court of India in Hari Vishnu Kamath v. Ahmad Ishaque[6] has taken the opposite shine on this question and held that the Court will not review findings of fact reached by the inferior court or tribunal even if they are erroneous.

Rengali Hydro Electric Project v. Giridhari Sahu

The Supreme Court had occasion to tread this fine line once again in Rengali Hydro Electric Project v. Sri Giridhari Sahu decided on 12 th September. Whether the writ court delves into facts or not, for the purposes of this article we may briefly glance at them to understand the circumstances in which the Court propounded on the law.

The matter arose out of a dispute that turned upon these questions. Non-muster roll workers of the Rengali Hydro Electric Project (RHEP) had approached the High Court seeking regularization which was allowed. RHEP challenged the High Court order before the Supreme Court. It is the claim of the workers that, RHEP, in the pendency of the appeal, got the workers to sign some papers by telling them they were for regularization, but the papers turned out to be a Voluntary Separation Scheme. The laborers, upon coming to know they had been deceived, approached the Labour Court under Section 33A of the Industrial Disputes Act seeking to avail protection from the alteration of conditions of service during the pendency of an industrial dispute as provided under Section 33 of the Industrial Disputes Act. The Labour Court considered oral and documentary evidence and passed an award in favour of the workers. RHEP challenged this before the High Court by way of a petition seeking the Writ of Certiorari. The High Court took note of the pendency of the industrial dispute and that the award of the Labour Court was passed after detailed appreciation of evidence and not finding any jurisdictional error or error apparent on the face of it, dismissed the petition of RHEP.

The Supreme Court in Rengali relied upon the decisions referred above, except Radhey Shyam, and also on its earlier decision in Management of Madurantakam Sugar Mills Ltd. v. S. Vishwanathan [7] which expands the scope by holding that if a fact is perverse or not based on legal evidence, a High Court exercising power under Article 226 or 227 can go into the question of fact decided by the Labour Court or tribunal. The Court held that when a collateral fact is also a jurisdictional fact, the finding of the tribunal on such fact is not immune from review under the writ of Certiorari. But on the question of examining a finding unwarranted by the evidence, the Court held it to be the same as a finding unsupported by evidence and took the support of the decision in Hari Vishnu Kamath cited above, though a plain reading of Hari Vishnu Kamath would indicate otherwise. Having thus found that the superior court exercising its power to issue the writ of Certiorari can also go into facts, the Supreme Court considered the evidence in some detail and held that the finding of the Labour tribunal that the workers had been deceived was not supported by evidence.

This judgment tilts the balance in favour of greater scrutiny of facts by a court exercising the power of issuing the writ of Certiorari and will certainly have the effect of expanding the scope of the Writ of Certiorari. Indeed the act of calling for records, which has been the hallmark of the writ of Certiorari as reflected in its etymology, acquires greater meaning with the expansion in the scope of examination of facts. The present author would, however, stop short of saying that this tends towards the UK standard described above as it has evolved in very different circumstances.

It remains to be seen how a greater appreciation of facts will affect that curious hybrid which has been engendered in the rarefied halls of the Madras High Court – Writ of Certiorarified Mandamus.

[1] R. v Titchmarsh (1915) 22 D.L.R. 272 as cited in Woolf, H. et. al. (2013) De Smith’s Judicial Review, 7 th Edn., Sweet and Maxwell.

[2] Civil Appeal No. 8071 of 2010, decided on 12.09.2019.

[4] Woolf, H. et. al. (2013) De Smith’s Judicial Review, 7 th Edn., Sweet and Maxwell.

Brief for the United States on Petition for a Writ of Certiorari

The petition for a writ of certiorari before judgment presents the same issues that Microsoft Corporation has presented in its jurisdictional statement (No. 00-139):

1. Whether the district court erred in holding that Microsoft violated Section 2 of the Sherman Act, 15 U.S.C. 2, by engaging in a course of exclusionary conduct to protect and maintain its personal computer (PC) operating system monopoly.

2. Whether the district court erred in holding that Microsoft violated Section 2 of the Sherman Act, 15 U.S.C. 2, by attempting to monopolize the market for Web browsers.

3. Whether the district court erred in holding that Microsoft violated Section 1 of the Sherman Act, 15 U.S.C. 1, by tying its Internet Explorer Web browser to its Windows operating system through contracts and technological artifices.

4. Whether any of the district court's procedural and evidentiary rulings constituted an abuse of discretion requiring reversal of the judgment.

5. Whether the district court abused its discretion by ordering structural separation of Microsoft into two entities and transitional restrictions on its conduct.

6. Whether the district court erred in dismissing Microsoft's counterclaim under 42 U.S.C. 1983, alleging that state attorneys general, under color of state law, sought relief in this case that would deprive Microsoft of its rights under federal copyright law.

7. Whether the district judge's extrajudicial com ments about the case require reversal of the judgment.

Brown v. Board of Educ., 344 U.S. 1(1952)

Clinton v. City of New York, 524 U.S. 417 (1998)

McCulloch v. Sociedad National de Marineros de Honduras, 372 U.S. 10 (1963)

National Org. for Women, Inc. v. Idaho, 455 U.S. 918 (1982)

Reid v. Covert, 354 U.S. 1(1957)

Taylor v. McElroy, 360 U.S. 709 (1959)

UnitedStates v. AT&T Co., 714F.2d 178 (B.C. Cir. 1983)

UnitedStates v. Bankers Trust Co., 294U.S. 240 (1935)

UnitedStates v. Nixon, 418U.S. 683 (1974)

UnitedStates v. United Mine Workers, 330 U.S. 258 (1947)

Expediting Act of 1903, ch. 544, 32 Stat. 823 (15 U.S.C. 29(b))

Sherman Act, 15 U.S.C. letseq.:
§ 1,15 U.S.C. 1 (1994 & Supp. IV 1998)
§ 2,15 U.S.C. 2

Sup. Ct. R.:
Rule 11
Rule 18.2

Robert L. Stern et al., Supreme Court Practice (7th ed 1993)

In the Supreme Court of the United States

State of New York ex rel.
Attorney General Eliot Spitzer, et al.,

Microsoft Corporation, et al.



The findings of fact of the district court are reported at 84 F. Supp. 2d 9 (J.S. App. 46-246). 1 The conclusions of law of the district court are reported at 87 F. Supp. 2d 30 (J.S. App. 1-43). The final judgment of the district court is reported at 97 F. Supp. 2d 59 (J.S. App. 253-279). The order of the district court certifying the case under the Expediting Act (J.S. App. 284-285) is not yet reported.


The judgment of the district court was entered on June 7, 2000. A notice of appeal was filed on June 13, 2000, and the case was docketed in the court of appeals on that date (D.C. Cir., No. 00-5213). Petitioners filed a petition for writ of certiorari before judgment on August 16, 2000. 28U.S.C. 2101(e). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

The United States filed a civil complaint in the United States District Court for the District of Columbia alleging that Microsoft Corporation has engaged in an anticompetitive course of conduct in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1, 2. At Microsoft's request, the district court consolidated the case "for all purposes" with a similar case brought by 20 States and the District of Columbia. See Nos. 98-1232 & 98-1233 Order (May 22, 1998). Following a 78-day trial, the court entered a single set of findings of fact (J.S. App. 46-246) and conclusions of law (id. at 1-43), in which the court held that Microsoft had violated Sections 1 and 2 of the Sherman Act and comparable state antitrust statutes. The court entered a single final judgment, requiring Microsoft to submit a plan to reorganize itself into two separate corporate entities and to comply with transitional injunctive provisions. Id. at 253-279 see Brief for the United States in Response to the Jurisdictional Statement 1-12 (00-139 U.S. Br.).

Microsoft filed two notices of appeal, one pertaining to the United States' action and one pertaining to the States'action. J.S. App. 280-283. On joint motion of the United States and the State plaintiffs, the district court certified, pursuant to the Expediting Act of 1903, as amended, 15 U.S.C. 29(b), "that immediate consideration by the Supreme Court of the appeal taken herein is of general public importance in the administration of justice." J.S. App. 284. At Microsoft's request, the district court stayed the judgment pending appeal. Id. at 285. Microsoft has filed a single jurisdictional statement identifying both the United States and the States as appellees. 2

Microsoft is opposed to expedition of its appeal. Among its objections, Microsoft argues that, even though the district court consolidated the federal and state actions and entered a single judgment, the Expediting Act authorizes the Court to accept jurisdiction over the appeal only insofar as it challenges the judgment on the United States' action. Microsoft contends that the States, consequently, are not entitled to participate as appellees in this Court. J.S. 27. The United States and the States disagree. See 00-139 U.S. Br. 29 n.30 00-139 States' Response to Microsoft's Jurisdictional Statement 5-12 (00-139 States' Response). But as a precautionary measure, the States have also filed a petition for writ of certiorari before judgment, which is the subject of this brief. The States urge that, if this Court concludes that the Expediting Act does not authorize the Court to accept jurisdiction over Microsoft's appeal insofar as it challenges the judgment on the States' action, the Court should allow the States to participate in the proceedings in this Court by granting the petition and consolidating the case on writ of certiorari with the case on appeal.

1. The United States submits that Microsoft's appeal from the district court judgment, which grants the United States equitable relief under the Sherman Act, 15 U.S.C. 1, 2, presents a matter of "general public importance in the administration of justice" within the meaning of the Expediting Act, 15 U.S.C. 29(b). This Court should therefore note probable jurisdiction and undertake direct review of that judgment. See 00-139 U.S. Br. 13-30. If the Court does so, the Court should allow the States to participate as appellees. The dis trict court consolidated the United States' antitrust action with the States' antitrust action, and the court conducted a single trial and entered a single judgment that granted the States identical equitable relief under the Sherman Act and analogous state antitrust laws. In the circumstances presented here, the States were "parties to the proceeding in the district court." Sup. Ct. R. 18.2. They are therefore entitled to participate in the proceedings before this Court and to defend the district court's judgment. Cf. United States v. AT&T Co., 714 F.2d 178, 182 (B.C. Cir. 1983) ("upon certific- tion all parties, including intervenors, must pursue all matters on appeal to the Supreme Court").

2. If the Court agrees that the appeal meets the Expediting Act's criterion, but concludes that the Ex pediting Act does not permit the States to participate as appellees, the Court should review the judgment rendered on the States' complaint simultaneously through the mechanism of a writ of certiorari before judgment in the court of appeals. See 28 U.S.C. 1254(1), 2101(e). This Court's rules provide that certiorari before judgment is available "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." Sup. Ct. R. 11. That standard is satisfied here. 3

As we have explained in our response to Microsoft's jurisdictional statement, Microsoft's appeal from the district court judgment presents a matter of general public importance in the administration of justice that warrants direct review by this Court. See 00-139 U.S. Br. 13-18. That judgment embraces both the United States' action and the States' action, which were consolidated precisely because they raise similar claims and present essentially identical issues. Given the close relationship between the United States' action and the States' action, the Court is justified in departing from "normal appellate practice" and granting the writ to ensure that the United States' action and the States' action remain consolidated for purposes of appeal.

The Court has granted certiorari before judgment "not only in cases of great public emergency but also in situations where similar or identical issues of importance are already pending before the Court and where it is considered desirable to review simultaneously the questions posed in the case still pending in the court of appeals." Robert L. Stern et al., Supreme Court Practice 42 (7th ed. 1993). Indeed, the Court has done so a number of times. See, e.g., National Org. for Women, Inc. v. Idaho, 455 U.S. 918 (1982) McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 12 n.l (1963) Taylor v. McElroy, 360 U.S. 709, 710 (1959) Reid v. Covert, 354 U.S. 1, 4-5 (1957) Brown v. Board ofEduc., 344 U.S. 1, 3 (1952) see also Roe v. Wade, 410 U.S. 113, 123 (1973) (noting that a petition for certiorari before judgment would have been "preferable" to obtain review of issues relating to declaratory relief that were "necessarily identical" to issues raised on appeal of injunctive relief).

Certiorari before judgment would be particularly appropriate here in light of the fact that the United States' action and the States' action were consolidated below and resulted in a single final judgment that awarded the United States and the States the same injunctive relief. Because the issues on appeal are essentially identical, this Court's decision would necessarily control the outcome of any proceedings in the court of appeals and, as a practical matter, constrain the court of appeals from taking any independent action. See Clinton v. City of New York, 524 U.S. 417, 455 (1998) (Scalia, J., concurring in part and dissenting in part) (certiorari before judgment would be appropriate "[i]n light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals").

The States have been significant participants in the proceedings below and have an important perspective on the issues. By granting the States' petition and consolidating the case on certiorari with the case on appeal, the Court would ensure that it has the benefit of the views of all of the parties that participated in the district court proceedings. 4

If the Court notes probable jurisdiction under the Expediting Act in No. 00-139, but concludes that the States are not properly appellees in that case, the Court should grant the petition for certiorari before judgment.

Joel I. Klein
Assistant Attorney General

Lawrence G. Wallace
Deputy Solicitor General

A. Douglas Melamed
Deputy Assistant Attorney

Jeffrey P. Minear
Assistant to the Solicitor

Catherine G. O'sullivan

1 "J.S. App." refers to the appendix to the jurisdictional statement filed in No. 00-139. See Pet. 1 n.l.

2 The court of appeals suspended proceedings on Microsoft's appeal pending this Court's action on the jurisdictional statement. See Nos. 00-5212 & 00-5213 Orders (June 19, 2000).

3 The Court's power to grant certiorari before judgment extends to petitions filed by the party that prevailed in the district court. See, e.g., United States v. Nixon, 418 U.S. 683, 688-687, 690 (1974) United States v. United Mine Workers, 330 U.S. 258, 269 (1947) United States v. Bankers Trust Co., 294 U.S. 240, 294-295 (1935).

4 Of course, the States should remain aligned with appellee United States for purposes of the submission of briefs on the merits on Microsoft's appeal from the district court's judgment.

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