Georgia Appeals Law Guide / Appellate Law Treatise

Certiorari

Certiorari in Georgia is the procedure by which a higher court, through its own action, reviews a case that has been pending in a lower court. Certiorari differs from other types of appeal in that it is formally the action of the higher court that brings the case up, rather than the action of a party to the case. In practice, most certiorari review (through the issuance of a “writ of certiorari”) results from the filing by the party seeking review of a petition to the higher court. The higher court then decides whether to deny the petition, in which case the appeal likely ends, or grant it, in which case the parties present their arguments on the merits to the higher court. The grant of a petition for a writ of certiorari does not, by itself, disturb the lower court’s decision. In some ways, certiorari is similar to the Georgia statutory procedure of discretionary review, which is discussed in Review & Error > Discretionary Review.

No party has a right to review by certiorari. Rather, certiorari allows higher courts to pick and choose cases they want to hear. Courts historically have chosen for certiorari review cases that are of “public concern,” “great importance,” or “gravity,” and the 1983 Georgia Constitution and the Rules of the Georgia Supreme Court embody these priorities. See Supreme Court Rule 40 (“A petition for the writ [of certiorari] will be granted only in cases of great concern, gravity, or importance to the public.”).

Certiorari From Supreme Court to Court of Appeals

The 1983 Constitution’s grant of certiorari power “places no limit on [the Supreme] Court’s certiorari jurisdiction.” State v. Tyson, 273 Ga. 690, 692 (544 SE2d 444) (2001). The Supreme Court “ha[s] jurisdiction to review any decision of the court of appeals by certiorari so long as the case presents an issue of great concern, gravity, and importance to the public.” Id. Although the provision of certiorari to the Supreme Court does not include the word “jurisdiction,” whereas the provision of certiorari to the Court of Appeals does, see Ga. Const. Art. VI, Sec. V, Para. III, both provisions have been interpreted as jurisdictional. See generally State v. Murray, 286 Ga. 258 (687 SE2d 790) (2009) (Nahmias, J., dissenting).

Furthermore, “[i]t is [the Supreme] Court’s prerogative to prescribe rules regarding certiorari. Indeed, the only rules of procedure for reviewing a decision of the Court of Appeals by the writ of certiorari are Rules 38 through 45 of this Court.” In re Stroh, 272 Ga. 894, 895 (534 SE2d 790) (2000). However, the Supreme Court’s certiorari jurisdiction does not extend to cases pending below the level of the Court of Appeals. See Cook v. Bd. of Registrars of Randolph Cnty., 291 Ga. 67, 74 (727 SE2d 478) (2012) (holding Supreme Court did not have jurisdiction over appeal from superior court, “although if this case is later deemed to be ‘of gravity or great public importance,’ this Court may review it by certiorari after the Court of Appeals decides it in the first instance”).

The vote of at least four justices is required to grant certiorari. Outvoted justices sometimes dissent from an order granting or denying a petition for a writ of certiorari. See, e.g., Wheeler v. Wheeler, 281 Ga. 838 (642 SE2d 103) (2007) (Carley, J., dissenting from denial of certiorari); Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976) (Hall, J., dissenting from grant of certiorari).

Vacation of Certiorari

Sometimes, after granting a writ of certiorari, the Supreme Court determines that certiorari was inappropriate and vacates the writ. See Gibson v. Preferred Risk Mut. Ins. Co., 266 Ga. 368, 368 (467 SE2d 334) (1996) (“After plenary consideration of this matter, it is found not to satisfy the criteria for the grant of certiorari and the writ is therefore vacated.”).

Interaction with Mandamus

One of the many restrictions on obtaining a writ of mandamus is that “[i]f there be a specific remedy by certiorari, the right of mandamus will not lie.” City of Statesboro v. Dickens, 293 Ga. 540 (748 SE2d 397, 400) (2013) (citation and quotation marks omitted).

Next:
Previous: