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Filing a Petition for Writ of Certiorari with the Colorado Supreme Court

In the state of Colorado, the Colorado Supreme Court functions as the court of last resort and as the highest appellate level court in the Colorado state court system. Although the Colorado Supreme Court is the highest appellate court, it has discretionary jurisdiction over appeals from lower courts meaning that the Colorado Supreme Court has the ability to select which appeals to review and issue a ruling on.

Accordingly, because the Colorado Supreme Court has discretionary jurisdiction, the first step in appealing to the court is filing a petition for writ of certiorari explaining the reasons why the court should accept your appeal. Only if a writ of certiorari is granted will the Colorado Supreme Court review your case and, thus, submitting a persuasive and well thought out petition for writ of certiorari is an important step in seeking certiorari review. This article discusses the general process and procedures for filing a petition for writ of certiorari.

 

Statistics for Petitions for Writs of Certiorari

As an initial matter, the Colorado Supreme Court will only accept certiorari review for around 100 cases per year. Notably, over 1,000 petitions for writ of certiorari get filed each year. Accordingly, the Colorado Supreme Court accepts certiorari review in less than 10% of cases.

From a timing perspective and for cases where certiorari review is actually granted, the total time to decision – that is, the length of time between filing a petition for writ of certiorari and actually receiving a written opinion on the merits of the case – typically takes between one and two years from. In particular, as of 2016 civil cases averaged around 410 days from docketing to opinion and criminal cases averaged around 650 days from docketing to opinion.

Additionally, cases that went to oral argument had longer timelines to decision than the overall average for Colorado Supreme Court cases. More specifically, civil cases with oral argument averaged around 640 days from docketing to decision and criminal cases with oral argument averaged 854 days from docketing to decision.

Notably, simply receiving a decision from the Colorado Supreme Court on a petition for writ of certiorari can take 4 to 6 months depending on the complexity of the case.

 

Aspects to Focus on When Writing a Petition for Writ of Certiorari

Because certiorari review is discretionary and is only rarely granted, the Colorado Supreme Court generally focuses on cases that will have a broad legal impact as opposed to simply reviewing a lower court’s decision for error.

In particular, the Colorado Supreme Court generally focuses on the following considerations in deciding whether to grant certiorari review:

– Whether the case presents an issue that has not been previously decided by the Colorado Supreme Court;

– Whether the case reflects a ruling that is not in accord with previous Colorado Supreme Court decisions;

– Whether the case presents an opportunity to resolve conflicting lower court decisions; and

– Whether the case has any other aspects that are exceptional enough to require review.

See C.A.R. 49. Notably these factors are not dispositive nor are they all encompassing as to whether the Colorado Supreme Court will grant certiorari review. They are merely guidelines as to what the court focuses on when determining whether cetiorari review should be granted for a particular case.

Accordingly, although not required, a party writing a petition for writ of certiorari to the Colorado Supreme Court would be wise to focus on these factors as opposed to generally arguing that certiorari review is necessary to correct a lower court’s error.

 

Procedural Requirements of Filing a Petition for Writ of Certiorari

In drafting a petition for writ of certiorari, the procedural process and formatting requirements are generally governed by C.A.R. 49 to 57, the Colorado appellate rules specific to certiorari review.

With respect to time deadlines for seeking certiorari review, C.A.R. 52 indicates when a petition for writ of certiorari must be filed. In particular, for more traditional appeal routes where certiorari review is sought in relation to a Colorado Court of Appeals judgment, the due date for a petition for writ of certiorari is dependent on whether a rehearing is sought at Colorado Court of Appeals level.

If no rehearing is sought, a petition for writ of certiorari must be filed within 42 days of the Colorado Court of Appeals entering its judgment. If a rehearing is sought and denied, a petition for writ of certiorari is due within 28 days after the denial of the rehearing request.

Notably, seeking a rehearing with the Colorado Court of Appeals is optional; however, no petition for writ of certiorari may be filed with the Colorado Supreme Court until after the time for filing a rehearing has expired. Requests for rehearing with the Colorado Court of Appeals are due within 14 days of the court of appeals judgment being entered. Accordingly, a petition for writ of certiorari cannot be filed with the Colorado Supreme Court until a minimum of 14 days after the Colorado Court of Appeals has issued an opinion. See C.A.R. 40(a), 52(b).

Additionally, for the less common scenario where certiorari review is being sought from a district court judgment reviewing a county court judgment as an appeal, a petition for writ of certiorari must be filed no later than 42 days after the judgment has been entered. Notably, there are no Colorado appellate rules pertaining to rehearings with the district court. Appellate rehearings are rarely, if ever, sought at the district court level. 

 

Briefing Requirements for a Petition for Writ of Certiorari

In addition to timing restrictions, a petition for writ of certiorari must conform to the specific briefing and formatting requirements enumerated under the Colorado Appellate Rules. Specifically, the petition for writ of certiorari must:

– Comply with the general brief formatting requirements of C.A.R. 32, including that the brief is formatted with 14 point or larger font; is on 8 ½ by 11 inch paper; is double-spaced; and has margins of at least 1 ½ inches on the top and 1 inch on the left, right, and bottom;

– Not exceed 12 pages unless it contains no more than 3,800 words and contain a certification indicating compliance with this requirement;

– Contain a listing of the specific issues presented for review to the Colorado Supreme Court. Importantly, only the issues set forth in the list will be considered if certiorari review is granted;

– Contain a specific reference to the opinion, judgment, or decree from which review is sought;

– Contain a concise statement of the grounds upon which the Colorado Supreme Court has jurisdiction over the case; including the date of the opinion, judgment, or decree sought to be reviewed and the time of its entry;

– Contain a concise statement of the procedural and factual history of the case as relevant to the issues requested for review;

–  Contain a direct and concise argument discussing the reasons why the writ should be allowed; and

– Include an appendix containing a copy of the underlying opinions or judgment sought to be reviewed and the text of any pertinent statute or ordinance.

See C.A.R. 53. Additionally, the petition for writ of certiorari must also contain a certificate of service indicating that it has been served on the opposing party in conformance with the requirements of C.A.R. 25. A docket fee of approximately $255 must also be paid at the time of filing the petition for writ of certiorari with the Colorado Supreme Court. See C.A.R. 51.

Importantly, an advisory notice of the petition for writ of certiorari should be filed with the appellate court and trial court. See C.A.R. 53(f), 3(a). This is to put the lower courts on notice that a petition for writ of certiorari has been filed and, also, to put the lower appellate court on notice that a transcript of the record will soon have to be transmitted to the Colorado Supreme Court.

Under C.A.R. 51, a transcript of the record in the underlying case is due at the time the petition for writ of certiorari is filed with the Colorado Supreme Court. However, the obligation to provide the record to the Colorado Supreme Court is on the lower court.

Accordingly, speaking with the appellate clerk of the lower court as soon as a party knows it will be pursuing a petition for writ of certiorari is advised so that the clerk may start preparing the record while the petition for writ of certiorari is being prepared. However, this is an informal process and, to the extent the lower court requires a more formal process, a designation of record can be filed to put the clerk on official notice of what should be included in the record. See C.A.R. 51.

Notably, if the record is unable to be provided at the same time the petition for writ of certiorari is filed, the Colorado Supreme Court frequently grants extensions of time such that the record can be submitted after the petition has been filed.

 

Process After a Petition for Writ of Certiorari Is Filed

Once a petition for writ of certiorari is filed, any opposing parties will have 14 days to file a response. In a response, opposing parties should argue the reasons why certiorari review should not be granted in this case including, if applicable, that the case is not unique and that it will not have a broad impact on legal precedent.

If a response is filed, the petitioning party will then have 7 days to file a reply responding to the opposing party’s arguments. Notably, filing a response or reply is optional, neither are required in the petition for writ of certiorari process. See C.A.R. 53.

Ultimately, if certiorari review is granted, the case will then proceed to briefing on the merits which is procedurally similar to normal appellate briefing. In particular, briefs must comply with the content and length requirements of C.A.R. 28. The petitioners opening brief will be due within 42 days after the petition for certiorari is granted and the respondent’s answer brief will be 35 days after filing of the petitioner’s brief. The petitioner may then file a reply brief within 21 days after the answer brief is filed. See C.A.R. 57, 54, 31; William H. Erickson, A Summary of Colorado Supreme Court Internal Operating Procedures, 11 Colo.Law. 356 (1982).

If a petition for certiorari is denied, then the lower court’s ruling will become final. See C.A.R. 54.

 

Additional Considerations in Filing a Petition for Writ of Certiorari

While a petition for writ of certiorari is generally due within a certain amount of time after the lower appellate court has entered a judgment, an extension of time to file the petition may be requested from the Colorado Supreme Court under C.A.R. 56.

Whether an extension is granted is within the discretion of the Colorado Supreme Court. In order to request an extension, the party intending on filing a petition for writ of certiorari must first open a Colorado Supreme Court case, enter an appearance in the case, and pay the petition for writ of certiorari docketing fee. A motion for extension of time to file may then be filed into the case. See C.A.R. 56.

One important aspect on appeal is whether or not the underlying judgment will be stayed pending resolution of the appeal. Along these lines, a party may request a stay during the pendency of both a petition for writ of certiorari and, to the extent the petition is granted, during the pendency of certiorari review in front of the Colorado Supreme Court.

However, if a party wants a stay, it must first request a stay from the lower appellate court before requesting a stay from the Colorado Supreme Court. That is, the Colorado Supreme Court will only entertain a stay of execution for any pending judgments if the party seeking the stay has already requested one from the lower appellate court. It the lower appellate court grants a stay, there is no need to request one from the Colorado Supreme Court. See C.A.R. 55.

© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.

Disclaimer: The information on this website is intended to be general information only and not legal advice. Laws change frequently and the information on this website may not be up to date, nor is the information intended to be fully comprehensive. For legal advice specific to your case please contact J.D. Porter, LLC or another licensed attorney.