A Sorry State of Affairs: The Writ of Certiorari

We don't really need a reminder, but we got one the other day from the Tennessee Court of Appeals: to file a petition for (common law or statutory) writ of certiorari properly, the facts must be verified, that is, sworn to by someone with knowledge. In Brundage v Cumberland County (Tenn App August 4, 2010), a statutory writ of certiorari was requested but not verified. The petition sought to challenge the development of a landfill. But without verification within 60 days of the action of the administrative body, the trial court lacks subject matter jurisdiction and the case must be dismissed. Which is what happened here; the Court of Appeals affirmed. As the court said:

The case law consistently holds that the failure of the petitioner to verify the petition as required by the Constitution and the statute is proper grounds for dismissal, as the court does not obtain jurisdiction without a properly verified petition.

This is truly unfortunate. It is simply a trap for the unwary. The courts are correct about the law, but why should a case not be decided on the merits? Why should it be tossed out for failure to verify? In fact, in most of these kinds of cases, the facts are almost agreed upon by the parties anyway. The real issue usually is how is the law to be applied to the facts. Verification is largely irrelevant. Tennessee needs a different method of review, one that doesn't have numerous traps for unwary litigants.

Let me review for just a moment the number of little tricks in the writ of certiorari:

The petition must:

– be verified, that is notarized and sworn to as true (TCA § 27-8-106)
– state that it is the first application for extraordinary relief (TCA § 27-8-106)
– state that there is no other plain, speedy or adequate remedy (TCA §27-8-101)
– allege that the petitioner is aggrieved (TCA §27-9-101)
– be filed within 60 days (TCA §27-9-102)

And, by the way, if the neighbors are the petitioners, then the attorney must be extra careful to establish standing.

I have used these technical challenges to obtain dismissals of cert petitions myself. But I never feel very good about it. It's time Tennessee had a better way of reviewing local government land use decisions. Certiorari has out lived its usefulness.