Thursday, July 19, 2012

More about the CL writ . . .

Most of the time, I have the feeling that I am almost the only person around who has any interest in the common law writ of certiorari, the means by which to appeal almost any land use planning controversy to a court of law or equity.

Last week, although we certainly didn't need the reminder, the Tennessee Court of Appeals once again made clear that a failure to verify the petition for writ of certiorari is fatal. In Depot Property v Town of Arlington, a case that we have looked at before, 2011 WL 334472, 2011 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 31, 2011), the original Court of Appeals decision was appealed to the Tennessee Supreme Court, and the court granted permission to appeal but only for the purpose of remanding for consideration of Bd. of Prof’l Responsibility v. Cawood, 330 S.W.3d 608 (Tenn. 2010).

The case returned to the Tennessee Court of Appeals, and after further briefs and arguments, the court dismissed the case for lack of jurisdiction. We have spoken of this issue several times before, but it cannot be emphasized enough: when filing a petition for writ of certiorari, the facts in the petition must be sworn, and the petition must state that it is the first application for extraordinary relief. TCA §27-8-106.

Before we get too far into the case and its holding, let me mention something that I mentioned in the original posting about this case: it looks to me that the case should have been decided on a declaratory judgment action, not the common law writ. As a result, the second Court of Appeals decision while interesting is possibly applied in the wrong circumstance.

It turns out that the petition in the Depot Property case was not sworn, and it did not state that it was the first application for extraordinary relief as required. Since at least 1955, the Tennessee courts have recognized that without meeting these two requirements (among others) there is no subject matter jurisdiction in the courts, and the case must be dismissed.

As often happens in these cases, the petition was signed by the petitioner, and the signature was notarized indicating that the correct person actually signed the document. However, that is not the import of TCA §27-8-106. The statute requires that the affiant indicate that he or she is familiar with the facts and that they are true to the best of his or her knowledge. There was no such indication here. The notary only notarized the signature; there was no indication that the facts alleged in the petition were true.

Further, the statute clearly requires that the petition also allege that it's the first application for extraordinary relief. Again, in this case, there was no such allegation.

While the attorneys for the petitioner attempted valiantly to argue that those requirements were discretionary, they are clearly required and as a result the Tennessee Court of Appeals dismissed the case for lack of subject matter jurisdiction.

So, while I am on my soapbox, let me go on to add that these statutory requirements make no sense in the context of land use planning disputes. I'm sure somewhere back in antiquity, the requirements served a particular purpose. But certainly in the context of land use planning and zoning, there is no need to have anyone swear to the allegations of the petition. In fact, of course, in most pleadings these days, verification is not necessary. And specifically in the area of land use planning law, in cases such as this, the facts are all pretty well agreed to by both sides. Normally, the real legal issue involves the conclusions to be drawn from the facts.

Last year, a bill was introduced before the Tennessee General Assembly, which would have enacted into law the Tennessee Land Use Review Act, which would've done away with all of these acute requirements in the context of land use planning cases. Unfortunately, the four major cities in Tennessee opposed the adoption of the act; you see, it helps them to keep it more complicated. When a lawyer for the property owner makes a mistake, the government gets off scott free. there's no review because there's no subject matter jurisdiction, even if the decision of the administrative body was clearly erroneous. So it behooves the four major cities to oppose any change.

Perhaps this case will serve as a rallying call, to encourage the General Assembly to pass a simpler and more reasonable method of filing administrative appeals in the land use and zoning context.

But in the meantime, if you are filing a petition for writ of certiorari, be sure that the affiant swears or affirms that the allegations are true, and that one of the allegations is that the petition is the first application for extraordinary relief. Otherwise, the petition is subject to being dismissed for lack of jurisdiction.

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