Monday, December 31, 2012

Cert petitions: First applications

A recent Tennessee Court of Appeals decision involving the common law writ of certiorari highlighted a case decided by the Tennessee Supreme Court over a year ago, but one which I had missed. The recent case, handed down within just the last day or two by the Tennessee Court of Appeals, Phillips v Northwest Correctional Center, stands for the proposition that if a petition for writ of certiorari is properly verified, the fact that it does not state that it is the first application for a common law writ is not necessarily fatal to the cause of action. The Court of Appeals relies on a case, Talley v Tennessee Board of Professional Responsibility, 358 S.W. 3d 185 (Tenn. 2011), which so holds.

This is certainly a reasonable way to pursue these cases. The Supreme Court in Talley holds that because the proper verification is a requirement of the Tennessee Constitution, that is not waivable, and that the court loses subject matter jurisdiction if that requirement is not met. On the other hand, the requirement that the petitioner state that it is the first application for a writ of certiorari is merely statutory, and that its absence from the petition is not necessarily fatal. The court indicates that the petition can be amended, and that the amendment relates back to the time of the original filing of the petition.

While the requirement of the verification for an appeal from a land use planning board or commission is still a needless complication, hopefully, the Talley case will usher in a more sensible and relaxed approach to the common law writ of certiorari. If the statutory requirement that the petitioner must state that it is the first application for the writ of certiorari, perhaps the other statutory requirements are also waivable and not fatal as a jurisdictional matter. “Tis a consummation devoutly to be wished.”

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