Part 1: Should I File a Cert Petition?

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At the U.S. Supreme Court, having your case reviewed is like winning the lottery. Your chances of appearing before the Colorado Supreme Court are slightly better. According to statistics published by the Court, in fiscal year 2015, there were over 1000 cert petitions filed with the Colorado Supreme Court (1089), and the Court typically grants less than 10% of the petitions filed each year. Still, filing a petition for cert to the Colorado Supreme Court is relatively inexpensive compared to the work already invested at the Colorado Court of Appeals. Petitions can be filed electronically and are relatively short (12 pages or 3800 words under the current rules).

Filing a petition may be worth the chance, depending on your case, but some cases are more likely than others to be good candidates. Though the Justices’ ultimate reasons for granting or denying cert in a particular case are cloaked in a veil of secrecy, the cases the Court does take reflect a few value judgments that are helpful to future would-be petitioners. Here are a few questions to consider as you ponder whether to file cert in the Colorado Supreme Court.

Was a Statute Declared Unconstitutional?

This is a trick question. Where a statute is declared unconstitutional at the trial court level, the case is actually headed for the Colorado Supreme Court as a direct appeal, not as a petition for certiorari. Under our rules, the Colorado Court of Appeals does not have jurisdiction in these situations, so the Colorado Supreme Court is your go-to court. In this case, the case is going to proceed right to briefing just like any normal direct appeal. The exception is that if the trial court upheld the statute, but the Court of Appeals disagreed and declared the statute unconstitutional, a cert petition is the next step and may well spark the Justices’ interests.

Was the Case Published by the Court of Appeals?

Another consideration is whether the opinion out of the lower court was published. If the case was published by the Colorado Court of Appeals, it has precedential value and will be binding on all trial courts in the state. This makes the case a bit more important in terms of its reach and potentially more likely that Supreme Court review is warranted. In contrast, if the case was not published, its binding effect is limited to the parties in that matter. Unless some other important reason for granting cert is present, the fact that the opinion will be limited in its effect may weigh against the Supreme Court exercising its authority. That being said, the Court has occasionally granted cert on unpublished cases in the past, so it is still important to consider other factors.

Does the Case Involve an Issue of First Impression for the Supreme Court?

If the Court of Appeals has made new law through its opinion, the Supreme Court may want to weigh in as well. One of the factors in C.A.R. 49—the Colorado appellate rule about considerations on cert—is whether the lower court “has decided a question of substance not heretofore determined by” the Supreme Court. Issues that have never been addressed by the Colorado Supreme Court are prime fodder for cert.

Is the Issue of Great Importance?

If the issue presented in your case has great importance to the broader society, it may be good to present to the Supreme Court. Indeed, “questions of substance” are some of the main issues considered by the high court. You may also consider whether amici will join the petition or contribute briefing during the merits stage. The presence of these “friend of the court” briefs can sometimes signal the importance of an issue to a broader group. But even this by no means guarantees the Court will take the case.

Is There a Split Among the Divisions of the Court of Appeals?

Resolving a split among the divisions of the Court of Appeals is another reason cert may be granted. But unlike the U.S. Supreme Court, which takes most of its cases to resolve splits among the federal circuits, splits among the divisions of the Court of Appeals are rare, and therefore don’t make up a large bulk of the Colorado Supreme Court’s docket. It is much easier to avoid splits within a single court, even one that sits in different divisions, than it is to avoid splits in different circuits across the country. Nevertheless, splits sometimes occur. If a split exists, it is almost always very apparent in the case, and is a clear instance where the Supreme Court may be interested in granting cert.

Did the Court of Appeals Really Go out on a Limb?

Technically, the Colorado Supreme Court has supervisory powers and can take a case simply to correct what it views as an error by the Court of Appeals. It does this frequently. But if this is the only reason for granting cert, the odds of it happening in your case are low. Just given the sheer volume and constraints on the Court, it is impossible for the Court to perform an error-correcting function in all cases. But, if the case is really out there (and you are not the only one who thinks so…), it may be one of those rare instances where the Court will take the case simply to perform this function.

You Can, but Should You?

Finally, it is always important to consider whether it is ultimately worthwhile to keep litigating the case. This is a very difficult call for most lawyers, particularly those who lost an appeal below. Petitioning for cert is fairly inexpensive, but what if the petition gets granted? Are you prepared for that cost? There will be briefs to write (and they will be different from those prepared for the Court of Appeals). Oral arguments before the Supreme Court take place in almost every cert case, and they are longer arguments than at the Court of Appeals. This will result in increased cost. You also have to consider whether you have a good case on the merits. It may be possible to get cert granted, but consider the possibility of whether it could get worse: bad facts make bad law.

Ultimately, the decision on whether to file a petition for cert is multi-faceted and dependent on the facts of each individual case. Reviewing your case in the light of the questions discussed above is a good start toward making your decision.