Certiorari before Judgment, 0921 COBJ, Vol. 50, No. 8 Pg. 18

• Position: Vol. 50, 8 [Page 18]

50 Colo.Law. 18

Certiorari before Judgment

Vol. 50, No. 8 [Page 18]

Colorado Lawyer

September, 2021

August, 2021

APPELLATE LAW

This article examines and offers insights on Colorado Appellate Rule 50, which allows the Supreme Court to review a case before the Court of Appeals renders a decision.

The Colorado Supreme Court's jurisdiction is surprisingly varied and complex. Broadly speaking, the Court's power to hear cases can be divided into three categories. The Court's original jurisdiction covers, among other things, writs like habeas corpus and mandamus, along with opinions on "important questions upon solemn occasions" when requested by the Governor or General Assembly.¹ The Court's appellate jurisdiction includes cases where the party seeking review of a judgment has the right to go directly to the Supreme Court, skipping any intermediate appellate review.^[2] And the Court's certiorari jurisdiction extends to cases over which the Court has discretionary review to hear an appeal from another appellate court.³

This article takes up one facet of the Court's certiorari jurisdiction: its power under C.A.R. 50 to grant a petition before the Court of Appeals issues a judgment. It describes the mechanics of the rule and analyzes the factors the Court considers in deciding whether to grant a Rule 50 petition.

Why is Rule 50 Important?

Most lawyers are familiar with the commonly used C.A.R. 49 certiorari process, under which a case is appealed to the Colorado Court of Appeals and that court issues an opinion.⁴ The losing party then files a petition for a writ of certiorari, which the Supreme Court can choose to grant or deny.⁵ But under C.A.R. 50, the Supreme Court can review a case pending in the Court of Appeals before that court renders a judgment—bypassing intermediate appellate review and resolving the case on a much shorter timeline.

Though the Supreme Court doesn't utilize Rule 50 very often, it's an important component of the Court's supervisory authority over the judicial branch.

Rule 50 Mechanics

Under the Colorado Constitution, the Supreme Court has "a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed bylaw."⁶ Consistent with this constitutional authority, the General Assembly gave the Supreme Court the power to review a case before the Court of Appeals has made a final determination.⁷ That power is governed by C.A.R. 50, which provides that the Supreme Court may issue a writ if

1. "the case involves a matter of substance not yet determined by the supreme court" or would involve "the overruling of a previous decision of the supreme court";

2. the Court of Appeals has been "asked to decide an important state question which has not been, but should be, determined by the supreme court"; or

3. "the case is of such imperative public importance as to justify the deviation from normal appellate processes and to require immediate determination in the supreme court."⁸

Rule 50 deviates from Rule 49's traditional certiorari review in a few key ways. First, unlike a petition under Rule 49, which states that issuing a writ "is a matter of sound judicial discretion,"⁹ Rule 50 explicitly requires that at least one of the three above-listed conditions be satisfied. Second, the factors the Supreme Court considers are similar, but not identical. While both Rules 49 and 50 evince a concern about a matter of "substance not yet determined by the supreme court,"¹⁰ the similarities end there. Rule 50 is primarily concerned with the importance of the issues; Rule 49, in contrast, contemplates Supreme Court review in appeals where there are conflicting opinions on the same legal question and where a lower court has "so far departed from the accepted and usual course of judicial proceedings" that the Supreme Court must intervene.¹¹ In a final twist, a Rule 50 petition need not be filed by any party. While a litigant certainly may file a petition, the Court of Appeals can request that the Supreme Court issue a writ, and the high court itself can order a transfer of the case.¹²

Petitioning for review under Rule 50 is fairly straightforward. Because it's a petition for certiorari, the Rule 53 requirements apply: The petition must include the sections outlined in C.A.R. 53(a), including an advisory listing of the issues, a jurisdictional statement, and an argument about why the Court should grant the petition.¹³ Likewise, the rules on filing, service, and form of appellate documents cover Rule 50 filings.¹⁴ But unlike a petition under Rule 49—which requires a party to file within 42 days after entry of judgment on appeal or, if a petition for rehearing is filed, 28 days after the denial¹⁵ —Rule 50 doesn't impose any specific time limit. Instead, the rule requires that the underlying case be "newly filed or pending in the court of appeals, before judgment is given in said court. . . ."¹⁶ Attorneys are advised to file their Rule 50 papers as quickly as possible. Doing so prevents the Court of Appeals from wasting its time and resources, and a prompt filing underscores the litigants' argument that die issue presented is a critical one that cannot await intermediate appellate review.

One concern about filing a Rule 50 petition warrants mention. A party considering filing under the rule might worry that the Supreme Court's grant of die Rule 50 petition will preclude certiorari review of other issues in the case.¹⁷ While no opinion directly addresses this issue, die case law strongly suggests that additional review remains available. In Goebel v. Colorado Department of Institutions, the Supreme Court granted a Rule 50 petition that covered "only one of several issues raised on appeal."¹⁸It reversed die decision in part and "remand[ed] the case to die court of appeals to consider the otiier issues raised on appeal."¹⁹ More generally, the Supreme Court has often held that die Court of Appeals retains jurisdiction to decide issues left unresolved after the high court grants certiorari and issues a decision.²⁰ Thus, die Court's decision to address an issue under Rule 50 won't prohibit a litigant from later seeking review of any other issue under Rule 49.

Relevant Factors

As noted above, Rule 50 calls out three conditions that justify a Rule 50 petition. But while one of these three conditions is necessary, it isn't sufficient. The Supreme Court retains the discretion to decide whether to issue a writ even if the requisite showing has been made.²¹Understanding when the Court chooses to exercise that discretion requires a deeper dive into die case law.

Unfortunately, Rule 50 has always been a bit of a legal backwater. Decisions even citing the rule are few and far between, and no opinion analyzes die rule in any detail.²² The same dearth of authority holds in die federal system. The analogous federal rule—Supreme Court Rule 11—allows the US Supreme Court to hear a case before a federal court of appeals issues a judgment if "the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination by this Court."²³ But die US Supreme Court grants certiorari review under this rule even less frequently than the Colorado Supreme Court grants review under C.A.R. 50.²⁴ Still, we...