Utah Appellate Law Update
| Publication year | 2014 |
| Pages | 26 |
| Citation | Vol. 27 No. 6 Pg. 26 |
November, 2014
Should the Supreme Court Retain Your Appeal?
Noella A. Sudbury, J.
The final order is entered. The notice of appeal is filed. The case is within the original jurisdiction of the supreme court. You are thinking about asking the supreme court to hear your client's appeal in the first instance rather than transfer it to the court of appeals. But is this really a good idea? And if so, how do you convince the Utah Supreme Court to keep the appeal on its calendar?
Not all appeals are good candidates for retention. If the law is straightforward and the district court simply made an error in applying it, the court of appeals can correct that error and the supreme court is unlikely to be interested in deciding the issue. So what type of cases is the supreme court interested in? And what is the court looking for in a retention letter? This article will address how retention letters differ from petitions for certiorari and explain how, why, and when to submit a retention letter.
RETENTION LETTERS V. PETITIONS FOR A WRIT OF CERTIORARI
A petition for certiorari and a letter requesting retention are similar. For both, the audience is the supreme court, and the primary purpose of the filing is to present the court with an opportunity to clarify the law. So how are they different?
One important difference is that a petition for a writ of certiorari asks the supreme court to review a decision of the court of appeals, while a request for retention asks the supreme court to keep an appeal that it would otherwise transfer to the court of appeals. In other words, a retention letter asks the supreme court to review directly the decision of the district court.
Another difference between a petition for a writ of certiorari and letters requesting retention is that, unlike with petitions, no appellate rules govern the preparation and submission of retention letters. While requests for retention are mentioned in Utah Rule of Appellate Procedure 9 - the rule governing docketing statements - the form and content of a retention letter is governed by an order the supreme court mails to counsel sometime after the appellant files a notice of appeal.
THE CHANCES
Perhaps one of the most notable differences between a petition for a writ of certiorari and a request for retention is that the supreme court grants requests for retention more frequently. In fact, recent statistics indicate that the supreme court votes to...
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