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Bar News - April 16, 2014


Writ of Certiorari in New Hampshire: Pointers and Pitfalls

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Certiorari review is limited to whether the trial court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously.
The writ of certiorari is one of the more unusual and lesser understood remedies found in New Hampshire practice. Certiorari is an extraordinary remedy that is granted at the discretion of the court and is not a matter of right. The writ is granted sparingly and only where to not do so would result in substantial injustice.

Certiorari review is limited to whether the trial court acted illegally with respect to jurisdiction, authority or observance of the law, or unsustainably exercised its discretion or acted arbitrarily, unreasonably, or capriciously. See Petition of State of NH, 154 NH 671, 674. Certiorari is generally allowed when there is no other method of appeal.

A common use of the writ of certiorari in New Hampshire is to appeal decisions of municipal corporations to the superior court, including termination of public employees or officers, zoning and other matters relegated to municipal bodies. Certiorari is also used to appeal decisions from administrative bodies where there is no clear form of appeal. Practitioners using or defending against a writ of certiorari need to be aware of nuances to avoid common pitfalls.

Unless stipulated by statute, a writ of certiorari does not have a specific statute of limitations, but the petition must be made within a reasonable time period after the decision being appealed is made. Depending on the nature of the decision being appealed, a petition for writ of certiorari should be made within 30-45 days of the decision. Petitions outside this timeframe can be challenged by the respondent as untimely and may be dismissed by the superior court.

There are two common mistakes when using a writ of certiorari. Both occur because of the presumption that the writ of certiorari can only address the due process argument and that state law claims relating to the matter cannot be adjudicated in the same proceeding. The writ of certiorari addresses due process concerns and does not provide a de novo review of the appealed matter; however, the superior court can adjudicate state law claims in the same proceeding after it rules on the matter of due process, because any state law claims, like wrongful termination or intentional infliction of emotional distress, will arise out the same set of facts and the same transaction.

A common mistake among petitioners is to apply for a writ of certiorari and, if the court refuses to grant certiorari, petitioners tend to fall into the trap of not petitioning the New Hampshire Supreme Court for appeal of the superior court’s decision and instead move to file an action-at-law in superior court. Actions at law filed in superior court or in federal district court following this pattern characteristically allege constitutional due process violations and state law tort claims.

These actions are vulnerable on several fronts via a motion to dismiss where the defendant can assert that the plaintiff failed to appeal the adverse decision and did not exhaust all remedies before filing its action at law; that the plaintiff’s due process and state claims are barred by res judicata; and by attacking any deficiencies in the plaintiff’s state law claims in the pleading. A proper motion to dismiss addressing these points will succeed, especially with regards to res judicata.

To avoid this trap, petitioners seeking a writ of certiorari should combine any state law claims they would raise in an action at law within their petition, which the superior court will adjudicate separately from the writ of certiorari in the same proceeding. If the superior court refuses to grant the writ of certiorari, then the petitioner’s final remedy is to file a petition of appeal to the New Hampshire Supreme Court. Unlike actions at law under Rule 7, appeals for writ of certiorari are governed by Rule 10 and subject to the discretion of the court. Whether or not the Supreme Court accepts the appeal its decision is final, and the petitioner has no other remedies available afterwards because all claims arise out the same factual transaction and are barred by res judicata.

Practitioners representing petitioners for a writ of certiorari should make the limitations of the remedy clear to their clients, especially when clients press for an action at law. Practitioners representing respondents should be cognizant of deficiencies in the petition, and if the petitioner fails to appeal an adverse decision, should be prepared to defend a potential action at law.


Michael Listner focuses his practice on providing legal services for attorneys, including litigation consulting, general and complex legal research, preparation and responding to motions, and drafting appellate briefs. Contact him at 603-866-0346 or via email at michlis@metrocast.net.

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