Petitions for the writ of certiorari are a fairly routine part of North Carolina appellate practice and procedure, but the Appellate Rules do not provide much guidance on what those petitions should contain.  Under Rule 21(c), the only requirements for such a petition are a statement of the relevant facts, a statement of the reasons why the writ should issue, and certified copies of the relevant parts of the record.

At the same time, the writ of certiorari (like the writ of mandamus, prohibition, or supersedeas) is an extraordinary writ.  It is never issued as of right.  So what should a petition contain, beyond the minimum requirements laid out in Rule 21?

A decision from the Court of Appeals issued this week gives some insight into how at least some judges would answer this question.  In State v. Duncan, the defendant lost a motion to suppress and then pleaded guilty to certain criminal offenses.  Because he did not give notice of his intention to appeal the suppression ruling prior to the guilty plea, he had no right to appeal.  Instead, the defendant filed a petition for writ of certiorari to seek review of the suppression ruling.  The Court of Appeals denied that petition and wrote:

Defendant fails to explain why this case involves an extraordinary circumstance sufficient to excuse his failure to preserve his right to appeal. Notably, Defendant fails to mention the word “extraordinary” in his PWC. Defendant merely concludes that the “interests of justice thus require” us to grant a writ of certiorari.

Practice tip:  if you are filing a petition for writ of certiorari, err on the side of inclusiveness.  The petition should both include a description of the error you contend the lower tribunal committed and explain why your case involves extraordinary circumstances.  Doing so will increase the chance that an appellate court will issue the extraordinary writ.

–Kip Nelson