A writ of certiorari is a discretionary, extraordinary writ—and is therefore never granted as a matter of right. See, e.g., King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924) (explaining that the writ “is allowed only on a reasonable show of merits and that the ends of justice will be thereby promoted”). Not surprisingly, it has long been the rule that a party seeking a writ of certiorari must explain why the writ should be granted. See, e.g., State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (explaining that a petition “must show merit or that error was probably committed below”); State v. Bishop, 255 N.C. App. 767, 769, 805 S.E.2d 367, 369 (2017) (same).

Indeed, sometimes the writ is granted because the substantive argument is meritorious. See, e.g., State v. Friend, 257 N.C. App. 516, 519, 809 S.E.2d 902, 905 (2018). Similarly, the relative merits of substantive arguments may determine which issues are accepted by the appellate court for review. See, e.g., State v. Ross, 369 N.C. 393, 400, 794 S.E.2d 289, 293 (2016).

But the merits of the petition are still distinct from the merits of the underlying legal dispute. After all, granting the petition does not mean that the trial court’s decision will be reversed. Sometimes the appellate court grants the petition and still affirms. See, e.g., State v. Green, 350 N.C. 400, 514 S.E.2d 724 (1999); State v. Hamrick, 110 N.C. App. 60, 428 S.E.2d 830 (1993).

So what kind of “merits” showing is required in a petition? As noted in Beth and Matt’s treatise, the standard has variously been described as “a prima facie case of merit,” “probable error,” or a “potentially meritorious issue.” See Scherer & Leerberg, North Carolina Appellate Practice and Procedure, § 21.04 (2019).

Some recent opinions from the Court of Appeals highlight this issue. In State v. Reid, for example, the defendant was found guilty of criminal charges and ordered to pay attorney’s fees for his appointed attorney. Although the defendant gave notice of appeal in open court, he did not file a written notice of appeal. Because an award of attorney’s fees is a civil judgment that cannot be appealed orally, the defendant lost his statutory right to appellate review. Consequently, his only option was to obtain review via writ of certiorari. The majority of the Court of Appeals panel held that the defendant’s substantive argument regarding attorney’s fees was “meritorious” and, therefore, voted to grant his petition for a writ of certiorari (and reverse the fee award). By contrast, a dissenting judge opined that the petition was “wholly frivolous” and failed to demonstrate “any merit nor any prejudice to invoke discretionary review.” The dissent explained: “Without threshold allegations of both merit and prejudice, review by certiorari is not available to Defendant by rule, statute, or by precedents.”

Reid was not the only opinion from last month to address this issue. In State v. Stokely, the defendant entered an Alford plea to certain criminal charges. By statute, a defendant who enters such a plea is not entitled to appellate review as a matter of right but “may petition the appellate division for review . . . by writ of certiorari.” See N.C. Gen. Stat. § 15A-1444(a1). The Court of Appeals denied the defendant’s petition and dismissed his appeal. The Stokely opinion stated that the defendant did “not present a strong argument for issuance of a writ of certiorari.” Because the defendant failed “to present a meritorious claim or show probable error in the proceeding below,” he had not shown good cause for the writ.

Certainly the appellate courts do not expect (or want) attorneys to present their full legal arguments in a petition for writ of certiorari. On the other hand, a barebones petition asking for the court to exercise extraordinary jurisdiction will not get the job done.

So how much is enough? How intertwined are the petition merits and the substantive merits? Do you have tips on crafting an effective certiorari petition?

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