I. Terminology

Writs are one of the oldest form of legal proceeding in the United States, which originated in English common law.  The word “writ” comes from the Old English word writan, meaning “to write.”  Put most simply, in legal proceedings a writ typically means a written directive from a court to someone to do something.  A request for a writ is a “writ petition.”

 

Writs have historically been used for all kinds of things, including starting elections, calling legislators to their posts, and summoning jurors.  But the writs typically involved in our practice are “extraordinary writs” or “prerogative writs,” which are particular forms of court orders.

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The five most common forms of prerogative writ in the United States are:

• a writ of prohibition, which orders someone not to do something;

• a writ of mandamus (Latin for “requiring”), which orders someone to do something;

• a writ of habeas corpus (Latin for “you have the body”), which orders a prisoner or other person brought to court to inquire into the legality of his or her detention or custody;

• a writ of certiorari (Latin for “to be made more certain”), which orders a lower court to send a case to a higher court for review; and

• a writ of quo warranto (Latin for “by what right”), which questions someone’s right to hold an office.

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Jonathan Sternberg and his team have handled proceedings over all five of these types of writs.  Other common law writs exist (e.g., coram nobis, coram vobis, procedendo, scire facias), but functionally they are generally archaic and unused today in the United States.

II. Uses of writs
 

A. Basics of a writ petition

 

Usually, a writ is sought by a “petition” or “complaint,” depending on the jurisdiction.  Because a writ issues in the name of the state or federal jurisdiction at issue, usually the title of a writ action is “[State or federal jurisdiction] ex relatione (Latin for “from its relation to”) [name of person or entity seeking the writ] versus [name of person or entity who the writ is being directed against].”  So, for a writ of mandamus by John Smith in Missouri state court directed against the Director of the state’s Department of Revenue, the action would be titled State of Missouri ex relatione John Smith v. Director of Revenue.  This would be shortened to State ex rel. Smith v. Director of Revenue.

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The petition then sets out all the factual allegations that the party filing it believes entitles him or her to a writ and then makes legal arguments why in the context of those facts it is warranted for the court to issue the writ requested.

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B. Use as a form of civil lawsuit

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Writs are often simply a chosen form of civil lawsuit.  For example:

• If a person has a right to something from the government but the government refuses to recognize this and perform its duty, the person may be able to seek a writ of mandamus from a trial court forcing the government to do so, which would be filed as a “petition” or “compliant” like other civil lawsuit. 

• If someone without the right to custody of a child is holding that child, a person who actually has the right to custody may be able to seek a writ of habeas corpus from a trial court returning that child to the rightful custody, which again would be filed as any other civil lawsuit.

• If a prosecutor or similar government agent believes that a person is holding office unlawfully, the agent may be able to seek a writ of quo warranto from a trial court to oust that person from the unlawfully held office, which also would be filed as any other civil lawsuit.

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In that circumstance, the writ petition names the individual or entity bringing it as the “relator” or “informant” or “petitioner,” depending on the type of writ, and names the individual or entity desired to be subject to the writ as the “respondent.”  The trial court then issues an “order in [name of writ],” the respondent is directed to answer, and the case proceeds like any other civil lawsuit, including the possibility of a bench trial (i.e., a trial before a judge without a jury).  When the trial court enters a judgment either granting or denying the writ petition, whichever party is unsuccessful often can appeal that decision to an appellate court, as in any other civil lawsuit.

 

In some jurisdictions, if a lower court refuses to hear a writ case at all and simply denies the petition, there is no appeal, and instead the party seeking the writ would refile the writ petition as an “original action” in the next highest court, typically an appellate court.  (This is common in many jurisdictions for writs of habeas corpus used for post-conviction relief.)  If the appellate court wishes to hear the case, and there has not been any prior determination by a lower court, it may appoint a “special master” (usually a presently serving or retired judge) to hear the proceedings first, even holding a bench trial if necessary.  When the special master issues his or her report, the parties would then file briefs in the appellate court asking that court to adopt or not adopt the special master’s report.

 

Jonathan Sternberg and his team have been involved in a variety of writ proceedings in trial courts.  Some examples are:

 

State ex inf. Bailey v. Gardner, No. 2322-CC00383 (Circuit Court of the City of St. Louis, Missouri, 2023)

• Opposed the Missouri Attorney General seeking a writ of quo warranto to oust St. Louis’s head prosecutor

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State ex rel. Yoest v. McEvoy, 529 S.W.3d 383 (Missouri Court of Appeals, Western District 2017)

• Reversed the trial court’s denial of a petition for a writ of mandamus in the trial court to command a county collector to allow our clients to bid at tax sales

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State ex inf. White ex rel. Clements v. Cacioppo, No. 16CY-CV01441 (Cir. Ct. of Clay County, Mo. 2016)

• Defeated mayor’s and prosecutor’s attempt to obtain a writ of quo warranto ousting a city councilman from office

 

B. Use as an interlocutory appeal

 

Another common use of a writ is as a form of interlocutory appeal – that is, as a way to seek an appellate court to review some order of a lower court before a final judgment has issued, which would make the case capable of an ordinary appeal.  But when the case cannot yet be subject to an ordinary appeal, a writ may be a vehicle to obtain review of something a lower court did that a party disagrees with.  In some states (including Missouri, where we are based), a writ – typically of mandamus or prohibition – is the most common form of interlocutory appeal.

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In that circumstance, the petition is filed in an appellate court and is directed “against” the lower court.  That is, the writ petition again names the individual or entity bringing it as the “relator” or “informant” or “petitioner,” depending on the type of writ, and names the lower court – or even the judge by name – as the “respondent.”  To the untrained eye, this looks like “suing a court,” when in reality it is just asking the appellate court to undo or change something the trial court did.

 

If the appellate court does not wish to hear the interlocutory appeal, it will simply deny the petition.  But if it wishes to hear the interlocutory appeal, it then issues a “preliminary writ” or “preliminary order in [name of writ],” depending on the type of writ, and the case then typically proceeds through appellate briefing and argument, as in any other appeal.  The appellate court eventually then issues an opinion either makes the preliminary writ “permanent” (i.e., reverses or changes the lower court’s decision being challenged) or “quashes” the preliminary writ (i.e., leaves in place the lower court’s decision being challenged).  In most jurisdictions, whoever is unsuccessful in the appellate court then can seek further review (i.e., rehearing, review by a higher court) as in any other appeal.

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As appellate lawyers, Jonathan Sternberg and his team regularly are involved in writ proceedings as interlocutory appeals, both filing and opposing writ petitions.  Some examples are:

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State ex rel. DKM Enterprises v. Lett, 675 S.W.3d 687 (Missouri Court of Appeals, Western District 2023)

• Obtained a writ of prohibition ordering the dismissal of a wrongful death claim for lack of personal jurisdiction

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State ex rel. Koehler v. Midkiff, 596 S.W.3d 630 (Supreme Court of Missouri 2020)

• Obtained a writ of prohibition barring a lower court from making a contested temporary child custody determination during a divorce without hearing

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State ex rel. Cullen v. Harrell, 567 S.W.3d 633  (Supreme Court of Missouri 2019)

• Sought a writ of prohibition barring a lower court from requiring the release of information from a party to a case without a hearing years after the case was over

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State ex rel. Sternberg v. Byrn, No. SC95610 (Supreme Court of Missouri 2016)

• Sought a writ of prohibition barring a lower court from compelling private lawyers to represent indigent parties for free

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State ex rel. Doe v. Moore, 265 S.W.3d 278 (Supreme Court of Missouri 2008)

• Sought a writ of prohibition barring a lower court from ordering a non-“sex offender” to be treated like one as a condition of his probation

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III. The Bottom Line

Writs are a different (and peculiar) form of legal proceeding both for clients and lawyers alike, which even many very experienced litigation attorneys often do not understand.

Jonathan Sternberg and his team handle all aspects of what you have just read about, from determining what form of writ may be appropriate to litigating writ cases at both the trial and appellate levels.  If you are or are contemplating being a party to a writ proceeding, we invite you to contact us anytime.