Is filing for a Tennessee statutory writ of certiorari the same as bringing a 'cause of action' in court?

Plain-English summary

A senator asked the AG whether Tennessee's statutory writ of certiorari, codified at Tenn. Code Ann. §§ 27-8-101 to -119 and 27-9-101 to -114, is itself a "cause of action." The AG said no.

A cause of action is "all the facts which together constitute the plaintiffs' right to maintain the action". The writ of certiorari, by contrast, is a procedural device for obtaining judicial review. Tenn. Code Ann. § 27-8-101 lets a court grant the writ "whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy." It does not apply when the Tennessee Rules of Appellate Procedure govern.

The Tennessee Court of Appeals in Yousif v. Clark explained the writ's origins (Article VI, § 10 of the Tennessee Constitution) and its procedural character: it cannot substitute for an appeal when an express appellate path exists (Tragle v. Burdette; Sullivan v. Cocke), though limited exceptions cover fraud, court-clerk negligence, or willful court actions (McMurry v. Milan; Belcher v. Belcher; Kearney v. Jackson; General Motors Acceptance Corp. v. Dennis). The 14 Am. Jur. 2d Certiorari treatment confirms the writ's character as a vehicle for requesting that a record from an inferior tribunal be sent up for revision of legal matters.

Because the writ is a process, not a substantive right, it does not create or preclude any cause of action. Failure to follow the writ procedure properly might forfeit the ability to obtain review (Johnson v. Metropolitan Government; Jasper Engine and Transmission Exchange v. Mills), but that is a procedural consequence, not the destruction of a substantive claim.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: When would I use a writ of certiorari instead of a regular appeal?
A: When no other appellate path is available and an inferior tribunal acted illegally or beyond its jurisdiction. Common settings include review of decisions by local boards (zoning, civil service) and certain administrative determinations that fall outside the standard appellate framework.

Q: Why does it matter whether something is a "cause of action"?
A: Statutes of limitations, claim preclusion, standing, and procedural requirements all attach to causes of action. If certiorari were itself a cause of action, those doctrines would apply to the writ in the same way they apply to a lawsuit for breach of contract. As process, the writ operates differently: it asks a superior court to act on an existing record, and its time limits and procedural rules come from § 27-8 and § 27-9 (and Article VI, § 10).

Q: Can I get certiorari just because I missed an appeal deadline?
A: Generally no. Negligence by the party seeking certiorari is not a ground (General Motors Acceptance Corp. v. Dennis). The exceptions are narrow: fraud or contrivance by the opposing party or the court, or the willful or negligent act of the court clerk that excused the failure to appeal.

Q: Where is certiorari rooted in Tennessee law?
A: In Article VI, § 10 of the Tennessee Constitution, with statutory implementation at Tenn. Code Ann. §§ 27-8-101 to -119 and 27-9-101 to -114.

Background and statutory framework

Tennessee preserves both common-law certiorari (where the inferior tribunal exceeded its jurisdiction) and statutory certiorari (where statutes provide a certiorari mechanism for specific types of review, particularly for certain administrative decisions). The two are closely related and often overlap in practice. The Yousif decision provides a useful map of the doctrine, including the appeal-substitution rules and the narrow exceptions.

The opinion's significance is mostly clarifying: certiorari fits in the procedural toolkit, not the substantive-claim toolkit. That matters for choice-of-statute-of-limitations analysis, for pleading, and for how a court frames the review it is conducting.

Citations and references

Constitutional provisions:

• Tenn. Const. art. VI, § 10

Statutes:

• Tenn. Code Ann. §§ 27-8-101 to -119 (writ of certiorari, general)
• Tenn. Code Ann. §§ 27-9-101 to -114 (statutory certiorari for review of administrative actions)
• Tenn. Code Ann. § 27-8-101 (grounds for the writ)

Cases:

• Tragle v. Burdette, 222 Tenn. 531, 438 S.W.2d 736 (Tenn. 1969) (Tennessee Supreme Court)
• Sullivan v. Cocke, 167 Tenn. 253, 68 S.W.2d 933 (Tenn. 1934) (Tennessee Supreme Court)
• McMurry v. Milan, 32 Tenn. 176 (Tenn. 1852) (Tennessee Supreme Court)
• Belcher v. Belcher, 18 Tenn. 121 (Tenn. 1836) (Tennessee Supreme Court)
• Kearney v. Jackson, 9 Tenn. 294 (Tenn. 1830) (Tennessee Supreme Court)
• General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489 (Tenn. App. 1984) (Tennessee Court of Appeals)
• Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788 (Tenn. App. 1956) (Tennessee Court of Appeals)
• Watson v. Wells, 20 Tenn. App. 611, 103 S.W.2d 30 (Tenn. App. 1937) (Tennessee Court of Appeals)
• Yousif v. Clark, 317 S.W.3d 240 (Tenn. Ct. App. 2010) (Tennessee Court of Appeals)
• Johnson v. Metropolitan Government for Nashville Davidson Co., Tenn., 54 S.W.3d 772 (Tenn. Ct. App. 2001) (Tennessee Court of Appeals)
• Jasper Engine and Transmission Exchange v. Mills, 911 S.W.2d 719 (Tenn. Ct. App. 1995) (Tennessee Court of Appeals)

Subject

Opinion No. 15-09, Scope of Statutory Writ of Certiorari, February 2, 2015

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-09.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 2, 2015
Opinion No. 15-09
Scope of Statutory Writ of Certiorari

QUESTION

Does the statutory writ of certiorari process, generally codified at Tenn. Code Ann. §§ 27-8-101 to -119 and 27-9-101 to -114, constitute a cause of action?

OPINION

No. Tennessee's statutory writ of certiorari is a process for obtaining judicial review of an inferior tribunal's decision, and the writ process itself does not create or constitute any substantive legal cause of action.

ANALYSIS

Tennessee's statutory writ of certiorari process is generally codified at Tenn. Code Ann. §§ 27-8-101 to -119 and 27-9-101 to -114. The writ "may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy." Tenn. Code Ann. § 27-8-101. The writ does not apply to an action governed by the Tennessee Rules of Appellate Procedure. Id. As the Tennessee Court of Appeals recently explained:

The writ of certiorari derives from Article 6, Section 10 of the Constitution of Tennessee, but the practice with respect to how and when it may be obtained is set forth in statutory provisions enacted by the General Assembly. Tragle v. Burdette, 222 Tenn. 531, 438 S.W.2d 736, 737 (1969). The writ may also not take the place of an appeal when an express provision for an appeal is available. Tragle at 737; Sullivan v. Cocke, 167 Tenn. 253, 68 S.W.2d 933 (1934); although, there are some circumstances such as fraud, contrivance by the opposing party or the court, or the willful or negligent act of the court clerk that will excuse the failure to pursue an available appeal and permit review by way of certiorari. See e.g. McMurry v. Milan, 32 Tenn. 176 (1852); Belcher v. Belcher, 18 Tenn. 121 (1836); Kearney v. Jackson, 9 Tenn. 294 (1830); General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489 (Tenn. App. 1984). Neglect on the part of the petitioner is not a ground to grant the writs of certiorari. General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489, 491 (Tenn. App. 1984) (citing Uselton v. Price, 41 Tenn. App. 134, 292 S.W.2d 788 (1956); Watson v. Wells, 20 Tenn. App. 611, 103 S.W.2d 30 (1937)).

Yousif v. Clark, 317 S.W.3d 240, 244 (Tenn. Ct. App. 2010). See also 14 AM. JUR. 2d Certiorari § 1 (stating that certiorari "is a writ issued by a superior to an inferior court of record or to some other tribunal or officer exercising a judicial function, requiring the certification and return of the record and proceedings so that the record may be revised and corrected in matters of law").

These various authorities evidence that the statutory writ of certiorari is a process to request a superior court to review the actions of an inferior tribunal. The writ process thus does not itself create or preclude any substantive legal cause of action. Of course, the failure to properly follow the writ process might forfeit a further review of an inferior tribunal's decision. See Johnson v. Metropolitan Government for Nashville Davidson Co., Tenn., 54 S.W.3d 772, 774 (Tenn. Ct. App. 2001); Jasper Engine and Transmission Exchange v. Mills, 911 S.W.2d 719, 720 (Tenn. Ct. App. 1995).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

WILLIAM E. YOUNG
Associate Attorney General

Requested by:
The Honorable Mike Bell
State Senator
309 War Memorial Building
Nashville, Tennessee 37243