So far this series has covered the critical opening document of an appendix for a U.S. Supreme Court petition for certiorari. Now we move down the list in Sup. Ct. R. 14.1(i) to other must-have documents.
Other Relevant Decisions. After the decision you actually want the Supreme Court to review comes a required category of “any other relevant opinions, orders, findings of fact, and conclusions of law entered in the case by courts or administrative agencies.” Rule 14.1(i)(ii).
Think of this second category as the direct line of decisions or actions by courts or agencies that led to the decision you are challenging now. Exclude anything that doesn’t actually explain why, in relation to the issues, you got here from there or that doesn’t form the foundation for the eventual decision being challenged now.
To help you choose which documents to include and in what order, Cockle Legal Briefs analysts will review the main order offered up for review to see if it refers specifically to an order by a lower court or tribunal as the subject of review. If so, that specified decision definitely is part of this next batch. And if that referenced order refers to something else that puts it too in the chain of decision — such as a district judge referring to a magistrate’s report as adopted or rejected in whole or part — then it should be included in the second batch.
If the trial-level court’s (or agency’s) final decision refers to an earlier separate order finding facts and making conclusions of law, that separate order belongs in the second batch.
What do not belong are the many procedural orders and notices and evidentiary filings and pleadings that do not stand as something the court or agency decided as a matter of law or fact relevant to the highest judgment under challenge. Many of these are actions of the parties, not the tribunal. Other actions or orders might come from the court or agency, but they are just moving the case along without deciding anything of substance.
Some lower court orders might seem to fit because they embody decisions along the way to the lower court’s or agency’s final judgment that went up to the higher court for review, but they should be included only if something in them is relevant to some issue that is being offered to the U.S. Supreme Court. For example, you are now complaining about a decision construing Statute A, and you are not raising a certiorari issue about the appellate court’s treatment of Statute B. You have to include the entire highest decision, though it addresses both A and B, and the same is true of lower court decisions that address both laws in the same document. But if separate lower court orders address only B, and have nothing to do with A, then the orders dealing with only B are not necessary in the appendix.
An exception to the “include it all” general rule involves a trial docket reflecting a relevant order or a hearing transcript containing a relevant bench ruling along with irrelevant other discussion. In those instances, you may include the necessary contextual opening (and maybe closing) of the document, keep the relevant material, and replace the irrelevant entries or discussion with “* * *” to mark the omission.
The broad second batch also may include opinions, etc., in companion cases “if reference thereto is necessary to ascertain the grounds of the judgment.”
Once you have identified everything that goes in the “other relevant” batch, the individual documents should be arranged in reverse chronological order. Why? The rule doesn’t say anything about the order within this required category, but standard practice and feedback from the Supreme Court Clerk’s office support arranging the required decisions in reverse order, rather than some other logical order.
Next: The rehearing denial and brief spillover.