Vail Law: Attorney Rohn Robbins this week is writing about writs (column)
July 17, 2018
Quick, writ this down.
No, that's not a typo. Instead, however pretentious of me, it is a command. Bear with me …
A "writ" is an order issued by a legal authority with administrative or juridical powers, typically a court. So although I ordered you "writ" it down, I really had no authority to do so. Instead, it was a make a point.
"The point?" you ask.
To emphasize that a writ is a command.
As a writ is an order or command of the court or other body with authority to command one to do something, one might say that writs are, well … writ large.
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Writs have been around forever — almost forever, anyway. At the least, writs have been hanging out in Anglo-Saxon common law for a couple hundred years before Columbus sailed the oceans blue.
In its earliest form a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the feudal era a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a certain place and time. "Ye olde knights, assemble." Or something like that.
When writs first popped their heads up, they consisted of a brief administrative order, authenticated by a seal (of the wax and die variety rather than of the pinniped persuasion). In the beginning, like life itself, writs were simple. Written in plain English (if you can conceive of olde English being "plain") writs were short and pithy commands to do this or that particular thing. "Show up here." "You are required at the royal court within a fortnight." "This tract of land is granted for your use."
Less order, more writs
But as the second law of thermodynamics predicts (although admittedly this law was conceived well after William the Conqueror began to expand the use of writs), the entropy of the universe — and therefore of the laws — can only increase. In other words, the natural way that things work is for them to become increasingly disordered.
And thus it was with writs.
Rather than the original simple commands written in plain English, the Brits dressed up writs in hoity-toity Latin. Writs began to be used for all manner of things and became more and then even more prolix.
As if scaling some evolutionary tree, writs branched into two distinct species: writs patent which were open for all the world to read (presuming the minority of subjects could, in fact, read), and "letters close" intended for one or more specified individuals alone.
When the Brits crossed the Atlantic and began establishing outposts on the eastern seaboard, they packed their writs in their old kit bags and their writs came along for the ride. Writs thus inherited from Jolly Olde have been part of American jurisprudence since before America became its independent self.
Writing modern writs
Writs, like fashion, have, however, changed. Relief formerly available by a writ is now normally available by a lawsuit or a motion in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts.
A couple of examples:
A writ of habeas corpus, usually used to test the legality of a prisoner's detention, has expressly been preserved. It is explicitly provided for in the United States Constitution (Article 1, Section 9, clause 2). In the U.S. federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts. The writ's application does not stop there: the Supreme Court has held the writ of habeas corpus is open to all individuals held by the federal government, including Guantanamo Bay detainees.
The Supreme Court of the United States employs the "writ of certiorari" to review cases from the U.S. courts of appeals or from the state courts.
A "writ of mandamus" survives as well. A mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
In the manner of clowns unpiling from a tiny car, other writs survive as well: in extraordinary circumstances, one may employ a "writ of prohibition," a "writ of error," a "quo warranto" and my particular favorite simply because of how if flows off of the tongue, a "writ of error corman nobis."
Like sharks and alligators arising in the middle Paleozoic, writs — although vestigial in many ways — are still among us.
See? I told you. You should have writ this down.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.