B. Procedure in original cases The procedure in original cases is governed by Supreme Court Rule 5, which reads as follows: "Cases on the original docket shall be governed, as far as may be, by the rules applicable to cases on the appellate docket. "The initial pleading in any such action may be accompanied by a brief and shall be prefaced by a motion for leave to file, which motion will be presented to the court by the clerk on the first motion day following its lodgment in the clerk's office. If leave to file is granted the case will be placed on the original docket and the parties shall make such cash deposit with the clerk for the payment of his fees as he may require. 4 "Additional pleadings shall be filed as the court directs." Preparation and filing of pleadings An original case is commenced by the filing of a formal motion for leave to file. This may take the form of a simple request for leave to file, for the reasons more fully set forth in the attached complaint, or for reasons briefly stated in the motion; or it may also contain a request that the defendant or respondent show cause why the relief requested should not be granted. The complaint appended to the motion takes the same form as a complaint in a civil action in a district court. For a form, see p. 411, infra. Rule 5 permits the initial pleading to be accompanied by a brief. Whether a brief should be attached depends upon the nature of the case. If counsel is certain, because of the type of case, that the motion for leave to file will be granted, and that he will have subsequent opportunity to present his arguments, he may properly dispense with a supporting brief. This procedure might be appropriate in suits between states with respect 4 * The clause relating to the "motion day" is obsolete. to boundaries or water rights, for example, since these are recognized classes of cases falling within the Court's original jurisdiction. When the primary issue in the case is one of law which is likely to be determined on the pleadings, there is reason to attach a supporting brief. if The motion for leave to file, pleading, and supporting brief, any, should be bound together in a single printed pamphlet, consecutively numbered. The printed form should be the same as for briefs, as prescribed in Rule 26 (see p. 164, supra). Forty printed copies should be filed with the Clerk. Although the Rules make no specific provision for service, copies should also be served on the opposing party, as in other cases. As Rule 5 states, "if leave to file is granted *** the parties shall make such cash deposit with the clerk for the payment of his fees as he may require." As to fees, see Rule 32 (7) and pp. 148-9, supra. Procedure after the pleading is filed No fixed procedure is followed after the motion for leave to file and the pleading are filed. The Supreme Court itself determines what steps should be taken in each case, and notifies the parties. It is permissible, however, for respondent to file an opposition to the motion for leave to file without leave of court. This is not required and the Court will not wait for such an opposition before acting on the motion. Since the procedure which counsel should follow is prescribed by the Court on a case by case basis, all that can be done here is to outline various methods of procedure which the Court has followed. (1) The Court may deny leave to file, without more, which ends the case. (2) The Court may issue to the adverse party a rule to show cause why the motion for leave to file should not be granted, or why the relief prayed for should not be granted. Upon the return to the rule, the Court will then determine whether to dispose of the case summarily or to order additional proceedings. (3) The Court may order argument on the motion for leave to file. This course is often followed when only a point of law is involved. The argument on the motion for leave to file may relate either to jurisdictional issues or to the merits of the case. When an argument is ordered, any party who has not done so should file a brief. (4) The Court may grant the motion for leave to file and order argument on the merits of the case, or on specified points of law. This procedure is likely to be followed when the questions presented are legal rather than factual. (5) The Court may grant the motion for leave to file, and direct that process be served on the defendant. The case then follows the course of an ordinary lawsuit in a trial court. Defendant may move to dismiss the complaint, or file an answer. Other motions, such as motions for judgment on the pleadings or for summary judgment, are permissible. If no questions of fact are presented, the Court will set the case for argument. If factual issues appear, the Court will generally appoint a Master to take the evidence and submit his findings and recommendations. The parties will have an opportunity to argue before the Master, file exceptions to his findings and report, and present arguments and briefs to the Court before the Court's final decision. When the case comes before the Court for argument, the Rules governing cases on the appellate docket are applicable to the brief and the oral argument. See Chapters X and XI, pp. 273, et seq., infra. Section 1872 of Title 28 U.S.C. provides: "In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried by a jury." So far as is known, there have been no jury trials in the Supreme Court since the early days of its existence. See Georgia v. Brailsford, 3 Dall. 1. IX EXTRAORDINARY WRITS A. Original cases under Court's appellate All federal courts, including the Supreme Court, are empowered by 28 U.S.C. §1651 to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The Supreme Court and any Justice thereof are also authorized by 28 U.S.C. §2241 to grant writs of habeas corpus. The principal extraordinary writs are mandamus, prohibition, habeas corpus and certiorari. The writ of certiorari under 28 U.S.C. §1651 is not the same, jurisdictionally, as the writ of certiorari provided for in 28 U.S.C. §§1254-1257, which govern the bulk of the cases coming to the Supreme Court in the ordinary course of appellate review. Since the jurisdiction of the Court to issue an extraordinary writ is invoked as a means of correcting error in a lower court, the writs are an exercise of the Supreme Court's appellate jurisdiction, not its original jurisdiction under Article III of the Constitution. But the application for the writ before the Supreme Court institutes a new case which has never been heard by a lower court even though its object is to correct error below. For that reason, the case in the Supreme Court is an original action, governed in its procedure by Rule 5, and the writs are often referred to as original writs. Indeed, until recent years, the extraordinary writ cases were placed on the Original Docket along with cases arising under the Court's original jurisdiction. Inasmuch as the constitutional and statutory bases for the issuance of the two types of cases are entirely different, the writs are now placed on the Court's Miscellaneous Docket. Procedurally, however, they are still governed by Rule 5, applicable to original actions. B. Jurisdiction to issue extraordinary writs Section 1651 of Title 28 U.S.C. (1948) provides that: "(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. “(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction." In order to determine when writs are "necessary or appropriate in aid of [the Supreme Court's] jurisdiction and agreeable to the usages and principles of law," counsel must, of course, turn to the cases. For this field of the law has developed in common-law fashion, and the statutory provision does no more than recognize that it is the Court's function to determine when it is appropriate for a writ to issue. It would not be possible in a book of this scope to analyze or describe in any detail the situations in which the Supreme Court will issue extraordinary writs. A brief, though not allinclusive, summary of the principal bases for the issuance of the writs, with reference to a few leading cases, may be helpful to indicate when counsel should inquire further into the possibility of obtaining relief by way of an extraordinary writ. Mandamus, prohibition and certiorari In general the writ of mandamus is sought to compel a lower court to do something it has refused to do, and the writ of prohibition to prohibit it from doing something it otherwise |