70 The Alabama Lawyer 199 (2009). Basics of Certiorari Practice in the Alabama Supreme Court.

• Author: BY MARC JAMES AYERS & ANDREW L. BRASHER

The Alabama Lawyer

2009.

70 The Alabama Lawyer 199 (2009).

Basics of Certiorari Practice in the Alabama Supreme Court

Basics of Certiorari Practice in the Alabama Supreme CourtBY MARC JAMES AYERS & ANDREW L. BRASHERThe writ of certiorari (in Latin, "to be more fully informed") is an extraordinary writ available to the Alabama Supreme Court by which the Court can "pull up" for review a decision of the Alabama Court of Civil Appeals or the Alabama Court of Criminal Appeals. While it is a commonly sought writ, there is, at time, some confusion about the writ. Seeking appellate review from the Alabama Supreme Court by way of a writ of certiorari is not like bringing a direct appeal, and should not be thought of as such. Instead, the writ provides a limited avenue by which the Alabama Supreme Court - solely upon its discretion - can decide one or more issues in a case originally within the jurisdiction of one of the lower appellate courts (or that had been "deflected" to the court of civil appeals). See Ala. R. App. P. 39(a) ("Certiorari review is not a matter of right, but of judicial discretion.").

Maintaining proper view of the nature and operation of the writ is important, and can increase one's chances of success in petitioning for the writ. In cases falling within the jurisdiction of the lower appellate courts, there has been a tendency to consider review by the intermediate courts as a kind of "first step" of the appellate process, with the second being review by the Alabama Supreme Court. This viewpoint is inaccurate, and can lead to mistakes in petitioning for certiorari review. It is more accurate (and safer) to view the relationship between Alabama's lower appellate courts and the Alabama Supreme Court like the relationship between a federal circuit court of appeal and the United States Supreme Court. While the chances of obtaining certiorari review from the Alabama Supreme Court might be better than it would be before the United States Supreme Court, the nature of the relationship is essentially the same. Nobody considers an appeal to the Eleventh Circuit, for example, as merely a "first step" on their way to the United States Supreme Court. Accordingly, where a direct appeal is to one of Alabama's lower appellate courts, that court is the appellate court for that matter; further review by a writ of certiorari is available with regard only to certain specific issues and extraordinary circumstances.

Not surprisingly, the Alabama Supreme Court grants only a small percentage of certiorari petitions, and it is the petitioner's job to convince the court that there are "special and important reasons for the issuance of the writ" in his case. Ala. R. App. P. 39(a). Many petitions are summarily denied because they are procedurally noncompliant. Therefore, the easiest and best way to increase your chances of having issues reviewed by the Alabama Supreme Court on a writ of certiorari is to survive the court's initial procedural review by closely following the directions of Rule 39, Ala. R. App. P. A clearly-presented, procedurally compliant certiorari petition tends to stand out from the crowd even before the merits of the petition have been examined.

Filing an Application for Rehearing before Seeking Certiorari Review

When you receive a decision from one of the lower appellate courts, the first question is not whether one should petition for certiorari review, but whether to file an application for rehearing. The answer is easy with regard to decisions from the Alabama Court of Criminal Appeals, because an application for rehearing is a jurisdictional prerequisite for certiorari review of that court's decisions, with some narrow exceptions. Ala. R. App. P. 39(c), 40(d)(1). However, an application for rehearing is not a prerequisite with regard to decisions by the Alabama Court of Civil Appeals. Ala. R. App. P. 39(b), 40(d)(2). Applications for rehearing typically must be filed within 14 days of the decision. See Ala. R. App. P. 40(c).

Application for rehearing can serve various purposes beyond simply attempting to get the deciding court to change its mind. A party may want to correct ambiguous or incorrect factual statements in the court's opinion or clarify the court's ruling. As discussed below, an application for rehearing can be particularly helpful if a party believes that the court's reasoning conflicts with a decision of one of the lower appellate courts, the Supreme Court of Alabama, or the United States Supreme court - as such a conflict provides a proper ground for certiorari review - but the opinion does not discuss the applicable precedent.

The Form of the Petition for a Writ of Certiorari

Under Rule 39(d), Ala. R. App. P., a petition for a writ of certiorari must contain the following elements:

* The style of the case, the name of the petitioner, the circuit court from which the cause is on appeal and the name of the court of appeals to which the petition for certiorari is directed; * The date of the decision sought to be reviewed and, if an application for rehearing was filed, the date of the order...