The Art of Having a Petition for a Writ of Certiorari Granted by the Alabama Supreme Court.
Posted on April 19, 2014
One of the most difficult goals for an Alabama appellate attorney to accomplish is having the Alabama Supreme Court grant certiorari review of a ruling of the Alabama Court of Civil Appeals. Certiorari review by the Supreme Court is available pursuant to Rule 39, Ala.R.App.P. However, the procedures established by Rule 39, which has been substantially amended several times, have a long history of being difficult for practitioners to fully comply with. When I served as a law clerk and then staff attorney to several justices on the Supreme Court from 1993 to 1998, almost every certiorari petition that came across my desk for review and recommendation to the justice I worked for could have been denied based on procedural noncompliance alone.
While minor violations were usually overlooked so that the court could grant review and entertain any significant issues raised, at least one staff attorney who worked for another justice of the court took delight in finding a basis in almost every petition to recommend it be denied for noncompliance so as to not have to add another case to her justice’s docket and workload. Because so many meritorious certiorari petitions were denied for procedural noncompliance, a group of staff attorneys sought to have the court amend the order denying the petition to list the nature of the violation, but that idea was not adopted. So, after entering private practice, I authored an article published in the Alabama Lawyer that provided an explanation of what how practitioners needed to do to avoid having petitions denied for noncompliance. Fortunately, the Alabama Supreme Court amended Rule 39 in 2000 and several times thereafter to simplify the rule.
This has made Rule 39 easier to comply with, yet obtaining certiorari review still seems an almost impossible task. Although there are minor exceptions, in civil matters, Rule 39(a) limits certiorari review to tried and true grounds: material questions of first impression and instances where the opinion of the Court of Civil Appeals conflicts with opinions of the United States Supreme Court, the Alabama Supreme Court, or another opinion of the Court of Civil Appeals. So, given these standard type grounds, how do you prepare a petition for certiorari review that will be granted by the Alabama Supreme Court? In addition to ensuring your petition is in compliance with the remaining procedural hurdles of Rule 39, you have to prepare a “turbocharged” petition. By that, I mean your petition has to stand out from the crowd of petitions piled high on the desk of one of the staff attorneys or law clerks in the chambers of an Alabama Supreme Court justice.
As with appeals, petitions for a writ of mandamus, and various other appellate matters, certiorari petitions are randomly assigned to one of the justices to prepare a proposed ruling that will be voted on by the other justices come the next monthly conference. Although exact procedure may vary from one justice’s chamber to another, certiorari petitions filed with the Alabama Supreme Court are generally reviewed first by a law clerk or staff attorney for the justice to whom the matter is assigned. (This justice is often referred to by the court as the “JTWA.”) If that person recommends to his or her justice that the petition be granted, and the justice is of a like mind, the other members of the court are very unlikely to dissent.
So, in order to awake the staff attorney or law clerk from the drudgery of reviewing so many certiorari petitions destined for the dust bin, you have to do an impeccable job of establishing the imperative nature of that question of first impression or establishing the existence of conflict with prior case law. Establishing conflict requires a meticulous explanation – using pinpoint quotations from the Court of Civil Appeals opinion (if one was issued) and the conflicting case law. If the Court of Civil Appeals did not issue an opinion and merely issued a summary affirmance order, you’ve got to demonstrate conflict between the cases cited to support the order and what you assert is controlling precedent. If as a part of that you allege that the Court Appeals got the facts wrong (either in its opinion, or necessarily based on the nature of its ruling if no opinion was issued), you have to demonstrate that the facts you now assert are correct were presented (and supported by record citations) in the Statement of Facts in the brief that was submitted on appeal to that court, or in your application for rehearing to that court (if one was filed). Keep in mind that the record on appeal is not transmitted by the Court of Civil Appeals to the Alabama Supreme Court until after a petition is granted and so there is no record to review with a certiorari petition. So, if there is a critical document in the record that you want the court to review, remember to attach it to your petition or it has no chance of being seen.
Beyond these things you’ve got to do your best to make the issues exciting and the case important, rather than just another run-of-the-mill matter seen every day of the week. Crank up your writing style and use action verbs to make the petition seem of urgent importance. You have to get the staff attorney or law clerk invested in the idea that this petition opens the door a landmark opinion that they would want to have played a role in. So, ask yourself some critical questions before you begin the petition. Why is it urgent that the Court of Civil Appeals opinion be reviewed? Why is granting review and reversing the Court of Civil Appeals important beyond the personal interests of your client? Even if you do everything else right, you have to have very good answers to those questions in order to have the Alabama Supreme take review of a matter upon a petition for a writ of certiorari.