Ala. R. App. P. 39
In those cases in which an application for rehearing is required, the application must comply with Rule 40(e).
Ala. R. App. P. 39
Note from the reporter of decisions: The order amending Rule 3(d) (1), Rule 11(c), Rule 39(d) (4), and Rule 57(j) (1), effective August 1, 2015, and adopting the Committee Comments to the amendments to Rule 3(d) (1), Rule 11(c), and Rule 39(d) (4) is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.
Committee Comments
Committee Comments to Amendment to Rule 39(d) (4) Effective August 1, 2015
Although Rule 39(d) (2) provides that the petition is to include the date any application for rehearing was filed and the date of any order on rehearing, the amendment to Rule 39(d) (4) requires that a copy of the court of appeals. order or notice on the application for rehearing be attached to the petition as an exhibit. A copy of the court of appeals. order or notice is needed because the Supreme Court does not have the record before it for its preliminary review of the petition for the writ of certiorari.
Court Comment to Amendment To Rule 39 Effective June 1, 2005
Some members of the Bar have had a difficult time complying with Rule 39(d)(5). That subsection requires that if the petitioner presented new, additional, or corrected facts in the application for rehearing filed with the court of appeals, the petitioner must present the same facts to the Supreme Court in the petition for the writ of certiorari. Before this amendment to Rule 39, the Supreme Court allowed a brief on the merits to be filed with the petition as a time-saving device. However, too many petitioners put their facts in the brief rather than in their petition. The Committee believes that this was the result of allowing the petition and the brief to be filed at the same time. The Court, however, reviews only the petition to determine if it will issue the writ of certiorari calling for the record. Because there is no record before the Supreme Court and because the Court will look only to the petition to determine whether the writ shall issue, a high number of petitions have been denied because the Supreme Court had no facts to review. Facts may be considered by the Supreme Court only if presented to that Court in the form required by Rule 39.
The Committee believes that eliminating the requirement that a brief be filed with the petition may avoid such confusion. Consequently, this rule has been amended to eliminate the requirement that a brief accompany the petition. Rule 39(d)(5). Rule 39(d)(5)(A)-(C) has been amended to allow the statement of facts to be submitted as an attachment to the petition, rather than contained in the petition.
If the petition is granted and the Supreme Court issues a writ of certiorari, then the petitioner may file a brief on the merits. Thereafter, the respondent may address whether the petition for writ of certiorari complies with Rule 39(a)(1)(A)-(E) and may address the merits in a responsive brief.
Language has been added to Rule 39(a)(1)(D)(2) requiring the petitioner to refer to this subsection if the petitioner is proceeding under it.
If the statement of facts is attached to the petition, it does not count against the page limitation of Rule 39(d). Further, there is no longer a limitation on the number of pages in petitions in which the petitioner is seeking certiorari review of a direct appeal in a death-penalty case. See Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001), and O'Sullivan v. Boerckel, 526 U.S. 838(1999).
Subparagraph (d)(3)(B) has been amended to conform with the amendment of Rule 39(a)(1)(D)(2).
The amendment to subdivision (f) explains that the writ of certiorari is the official directive of the Supreme Court to the appeals court to deliver the record. The Supreme Court may also identify, in the order, the particular issue or issues it wishes the parties to brief.
Court Comment to Amendments to Rule 39(d)(5) Effective September 15, 2008
At times, the petitioner may not agree with the facts as stated in the court of appeals' main opinion but agrees with facts stated in a dissent or a special writing. The amendment s toRu1e 39(d)(5), (d)(5)(A), and (d)(5)(C) provide that, in such a case, the petitioner shall indicate in the petitioner's statement of facts which part of the facts in the dissent or special writing the petitioner agrees with and indicate in which part of the dissent or special writing those facts can be found.
Committee Comments
Rule 39 follows former Supreme Court Rule 39, as amended, except for a few changes.
The first changes are in subdivision (c). In (c)(1), provision is made for the review of any decision which, for the first time, determines whether the ordinance, statute, etc., is valid or invalid.
Subdivision (c)(4) is the same as in former Rule 39(4) except that in a few instances a conflict will appear in a court of appeals opinion with one of its own prior opinions which was not cited or discussed. Ordinarily, this could be corrected on application for rehearing, but, if not, the ground would support a petition for certiorari.
Subdivision (c)(5) is new. The courts of appeals, by statute, Code of Ala., § 12-3-16, are governed by the decisions of the supreme court, and it is difficult to get a proper ground for certiorari when possibly the weight of authority is contrary to the Alabama position.
Subdivision (c)(5) would permit a court of appeals to follow the decision of the supreme court but still to invite this court to take another look at the question.
The provision in (c) relating to the death penalty was included because of the present state of law as to that question resulting from the holding in Furman v. Georgia, 408 U.S. 238. The same reasoning applies to Rule 8(c)(1).
The mere fact that petitioner alleges one or more of the grounds listed in (c)(1)-(5) does not mean that, as a matter of right, the writ will be granted. The writ will still be denied if, in the court's opinion, (1) the validity has already been decided correctly, (2) the decision does not affect the officers, (3) the case is not one of first impression, (4) there is no material conflict with prior decisions, or (5) the controlling cases should not be overruled.
Permissible language for stating the grounds is suggested in Stallworth v. State, 285 Ala. 72, 229 So.2d 27.
Only one set of briefs is required of each party, and the respondent has the choice of filing his brief immediately after receipt of petitioner's brief, or waiting until notice that the writ has been granted. This eliminates refilling of briefs as was previously necessary when the writ was granted.
The scope of review is generally that which is now used and with which the Bar is familiar. This includes the presumption of correctness of the findings of the court of appeals, Ex parte Newbern, 286 Ala. 348, 239 So.2d 792, appeal dismissed 409 U. S. 813, 93 S.Ct. 60, 34 L.Ed.2d 69; the rule that this court does not review the application of the harmless error rule by a court of appeals unless authorized by statement of facts in the opinion, Jones v. City of Birmingham, 288 Ala. 242, 259 So.2d 288; and the rule that in many instances, this court can go to the record for a more complete understanding of those features treated in the opinion of a court of appeals. See cases cited in both the opinion and concurring opinion, Johnson v. State, 287 Ala. 576, 253 So.2d 344, and this action of the court may be ex mero motu, Wilbanks v. State, 289 Ala. 171, 266 So.2d 632.
This rule permits a petitioner to ask a court of appeals for additional facts on rehearing, and if the request is not granted, he may include the additional facts in his petition for certiorari and, if correct, they will be considered by this court as part of the facts.
For years there has been a conflict in Alabama cases as to whether the application of the law to the facts stated in an opinion of a court of appeals could be considered by the supreme court on petition for certiorari. The cases of Postal Telegraph Co. v. Minderhout, 195 Ala. 420, 71 So. 91; Ex parte Gray, 204 Ala. 358, 86 So. 96; Ex parte Commonwealth Life Ins. Co., 204 Ala. 560, 86 So. 522, so hold. The majority of cases hold according to the rule stated and three recent cases so holding are Prince v. Kennemer, 292 Ala. 168, 291 So.2d 152; Union Camp. Corp. v. Blackman, 289 Ala. 635, 270 So.2d 108; Ex parte Duggar, 288 Ala. 309, 260 So.2d 395. The last sentence in subdivision (k) settles the conflict.
See Form 22 for petition.
Court Comment to Amendments to (a), (b), (f), (h), and (i), Effective April 1, 1984.
Temporary Rule 17,A.R.Crim.P., became effective on April 1, 1984. That rule provided for certain pre-trial appeals by the state in criminal cases. Certain amendments in Rule 39(a), (b), (f), and (h) were necessary to make this rule correspond to the certiorari procedure set out in Temporary Rule 17, A.R.Crim.P., for those pre-trial appeals by the state. Rule 39(a) was amended to make it clear that in an appeal pursuant to Temporary Rule 17, A.R.Crim.P., the denial of an application for rehearing in the court of criminal appeals is not a jurisdictional prerequisite for the filing of a petition for writ of certiorari. Sections (b), (f), and (h) were all amended to reflect the shorter time periods applicable under Temporary Rule 17 for pre-trial appeals by the state.
Rule 39(i) was amended to conform to Rule 34, which had been amended in 1981 to provide that oral argument is not routinely granted upon request. Rule 39(i) was also modified to refer to "the supreme court" rather than to "this court."
Court Comment to Amendment to 89(a) and Addition of 39(t), Effective December 6, 1988.
In cases governed by Rule 21(e), application for rehearing is not a prerequisite to review in the supreme court; the aggrieved party has the choice of proceeding by way of application for rehearing and then petition for writ of certiorari under Rule 39 or applying for immediate review in the supreme court under Rule 21(e) without filing an application for rehearing.
Comment to Amendment to Rule 39(d) Effective March 1, 1990.
The March 1, 1990, amendment to Rule 39(d) substituted the term "letter-size paper" for the term "legal-size paper" in the first sentence of the section.
Court Comment to Amendment to Rule 39(c) Effective March 12, 1990.
This amendment was to Rule 39(c)(4), which was reworded to make it clear that a certiorari petition could assert as grounds for review of the court of appeals' decision an alleged conflict with a prior decision of the United States Supreme Court.
Court Comment to Amendments Effective October 1, 1991.
These amendments omitted masculine pronouns and references to the appendix system.
Committee Comments to Amendments to Rule 39(e) and (f) Effective February 1, 1994.
The references to "nine" copies of petitions and briefs was changed to "ten" to correspond to actual Supreme Court practice. The rule was also amended to refer to the writ as being "issued" rather than "granted."
Committee Comments to Amendment to Rule 39(h) Effective February 1, 1994.
The third sentence, requiring a statement of the reasons for requesting oral argument, was added to make practice under Rule 39 consistent with practice under Rule 34(a). This amendment also changed the phrases "In the event the writ is granted" and "notice of the granting of the writ" to "In the event the writ is issued" and "notice of the issuance of the writ."
Committee Comments to Amendment to Rule 39(k) Effective February 1, 1994.
Rule 39(k) was amended to refer to Rules 53 and 54, which became effective January 1, 1993, and to clearly state that in a case where the court of appeals has provided no statement of facts or where an applicant for rehearing is dissatisfied with the statement of facts given by the court of appeals in its opinion, the applicant for rehearing must present to the court of appeals, on application for rehearing, a proposed additional or corrected statement of the facts in order to be able later to put before the Supreme Court on certiorari review those additional or "corrected" facts. The motion by which the rehearing applicant places those additional or "corrected" facts before the court of appeals is commonly called a "Rule 39(k) motion," and the applicant's proposed statement of additional or "corrected" facts is commonly called a "Rule 39(k) statement of facts."
Under Rule 39(g) the Supreme Court preliminarily reviews each petition for writ of certiorari for "probability of merit." Upon that preliminary review, the Supreme Court has before it only the petition, the supporting brief, the opinion of the court of appeals, and perhaps a Rule 39(k) motion (if the petitioner has followed the Rule 39(k) procedure). The court of appeals transfers the record to the Supreme Court only after the Supreme Court has granted a petition for writ of certiorari and has issued the writ. Because the Supreme Court does not have the record when it makes its preliminary review, the only facts before it will be those stated in the opinion of the court of appeals (if the court of appeals has issued an opinion) and those proposed in the Rule 39(k) motion (if the petitioner has copied the proposed statement of facts into the certiorari petition).
Court Comment to Amendment to Rule 39(c) Effective January 1, 1997.
The amendment to Rule 39(c) removes gender specific pronouns.
Court Comment to Amendment to Rule 39 Effective May 19, 2000 (death-penalty cases), August 1, 2000 (all other cases)
The amendment completely revises Rule 39.
The amendment changes the standard for certiorari review of criminal cases in which the death penalty is imposed. For provisions relating to death-penalty cases, see subsection (a)(2)(A)-(E). The amendment removes the provision in the former Rule 39(c) that provided that a petition for a writ of certiorari to the Supreme Court in a case in which the death penalty was imposed would be granted as a matter of right. With this amendment, review of death-penalty cases will be at the discretion of the Supreme Court. The Supreme Court retains the authority to notice any plain error or defect in the proceedings under review in those cases. In a death-penalty case, the petitioner must concisely state the grounds when review is sought based on a failure to recognize as prejudicial any plain error or defect. That statement must include a description of the issue and circumstances warranting plain-error review. The Supreme Court retains the authority to enlarge the time for filing a petition for a writ of certiorari in a death-penalty case. Lastly, the Supreme Court may notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court or the Court of Criminal Appeals, but it is not required to do so.
In civil cases, an application for rehearing is not a prerequisite for certiorari review by the Supreme Court. Note, however, that if an application for rehearing is filed with the Court of Civil Appeals, it must comply with Rule 40 and the scope of review will be pursuant to Rule 39(k). In those cases in which an application for rehearing is filed with the court of appeals, the party should pay close attention to those sections of Rules 39 and 40 relating to the statement of facts.
Because the Supreme Court does not have the record before it when it preliminarily reviews the petition for the writ of certiorari, the brief in support of the petition, and the opinion or unpublished memorandum, if any, of the court of appeals, the facts before the court at that time will be the fact statement contained in the petition and in the opinion or unpublished memorandum if the opinion or the unpublished memorandum contains a statement of facts. A statement of facts is not to be included in the brief; it must appear in the petition itself.
This amendment changes the former practice under Rule 39(k) of attaching to the petition for writ of certiorari a copy of the Rule 39(k) motion to adopt a corrected or proposed statement of facts filed with court of appeals. Instead, if an application for rehearing has been filed in, and denied by, the court of appeals, the party shall put in the petition for the writ of certiorari the statement of facts presented to the court of appeals in the application for rehearing and shall verify that the statement of facts is a verbatim copy of the statement presented to the court of appeals in the application for rehearing.
The amendment continues to require reference to the record in the statement of facts. Although the Supreme Court does not have the record before it on preliminary review, if certiorari review is granted, the record will be forwarded to the Supreme Court from the court of appeals and, upon the record's being transferred to the Supreme Court, the reference to the record in the statement of facts will be useful to that court.
The amendment clarifies the briefing schedule on preliminary review and in the event certiorari review is granted.
Committee Comments to Rule 39(d), (f), and (h) Effective June 1, 2002
The revisions to Rule 39(d), (f), and (h), effective June 1, 2002, are necessitated by revisions to Rules 32. Rule 39(d), dealing with form of the petition, is amended so as to cross-reference Rule 32(b)(2), imposing a limit of 15 pages on a petition (except in capital cases, where the limit is 20 pages). Rule 32(b)(2) also incorporates provisions governing form in Rule 32(a), thereby making applicable to petitions the standards prescribing paper size and font and type style. See Rules 32(a)(4) and (5). Subdivisions (f) and (h) of Rule 39, dealing with form of briefs, are also amended to cross-reference Rule 32(a). See Rule 32(a)(2), second sentence, for specific directions for colors of the covers of briefs in certiorari proceedings.
Note from the reporter of decisions: The order amending Rule 39, effective immediately as to death-penalty cases and as of August 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
Committee Comment to Amendment to Rule 39(d) Effective October 1, 2020
Rule 39(d) has been amended to provide a word limit for most petitions consistent with the amendment to Rule 32, but to retain a page limit for petitions filed pro se.
"Note from the reporter of decisions: The order amending Rule 39(d)(5), Rule 40(e), Rule 53, and Rule 54, Alabama Rules of Appellate Procedure, effective October 1, 2023, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d."