Ala. R. App. P. 21
Ala. R. App. P. 21
Note from the reporter of decisions: The order amending Rule 21(a) (1) (E), effective August 1, 2015, and adopting the Committee Comments to Rule 21(a) (1) (E) Effective August 1, 2015, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.
Committee Comments to Amendment to Rule 21(a) (1) (E)
Effective August 11 2015
Rule 21(a) (1) (E) was modified to require a separate appendix filed with all petitions for a writ of mandamus or prohibition. The purpose of the appendix is to permit the parties to prepare and transmit copies of those portions of the record deemed necessary to an understanding of the issues presented. The Committee suggests that the documents in the appendix be separated into volumes of no more than 200 pages. The appendix should include an index to the documents contained in the appendix and should be divided to identify and assist in locating a specific document. The hard copy of any appendix and documents should be divided with tabs. In lieu of tabs 1 any appendix filed electronically should be demarcated by cover sheets that clearly identify the particular document that follows (e.g. 1 "Exhibit " or "Tab II ) .
Court Comment to Amendments to Rule 21(a)
Effective June 1, 2005
Rule 21(a) has been amended to add a table of authorities to those items required to be included in a petition filed pursuant to this rule. The only other change to Rule 21(a) is in the organization of the rule.
Notes from the reporter of decisions: The order amending Rule 21(a) and (e)(4), effective September 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
The order amending Rule 5, Rule 21(d), Rule 27(d), Rule 28, Rule 32, Rule 39(d), Rule 39(f), Rule 39(h), and Rule 40(g), effective June 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
Committee Comments
Rule 21, while changing the language of the former Alabama Rule 14, does not change the substance of procedure except in one aspect. If the judge who is named as respondent does not desire to appear in the proceeding, he may so advise the clerk of the appellate court and the parties. His failure to appear does not admit that the petition is to be granted. This provision simply recognizes the reality that mandamus proceedings are in most instances adversary proceedings between the parties to the litigation below, and that the judge is really a nominal party rather than an active party. There are, however, instances in which the judge would consider that he is directly affected and would wish to appear, and the rule permits this. Since the counsel for the opposing party ordinarily files the brief for the judge, this practice would be given a straightforward literal application rather than continuing in the guise of a proceeding in the judge's name. See Form 19 for petition.
The existing presumptions in favor of the correctness of the recitation of facts in the answer to a petition for writ of mandamus will continue in force, but can be controverted as under existing law. See, e.g., Ex parte Helbling, 278 Ala. 234, 177 So. 2d 454; Ex parte Waldrop, 228 Ala. 38, 152 So. 44; Ex parte State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38 So. 2d 560; Wilson v. Brown, 241 Ala. 178, 1 So. 2d 914; Pillans v. Johnson, 262 Ala. 689, 81 So. 2d 365.
Committee Comments to Amendments to Rule 21(a) and 21(e)(4)
Effective September 1, 2000
A petition for a writ of mandamus should be filed without unreasonable delay. Evans v. Insurance Co. of North America, 349 So. 2d 1099, 1101 (Ala. 1977). The amendment to subsection (a) adds three sentences relating to the time allowed for filing a petition for the writ of mandamus or prohibitions; its effect is to incorporate into the Rules of Appellate Procedure the requirement that a petition for a writ of mandamus or prohibition be filed within a reasonable time. This amendment also modifies the title of section (a) to reflect this addition.
Little precedent exists on the subject of the timeliness of these petitions, probably because the courts have published few decisions explaining the denial of a petition. A petition for a writ of mandamus based on a trial court's failure to rule on a matter does not have a benchmark date from which to begin measure a reasonable time. Thus, this amendment, setting the presumptively reasonable time within which to file a petition, will not affect the determination of what is a reasonable time for filing a petition based on the failure rule. However, where the petition for the writ of mandamus challenges an action of the trial court, the amended rule adopts as the presumptively reasonable time the 42-day period for appealing from a final judgment in a civil case, unless the time for appeal is shorter, pursuant to a rule or a statute (see, e.g., Rule 4(a)(1) ), in which case the shorter time becomes the presumptively reasonable time. See Evans, supra, at 1101 (respondent's motion to strike a petition for a writ of mandamus was denied where the petition was filed within 42 days, the time allowed for taking an appeal, and where there was no unreasonable delay on the part of the petitioner or prejudice or other circumstances showing unreasonableness). For examples of appeal times shorter than 42 days see Rule 4(a)(1)(A)-(E) of these Rules.
In a particular case, an appellate court may find a petition challenging a ruling of the trial court to be untimely even though it is filed within the time for taking an appeal, as, for example, when the petition is filed shortly before trial, yet several days or even weeks after the adverse ruling. Consequently, the better practice is to include in the petition a description of the circumstances constituting good cause for a delay, although the amended rule mandates such a showing only when the petition is filed beyond the time for taking an appeal from the ruling.
To determine whether the circumstances warrant the appellate court's accepting a petition filed beyond the presumptively reasonable time established in this rule, the court should weigh factors such as the prejudice to the petitioner of the court's not accepting the petition and the prejudice to the opposing party of the court's accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.
This amendment also requires that the statement of the reason why the writ should issue include citations to the authorities and the statutes relied on.
The amendment to subsection (e)(4) replaces the reference to Rule 20, Temporary Alabama Rules of Criminal Procedure, with a reference to Rule 32, Alabama Rules of Criminal Procedure. The amendment also deletes the suggestion that contempt order and workers' compensation cases can be reviewed by certiorari. Review of contempt orders is by appeal. See Baker v. Heatherwood Homeowners Ass'n, 587 So. 2d 938 (Ala. 1991). Effective July 1, 1994, Rule 33, Alabama Rules or Criminal Procedure, was amended to apply only to contempts arising out of criminal cases. Contempts arising out of civil cases are governed by Rule 70A, Alabama Rules of Civil Procedure. Also, pursuant to Act No. 92-537, § 26, Ala. Acts 1992 (codified at § 25-5-81(e), Ala. Code 1975), review of workers' compensation cases by the Court of Civil Appeals is by appeal, rather than by certiorari.
Committee Comments to Rule 2l(f) Effective January 1, 2018
Rule 2l(f) states that the pendency of a petition for a writ of mandamus or prohibition or another extraordinary writ does not automatically stay proceedings in the trial court. Instead, a party must move for a stay that may be granted by the trial court or the appellate court in which the petition is filed.
Committee Comments to Amendment to Rule 21(a)(1) Effective April 1, 2020
The amendment adds the requirement that a petition include a statement of the case. This will aid the appellate court in determining the nature of the case and the procedural history of the litigation in the trial court leading up to the filing of the petition.
This amendment also clarifies that an appendix should have both a numbered cover sheet and a tab for each document. For paper copies, the tab should protrude from the side of the paper so that a reader may easily access the document under that tab. For electronic copies, each tab should be reflected as a "bookmark" so that the reader may click on the bookmark to access the document under that bookmark.
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