L.E.O. v. A.L.

• Decision Date: 12 November 2010
• Docket Number: 2080395.
• Citation: 61 So.3d 1058
• Parties: L.E.O. and P.O.v.A.L. and J.I.P.
• Court: Alabama Court of Civil Appeals

61 So.3d 1058

L.E.O. and P.O.

v.A.L. and J.I.P.

2080395.

Court of Civil Appeals of Alabama.

Nov. 12, 2010.

OPINION TEXT STARTS HEREAppeal from Madison Juvenile Court (JU–07–1751.01); Dennis E. O'Dell, Judge.

Joan-Marie Dean, Huntsville, for appellants.Christina L. Dixon, Huntsville, for appellees.

On Remand from the Alabama Supreme Court

MOORE, Judge.

This court's prior judgment has been reversed, and the cause remanded with instructions by the Supreme Court of Alabama. See Ex parte L.E.O., 61 So.3d 1042 (Ala.2010). On remand to this court, and in compliance with the supreme court's opinion, we hereby reverse the judgment of the juvenile court, remand the case to the juvenile court, and instruct that court to enter a finding that the child is dependent and to conduct further proceedings consistent with the opinion of the supreme court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.MOORE, J., concurs in the result, with writing.MOORE, Judge, concurring in the result.

Because this court is constrained to follow the decisions of the Alabama Supreme Court, see § 12–3–16, Ala.Code 1975, I agree that this court has no choice but to reverse the judgment of the Madison Juvenile Court (“the juvenile court”) and to remand the case to the juvenile court with instructions for that court to enter a judgment finding the child dependent and to conduct further proceedings consistent with the supreme court's opinion in Ex parte L.E.O., 61 So.3d 1042 (Ala.2010). However, I believe that the supreme court's opinion in Ex parte L.E.O. raises serious jurisdictional and due-process concerns that compel comment.

Before the creation of our present Unified Judicial System, the Supreme Court of Alabama could review and revise decisions of the Alabama Court of Appeals, “a court of final appellate jurisdiction,” Department of Industrial Relations v. Walker, 268 Ala. 507, 510, 109 So.2d 135, 138 (1959), only through a petition for a common-law writ of certiorari, see Works v. State, 278 Ala. 18, 19, 174 So.2d 697, 698 (1965).

“Certiorari at common law was an original writ issuing out of Chancery, or the King's Bench, directed in the King's name, to the agents or officers of inferior courts, commanding them to return the record of the cause pending before them, to the end that the party may have the more sure and speedy justice before him, or such other justice as he shall assign to determine the cause.”

Cushman v. Commissioner's Court of Blount County, 160 Ala. 227, 229–30, 49 So. 311, 312 (1909).

“The common-law writ of certiorari is one of the means by which the supervisory jurisdiction of superior tribunals is exercised over inferior [tribunals], reaching only to the jurisdiction of the subordinate tribunal and the regularity of its proceedings.... The office of the writ is to correct errors of law apparent on the face of the record.”

Felis & Co. v. Royal Harness & Saddlery Co., 170 Ala. 160, 162, 54 So. 504, 504 (1911); see also Ex parte Hennies, 33 Ala.App. 377, 379, 34 So.2d 22, 23 (1948) (“Certiorari at common law was an original writ issued out of a superior, to an inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority.”). “[T]he only matter to be determined is the quashing, or affirmation, of the proceedings brought up for review.” Jefferson County v. Berkshire Dev. Corp., 277 Ala. 170, 173, 168 So.2d 13, 16 (1964).

The supervisory jurisdiction of the supreme court on a petition for the common-law writ of certiorari was restricted “to an examination into the external validity of the proceeding had in the lower tribunal. It [could not] be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the case.” Alabama Elec. Coop., Inc. v. Alabama Power Co., 278 Ala. 123, 126, 176 So.2d 483, 485 (1964). When reviewing the decisions of the Court of Appeals, the supreme court generally considered the “record” to consist solely of the opinion expressed by the Court of Appeals. See Clayton v. Ragsdale, 276 Ala. 321, 322, 161 So.2d 804, 805 (1964). The supreme court ordinarily did not call up the trial-court record to ascertain the facts of the case, see Waldrop v. State, 223 Ala. 413, 413, 136 So. 736, 737 (1931); rather, it bound itself to the facts as stated by the Court of Appeals, preventing it from considering any evidence not cited by the Court of Appeals. Ragsdale, supra. Moreover, the supreme court reviewed only the published opinion of the Court of Appeals to determine if that court had acted without jurisdiction or had committed error in applying the law. See Fairbanks Morse & Co. v. Dees, 220 Ala. 41, 43, 126 So. 624, 625 (1929). If the Court of Appeals did not issue a published opinion, the petition would be denied because there would be “[n]othing being presented for review.” Lawson v. State, 219 Ala. 461, 461, 122 So. 467, 467 (1929); see also Rogers v. State, 223 Ala. 53, 53, 134 So. 813, 814 (1931); and Jones v. State, 225 Ala. 398, 398, 143 So. 837, 837 (1932). Likewise, if the Court of Appeals issued an opinion that did not address a particular legal issue, the supreme court could not review any question of law regarding that issue through a petition for a common-law writ of certiorari. See Cranford v. National Surety Corp., 231 Ala. 636, 637, 166 So. 721, 721–22 (1936); City of Birmingham v. Norwood, 220 Ala. 497, 499, 126 So. 619, 621 (1930); and La Rue v. Loveman, Joseph & Loeb, 220 Ala. 2, 3, 127 So. 241, 243 (1929).

Based on the foregoing limitations of review on a petition for the common-law writ of certiorari, the supreme court promulgated a rule that, in order to invoke the certiorari jurisdiction of the supreme court over the Court of Appeals, a petitioner had to file a brief pointing out the specific errors appearing on the face of the opinion of the Court of Appeals. Davenport–Harris Funeral Home, Inc. v. Chandler, 264 Ala. 623, 624, 88 So.2d 878, 879 (1956) (citing Rule 39, Ala. Rev. Rules of Court, Code 1940, Tit. 7, Appendix). The supreme court also held that, on certiorari review, the supreme court would consider only questions treated in the opinion of the Court of Appeals that were challenged in the petition and that were argued in the brief filed in support of the petition. Kelley v. Osborn, 269 Ala. 392, 392, 113 So.2d 192, 192 (1959).

In 1969, the legislature created the Alabama Court of Civil Appeals. Ala. Acts 1969, Act No. 987, p. 1744, § 3. Four years later, in 1973, the Judicial Article of the Constitution of Alabama of 1901 was amended to create the Unified Judicial System of the State of Alabama. Art. VI, § 149, Alabama Const. of 1901 (Off.Recomp.); see also City of Bessemer v. McClain, 957 So.2d 1061, 1091 (Ala.2006). That amendment vested the Alabama Court of Civil Appeals with appellate jurisdiction “under such terms and conditions as shall be provided by law and by rules of the supreme court.” Alabama Const. of 1901, Amend. No. 328, § 6.03(b) (now Art. VI, § 141(b), Alabama Const. of 1901 (Off.Recomp.)). The supreme court has since provided that appeals from judgments entered in juvenile dependency proceedings shall be to the Alabama Court of Civil Appeals if a record is properly certified as adequate for appellate review. See Rule 28(A)(1)(a) and (A)(2), Ala. R. Juv. P. Hence, today, the Alabama Court of Civil Appeals has final appellate jurisdiction over dependency judgments entered by juvenile courts.

The supreme court does not have appellate jurisdiction over the Court of Civil Appeals. See Jerome A. Hoffman, Alabama Appellate Courts: Jurisdiction in Civil Cases, 46 Ala. L.Rev. 843 (Spring 1995). The amended Judicial Article of the Constitution of Alabama of 1901 grants the Supreme Court of Alabama the power to issue such remedial writs or orders as may be necessary to give it general supervision and control of courts of inferior jurisdiction. Art. VI, § 140(b), Alabama Const. of 1901 (Off.Recomp.). The legislature has codified that constitutional power in § 12–2–7(3), Ala.Code 1975, in which it is provided that the supreme court shall have the authority “[t]o issue writs of injunction, habeas corpus, and such other remedial and original writs as are necessary to give to it a general superintendence and control of courts of inferior jurisdiction.” The “remedial writs” to which the Constitution and § 12–2–7(3) refer are those supervisory writs recognized by the common law of England. Ex parte Louisville & Nashville R.R., 176 Ala. 631, 662–75, 58 So. 315, 323–30 (1912) (Mayfield, J., concurring specially) (construing phrase “such other remedial and original writs,” when referring to power of supreme court to supervise and control court of appeals, as authorizing review by certiorari and other common-law writs); see also Ex parte Nice, 407 So.2d 874, 877 n. 2 (Ala.1981); and Hanvey v. Thompson, 286 Ala. 614, 617, 243 So.2d 748, 751 (1971). Thus, a party aggrieved by a judgment of the Alabama Court of Civil Appeals affirming a dependency judgment entered by a juvenile court may not seek review and revision of that judgment through an appeal to the Supreme Court of Alabama, Hoffman, supra at 867; he or she may seek review and revision of that judgment only via a petition for the common-law writ of certiorari, see Rule 39, Ala. R.App. P., the same revisory writ that was at one time applicable to judgments of the former Alabama Court of Appeals.

The basic nature of the common-law writ of certiorari as a vehicle for correcting external irregularities committed by an inferior court has not changed since the amendment to the Judicial Article. The Supreme Court of Alabama initially recognized that fact by reviewing decisions of the Court of Civil Appeals on a petition for the writ of certiorari as it had reviewed decisions of the Court of Appeals. See, e.g., Grant v. City of Mobile, 291 Ala. 458, 282...