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TIMELINESS OF FILING WRIT OF CERTIORARI SEEKING REVIEW OF PERSONNEL BOARD DECISION - EX PARTE MICHAEL KEY

Ex parte Michael Key, [Ms. 2160191, July 14, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this 3-2 per curiam opinion (Thomas, Moore, Donaldson, JJ., concur; Thompson, P.J., and Pittman, J., dissent), the court reverses a decision of the Jefferson County Personnel Board suspending a police officer for excessive use of force. The court concluded upon the merits that the officer's suspension was inconsistent with the Board's express factual finding that the officer's actions were necessary to restrain the inmate.

The officer challenged the Board's decision via a common law writ of certiorari filed 202 days after the decision suspending him. The court considered whether timeliness requirements of Rule 21(a)(3) of the Alabama Rules of Appellate Procedure apply to common law writs of certiorari. A sharply divided court concluded that the timeliness provisions do not apply because Rule 21(e)(4) provides:

"The term 'extraordinary writ' within the meaning of this rule encompasses the situation where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable. This rule does not apply to those cases where review in a court of appeals is normally had by way of an extraordinary writ. Such excluded cases include ... review of ... decisions of the Jefferson County Personnel Board. ..."

Ms. at *20, quoting Rule 21(e)(4), Ala. R. App. P. The court concluded that the filing was not untimely under the common law rule which provides:

[M]ere delay in filing a petition for a common law writ of certiorari is not a sufficient defense, Byars v. Town of Boaz, 229 Ala. 22, 155 So. 383 (1934). Such a petition should not be dismissed on grounds of delay unless the delay makes it unjust or unreasonable to grant the relief sought. Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902 (1948).

Ms. at *22.

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