Appeals court tosses Birmingham BOE lawsuit that seeks to block charter school

The Alabama Court of Civil Appeals on Friday ordered a judge to toss out the Birmingham Board of Education's lawsuit that seeks to block the opening of a charter school in the city.

Attorneys for the Birmingham Board of Education had not responded to a request for comment prior to publication of this story.According to its lawsuit filed in June against the Alabama Public Charter School Commission, the Birmingham BOE claims the commission improperly overruled its decision to deny a charter to STAR Academy. The lawsuit asked that a judge rule the commission violated the state's charter schools law and to prohibit STAR Academy from opening without first getting approval from the board of education.

Jefferson County Circuit Judge Jim Hughey III ruled in October that the Alabama Administrative Procedure Act (AAPA), which pertains to the appeal of state agency decisions, applied to the case and refused to dismiss the case at the request of the Commission.

But in its ruling today the appeals court stated that the Board of Education did not properly file under deadlines its appeals under the AAPABecause, under the act "'a circuit court can acquire appellate jurisdiction over a final state-agency decision only if the appellant initially filed a notice of appeal with the agency within 30 days of the appellant's receipt of the agency's final decision,'" and the respondent Board in this case did not do so, we agree with the Commission that the circuit court acted outside its discretion in denying the Commission's second motion to dismiss. Accordingly, the Commission's petition is granted, and the circuit court is directed to set aside its October 12, 2017, order and to enter a new order dismissing the Board's action."The appellate court summarized the deadlines and timeline in Friday's order:

The Board of Education filed its lawsuit on June 1 after commissioners in an oral statement had approved Star Academy's application. However, the commission didn't enter its final order until June 27, the appeals court noted in its ruling.

On July 12 "the Commission filed a motion to dismiss the Birmingham Board of Education's lawsuit  asserting, among other things, that the BOE's action was governed by the AAPA and that the Board had improperly sought judicial review while the cause was not ripe for such review, in which this court held that a circuit court does not acquire jurisdiction under the AAPA to review the actions of an administrative agency in the absence of a final, written order."

Judge Hughey in an order stated that the Board of Education had been served with notice of the Commission's final order on July 3, 2017; purported to extend the time for the Board to file a "proper petition" for judicial review under the AAPA until September 1, 2017; and ordered that the individual members of the Commission would be dismissed as parties.

The judge also ruled that after the board had filed an amended complaint on Sept. 1 that, among other things, expressly invoked the AAPA as a basis for relief, the Commission filed a second motion to dismiss in which the Commission relied upon the Board's failure to have filed a timely notice of appeal under the AAPA with the Commission.The Board responded in opposition to the Commission's motion, asserting that the Commission had had actual notice of the Board's intent to seek judicial review and that the Commission had itself been guilty in its appellate-review proceedings of omissions contrary to the requirements of the AAPA. On October 12, 2017, the circuit court entered an order denying the Commission's second motion to dismiss, after which the Commission timely filed its mandamus petition in this court.