Ex parte Jackson Hospital & Clinic, Inc. PETITION FOR WRIT OF MANDAMUS (In re: Theresa Johnson, individually and as of the Estate of Nathaniel Johnson v. Jackson Hospital & Clinic, Inc.) (Montgomery Circuit Court: CV-21-900980).

• Court: Supreme Court of Alabama
• Decided: October 4, 2024
• Docket: SC-2023-0601
• Status: Published

Opinion

Rel: October 4, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA SPECIAL TERM, 2024

_________________________

SC-2023-0601 _________________________

Ex parte Jackson Hospital & Clinic, Inc.

PETITION FOR WRIT OF MANDAMUS

(In re: Theresa Johnson, individually and as executor of the Estate of Nathaniel Johnson, deceased

v.

Jackson Hospital & Clinic, Inc.)

(Montgomery Circuit Court: CV-21-900980) SC-2023-0601

SHAW, Justice.1

Jackson Hospital & Clinic, Inc. ("Jackson Hospital"), has filed a

petition for a writ of mandamus, requesting that this Court direct the

Montgomery Circuit Court to enter a summary judgment in its favor in

the wrongful-death action commenced against it by Theresa Johnson

("Johnson"), individually and in her capacity as the executor of the estate

of her deceased husband, Nathaniel Johnson. For the reasons stated

below, we grant the petition.

Background

On March 13, 2020, Governor Kay Ivey issued a proclamation ("the

March 13 proclamation") stating that the State Health Officer had

reported "the appearance of the 2019 novel coronavirus known as

COVID-19 in the State of Alabama" and that the appearance of COVID-

19 indicated "the potential of widespread exposure to an infectious agent

that poses significant risk of substantial harm to a large number of

people." Therefore, under the Alabama Emergency Management Act of

1955 ("the AEMA"), § 31-9-1 et seq., Ala. Code 1975, Governor Ivey

1This case was originally assigned to another Justice on this Court;

it was reassigned to Justice Shaw. 2 SC-2023-0601

declared "that a state public health emergency" existed in Alabama.

Governor Ivey further found "that COVID-19 cases could overwhelm the

health care facilities and personnel of this State and undermine their

ability to deliver patient care in the traditional, normal, and customary

manner or using the traditional, normal, and customary standards of

care."

On May 8, 2020, Governor Ivey issued a supplemental proclamation

("the May 8 proclamation"). 2 The May 8 proclamation recognized that

"the health threat posed by COVID-19 is severe and potentially lethal to

many citizens of Alabama," that it was "necessary to promote and secure

the safety and protection of the civilian population by ensuring that

Alabama's health care providers have adequate protections and our

health care system has adequate capacity to provide health care," and

that "many aspects of this public health emergency remain uncertain and

new impacts and repercussions of COVID-19 are continually coming to

light." Thus, under the AEMA, Governor Ivey proclaimed "the existence

of conditions that warrant implementation of additional extraordinary

2The materials before us indicate that the May 8 proclamation was

the eighth supplement to the March 13 proclamation. 3 SC-2023-0601

measures and relief during the state health emergency now in effect in

order to guard public health and protect human life." The May 8

proclamation provided further "findings," including the following:

"… That COVID-19 cases have put, and will continue to put, a significant strain on the health care facilities, health care providers, and health care resources of this State and that COVID-19 cases have undermined, and will continue to undermine, the ability to deliver patient care or obtain certain equipment or materials in the traditional, normal, or customary manner;

"… That COVID-19 has affected, and will continue to affect, our health care system in unique and potentially devastating ways, and our health care facilities, health care professionals, and their supporting workers need protection to respond to this pandemic and to do what they can do to continue to provide treatment and services for the people of Alabama;

"….

"… That reasonable protections from the risk and expense of lawsuits … will encourage businesses to re-open and repair the damage to the economy of the State and the tax revenues of the State and of local governments; and

"… That providing such a safe harbor to businesses and healthcare providers that operate reasonably consistent with applicable public health guidance will help ameliorate the social harms of a closed economy and the spread of COVID- 19."

4 SC-2023-0601

The May 8 proclamation, as discussed in more detail below, further

provided certain legal-liability protections for health-care providers.

Subsequently, the legislature passed the Alabama Covid Immunity

Act ("the ACIA"), Act No. 21-4, Ala. Acts 2021, codified at § 6-5-790 et

seq., Ala. Code 1975. In § 6-5-790(2), Ala. Code 1975, the legislature

found and declared the following:

"[COVID-19] has put, and will continue to put, a significant strain on health care facilities, health care providers, and health care resources of this state; [COVID-19] has undermined, and will continue to undermine, the ability to deliver patient care in the traditional, normal, or customary manner; and our health care facilities, health care professionals, and their supporting workers need protection to respond to this pandemic and to do what they can do to continue to provide treatment and services for the people of Alabama."

The ACIA, as discussed in more detail below, thus provides to

health-care providers certain protections from liability when treating

COVID-19 patients. The ACIA became effective February 12, 2021,3 and

3According to a proclamation issued by Governor Ivey on December

11, 2020, "the COVID-19 pandemic severely curtailed the Legislature's 2020 regular session, causing the Legislature to miss nine -- or thirty percent -- of the thirty legislative days available for the consideration of legislation." Further, that proclamation stated that the "COVID-19 guidelines" issued by the United States Centers for Disease Control and Prevention and the Alabama Department of Public Health indicated that 5 SC-2023-0601

states that it applies retroactively to causes of action filed on or after

March 13, 2020. Ala. Acts 2021, Act No. 21-4, § 11. Further, § 6-5-799,

Ala. Code 1975, indicates that the ACIA "shall terminate December 31,

2021, or one year after a declared health emergency relating to [COVID-

19] expires, whichever is later." Finally, § 6-5-796, Ala. Code 1975, states

that the ACIA "shall be construed in pari materia with the [AEMA] and

with any emergency order or proclamation of the Governor relating to

[COVID-19] and immunity from civil lawsuits."

Facts and Procedural History

After the May 8 proclamation was issued, but before the effective

date of the ACIA, Nathaniel Johnson, who was suffering from COVID-

19, was admitted to Jackson Hospital's facility on November 26, 2020.

He was placed in a room on the sixth floor, which was a floor for COVID-

19 patients. At that time, Nathaniel was prescribed the use of a device

called a BiPAP, which provided pressurized air and oxygen to assist with

"it may not be safe or prudent at this time to call the Legislature into special session." In her amicus brief filed in this Court, Governor Ivey asserts that the proclamations she issued served as a "stopgap measure" and that the need for an "emergency provision of liability protections" ended when the legislature passed the ACIA. Governor Ivey's amicus brief at 9-10. 6 SC-2023-0601

breathing. The BiPAP device could be set to deliver certain levels of air

pressure and oxygen. Oxygen was provided to the BiPAP device from one

of two oxygen-supply outlets on the room's wall.

On December 6, 2020, a doctor ordered that Nathaniel be moved to

the third floor, where a special unit allowing patients to be more closely

monitored was located. To prevent the spread of COVID-19 to other

patients and staff, certain procedures were in place concerning how

COVID-19 patients were transferred between rooms. Specifically,

patients with COVID-19 could not be transferred while using a BiPAP

device because such devices lacked an "expiratory filter," meaning that

they expelled unfiltered air breathed out by the patient. Instead,

patients were transported using oxygen masks, which are also referred

to in the materials before us as "OxyMasks," that were covered with a

surgical mask. The facts before us indicate that a respiratory therapist

would disengage the BiPAP device and place on the patient the oxygen

mask, which used the second oxygen outlet that had a "flowmeter" to

regulate the amount of oxygen provided. The respiratory therapist would

set the correct oxygen level on the flowmeter. Jackson Hospital asserts

that, after the oxygen mask was placed, the respiratory therapist would

7 SC-2023-0601

take the BiPAP device and any other equipment to the patient's new

room so that it would be immediately ready when the patient arrived.

When the patient was to be moved, the patient's nurse would change the

oxygen mask's oxygen supply to a portable oxygen bottle.

Stephanie Sharpe, a respiratory therapist who had treated

Nathaniel, testified in a deposition that she had been tasked with

preparing him for transportation to the third floor. Sharpe stated that,

on her way to Nathaniel's sixth-floor room, she had asked another

respiratory therapist, Taylor King, to assist her. According to Sharpe,

while in Nathaniel's room, she had removed his BiPAP device and had

placed an oxygen mask on him. Sharpe indicated that she had set the

oxygen-supply outlet's flowmeter to "15 liters," referring to the amount of

oxygen provided. She further testified that she then had monitored

Nathaniel for a few minutes. Johnson, Nathaniel's wife, was present in

the room at the time.

Sharpe and Taylor then took the BiPAP device and other equipment

from the room, and the nurse outside the room said that she would get a

portable oxygen tank. Sharpe denied that a respiratory therapist was

8 SC-2023-0601

required to stay with a patient while a BiPAP device was being set up in

a patient's new room.

King, the other respiratory therapist present, also testified that

Sharpe, after removing the BiPAP device from Nathaniel, had "hooked

him up to a 15-liter OxyMask." King indicated that she could hear the

oxygen flow in the mask, stating: "[W]hen you turn it on, 15 liters on the

OxyMask, you can hear it." However, Johnson testified that Sharpe had

not placed an oxygen mask on Nathaniel after she had removed the

BiPAP device.

Both Sharpe and King testified that Nathaniel had experienced no

problems during this process. They took the BiPAP device and other

equipment to Nathaniel's new room on the third floor and set it up.

There, they heard a "code" announced calling an "ICE team" to

Nathaniel's room, meaning that nurses and respiratory therapists were

to respond because he was in distress. When Sharpe and King arrived at

the room, a team was attempting to revive Nathaniel, but he passed

away.

On September 9, 2021, Johnson, in her capacity as the executor of

Nathaniel's estate, commenced a wrongful-death action against Jackson

9 SC-2023-0601

Hospital. The complaint alleged that Jackson Hospital had breached the

standard of care required for a medical facility, that it had negligently or

wantonly caused Nathaniel's death, and that it had been negligent or

wanton in the hiring, supervision, and training of its employees. Johnson

also alleged a claim of loss of consortium. Stated generally, the complaint

alleged that Nathaniel had required supplemental oxygen but that,

during the process of moving him to another room, his

supplemental-oxygen supply had been removed, causing his death.

Jackson Hospital filed an answer to the complaint. Among other

things, Jackson Hospital contended that it was immune from liability.

After some discovery was conducted, it moved for a summary judgment.

The motion was supported by the affidavits of Sharpe, King, and Eric S.

Cunningham, a hospitalist employed by Jackson Hospital who was

apparently the chief of medicine at the time of Nathaniel's treatment and

death.

Jackson Hospital argued that it was entitled to immunity under

Ala. Code 1975, §§ 6-5-792 and -794, of the ACIA, under the May 8

proclamation, and under the AEMA. Jackson Hospital further argued

that its evidence demonstrated that its staff had immediately placed an

10 SC-2023-0601

oxygen mask on Nathaniel to provide supplemental oxygen after the

BiPAP device had been removed and that, at no point during the attempt

to transfer him to another room, had he been denied supplemental

oxygen.

The procedural history that followed is complex and, for purposes

of this opinion, need not be discussed in detail. Instead, it is sufficient to

note that Johnson filed a motion pursuant to Rule 56(f), Ala. R. Civ. P.,

to seek additional discovery before responding to Jackson Hospital's

motion for a summary judgment. Subsequently, the trial court held a

hearing on that motion. Jackson Hospital argued that it was immune

under the ACIA and pursuant to the powers granted to the governor

under the AEMA. Johnson argued, however, that there was an exception

for wanton conduct, that Jackson Hospital had not followed its

alternative standard of care, and that she was entitled to more discovery

to oppose Jackson Hospital's motion. After the hearing, the trial court

entered a summary judgment in favor of Jackson Hospital.

Johnson filed a motion under Rule 59(e), Ala. R. Civ. P., to alter,

amend, or vacate that judgment. The motion was supported by Johnson's

affidavit. In that affidavit, Johnson indicated that, at the time of

11 SC-2023-0601

Nathaniel's death, she had been employed as a "patient care technician"

for Jackson Hospital and had been in the room when Nathaniel's BiPAP

device was removed. According to her, no respiratory therapist had

placed an oxygen mask on Nathaniel after the BiPAP device was

removed. After the respiratory therapists had left the room, Johnson

stated, Nathaniel had struggled and had been unable to catch his breath.

Johnson argued in her Rule 59(e) motion that there was a factual

dispute as to whether Jackson Hospital's conduct was wanton, that

claims of wanton conduct were exempted from the ACIA under § 6-5-793,

Ala. Code 1975, and that that Code section further provided an exception

to immunity if Jackson Hospital did not reasonably attempt to comply

with the then applicable public-health guidance. According to Johnson's

affidavit, in December 2020, Jackson Hospital's policy, as well as the then

applicable public-health guidance, was:

"for respiratory therapists to accompany BiPap patients while they are off the BiPap machine and be standing by with, at a minimum, a 'crash cart' and AMBU Self Inflating Resuscitator so that in the event of an oxygen insufficiency a patient could be manually resuscitated. The patient was also supposed to be evaluated beforehand to determine if they could withstand the time off the BiPap machine."

12 SC-2023-0601

Johnson concluded her affidavit by stating that, to her knowledge, "none

of these guidelines were complied with in my husband's case." Finally,

the Rule 59(e) motion requested that Johnson be able to depose Jackson

Hospital's witnesses, as requested in her previously filed Rule 56(f)

motion.

The trial court ultimately set aside its summary judgment to allow

Johnson to take the depositions of Sharpe, King, and Cunningham.

Those depositions subsequently took place.

In further filings by the parties, argument continued as to whether

Jackson Hospital's motion for a summary judgment should be granted.

Johnson argued that Jackson Hospital had no immunity under the May

8 proclamation. Specifically, she argued that the AEMA did not provide

authority to the governor to alter substantive tort law or to provide

immunity from tort actions. Further, she said, any attempt by Governor

Ivey to do so violated Ala. Const. 2022, Art. I, § 21, which, she argued,

allowed only the legislature to suspend law, and further violated the

separation-of-powers doctrine provided by Ala. Const. 2022, Art. III, §

13 SC-2023-0601

42. 4 Further, Johnson claimed that because the ACIA had been enacted

after her cause of action had vested, its application to her action was

barred by Ala. Const. 2022, Art. I, § 13, which, she argued, prohibited the

retroactive abrogation of a vested cause of action. Finally, she argued

that she had presented sufficient evidence, through her affidavit and the

depositions of Sharpe, King, and Cunningham, demonstrating wanton

conduct and the failure of Jackson Hospital to follow public-health

guidance, which conduct and failure, she claimed, excepted Jackson

Hospital from immunity under § 6-5-793 of the ACIA.

Jackson Hospital, on the other hand, argued that, because it had

been provided immunity by the May 8 proclamation, which had been

issued before Nathaniel's treatment and death, Johnson did not have a

"vested right of action" against it for purposes of § 13. Further, it

contended, the issuance of the May 8 proclamation had been within the

powers provided to the governor by the AEMA and that proclamation had

4The Alabama Constitution of 2022 was ratified in 2022 and succeeds the Alabama Constitution of 1901. Although, in the materials before us, both constitutions are cited, we cite the Alabama Constitution of 2022. As to the content of the provisions discussed, there is no material difference between the two constitutions, except that § 43 of the 1901 constitution is now found in § 42(c) of the 2022 constitution. 14 SC-2023-0601

not violated Alabama's constitution and had subsequently been endorsed

by the legislature in the ACIA. It also argued that the evidence before

the trial court established that the actions of Jackson Hospital's

employees had not been wanton.

Governor Ivey filed an amicus brief in the trial court in support of

Jackson Hospital's motion for a summary judgment, providing argument

and authority to demonstrate that the May 8 proclamation complied with

the AEMA and was constitutional. The Business Council of Alabama,

the Alabama Civil Justice Reform Committee, and the Alabama Hospital

Association also provided a joint amicus brief arguing that the

application of the ACIA in this case would not be unconstitutional.

Ultimately, the trial court issued an order denying Jackson

Hospital's motion for a summary judgment. The trial court's rationale

was narrow. As discussed further below, it held that Johnson's action

could proceed under § 6-5-793, which it described as providing an

"exception" to the immunity provided by the ACIA. Although it

acknowledged that Johnson had challenged the constitutionality of the

ACIA and had cited exceptions to it, the trial court declined to rule on

"the constitutional issues or wantonness exception."

15 SC-2023-0601

Jackson Hospital filed a motion to vacate or to clarify the trial

court's order denying its motion for a summary judgment, which was

supported by, among other things, an affidavit of Regan Sullivan, a

respiratory therapist who was Jackson Hospital's Director of Respiratory

Care and was Sharpe and King's supervisor. According to Sullivan, there

had been no policy in place at the time of Nathaniel's death that required

a respiratory therapist to be physically present when a patient was being

transported from one room to another. She stated that there was no

medical necessity for a respiratory therapist's presence in those

circumstances because nurses were trained to respond to any medical

emergency that could occur. She indicated that, instead, when a patient

was transported, the role of a respiratory therapist was merely to retrieve

equipment from the patient's room and transport it to the new room.

This, she said, allowed the patient to be immediately placed on the

equipment in the new room. 5

Jackson Hospital then filed with this Court a petition for a writ of

mandamus, requesting that this Court direct the trial court to enter a

5The materials before us do not reveal whether the trial court ruled

on Jackson Hospital's motion to vacate or to clarify the order denying its summary-judgment motion. 16 SC-2023-0601

summary judgment in its favor in Johnson's action. This Court ordered

an answer and briefs. After oral argument, the case was submitted to

the Court.

Standard of Review

"While the general rule is that denial of a summary-judgment motion is not immediately reviewable by an appellate court, the exception to the general rule is that a denial of a motion for a summary judgment grounded on a claim of immunity is immediately reviewable by a petition for a writ of mandamus ...."

Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002). A writ of mandamus is

"appropriate when the petitioner can show (1) a clear legal right to the

order sought; (2) an imperative duty upon the respondent to perform,

accompanied by a refusal to do so; (3) the lack of another adequate

remedy; and (4) the properly invoked jurisdiction of the court." Ex parte

BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).

Discussion

A.

In its mandamus petition, Jackson Hospital addresses the issue

presented by the trial court's narrow ruling: whether § 6-5-793 allows

Johnson's action to proceed despite the immunity provided by other

provisions of the ACIA. 17 SC-2023-0601

Stated generally, the ACIA provides, in pertinent part, broad

immunity to health-care providers from negligence actions stemming

from medical care provided in relation to the COVID-19 pandemic.

Section 6-5-792 provides, in part:

"(a) Notwithstanding any other provision of law, a covered entity shall not be liable for any damages, injury, or death suffered by any person or entity as a result of, or in connection with, a health emergency claim that results from any act or omission of the covered entity.

"(b) Subsection (a) does not apply if the claimant proves by clear and convincing evidence that the covered entity caused the damages, injury, or death by acting with wanton, reckless, willful, or intentional misconduct."

A "covered entity" is defined as, among other things, a "health care

provider." § 6-5-791(a)(5), Ala. Code 1975. A "health emergency claim" is

defined, in part, as "[a]ny claim that arises from or is related to

Coronavirus." § 6-5-791(a)(13). See also § 6-5-791(a)(4) (identifying

"Coronavirus" as "Coronavirus disease 2019, commonly abbreviated as

'COVID-19' "). Thus, under § 6-5-792, a health-care provider is not liable

for any damages, injury, or death suffered "as a result of, or in connection

with," a "claim that arises from or is related to" COVID-19, unless

subsection (b) applies, which allows liability when the claimant can show

18 SC-2023-0601

by clear and convincing evidence that a health-care provider acted "with

wanton, reckless, willful, or intentional misconduct."6 In other words, for

purposes of this case, a health-care provider is immune in a negligence

action related to the treatment of a COVID-19 patient.

Section 6-5-794(a) also provides a potentially overlapping form of

immunity. It states, in pertinent part:

"Absent wanton, reckless, willful, or intentional misconduct, a health care provider is not liable for any damages, injury, or death alleged to have been caused by an act or omission of the health care provider during the performance or provision of health care services or treatment that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the Coronavirus pandemic or the state's response to the pandemic."

(Emphasis added.) As pertinent to this case, that Code section provides

immunity from negligence actions related to a health-care provider's acts

or omissions in the provision of care or treatment that resulted from, or

was in response to, COVID-19.

6Subsections 6-5-792(c)-(d) further provide limitations on the damages recoverable in an action allowed by subsection (b) or in a wrongful-death action. 19 SC-2023-0601

In this case, there is no dispute that Jackson Hospital is a

health-care provider and that its medical treatment and care of

Nathaniel was related to COVID-19. Under the plain language of §§ 6-

5-792 and -794, Jackson Hospital would be immune from Johnson's

negligence claims.

B.

The trial court, in its order denying Jackson Hospital's summary-

judgment motion, did not address whether Jackson Hospital was immune

under §§ 6-5-792 and -794. Instead, as noted above, it held that Johnson's

action could proceed under § 6-5-793. That Code section states, in

pertinent part:

"(a) This section applies to both of the following causes of action that accrue before the effective date of [the ACIA]:

"(1) A health emergency claim [that is, any claim that arises from or is related to COVID-19,] for which a court holds that neither Section 6-5- 792 nor the liability limiting provisions of any gubernatorial emergency order applies.

"(2) Any cause of action relating to an act or omission of the health care provider during the performance or provision of health care services or treatment that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the 20 SC-2023-0601

Coronavirus pandemic or the state's response to the pandemic, for which a court holds that neither Section 6-5-794 nor the liability limiting provisions of any gubernatorial emergency order applies.

"(b) For any health emergency claim or cause of action under subsection (a), the following provisions shall apply:

"(1) Notwithstanding any other provision of law, as a matter of law, a covered entity shall not be liable for negligence, premises liability, or for any non-wanton, non-willful, or non-intentional civil cause of action to which this section applies, unless the claimant shows by clear and convincing evidence that the covered entity did not reasonably attempt to comply with the then applicable public health guidance.[7]"

The trial court held that Johnson's action could proceed according

to the terms of subsection (b)(1). Specifically, it found that Jackson

Hospital's employees were following an "alternate standard of care" in

transporting Nathaniel. According to the trial court, Cunningham

testified in his deposition that, under this alternate standard of care,

when BiPAP devices were removed, respiratory therapists would

accompany patients along with the nurse to transport them if they were

7Subsections 6-5-793(b)(2)-(3) further provide limitations on the damages available for an action permitted under that Code section. 21 SC-2023-0601

moving from one floor to another. However, the evidence indicated that

both respiratory therapists had left Nathaniel for the nurse alone to move

him and had not been present to accompany him during the

transportation. Emphasizing § 6-5-793(b)(1), the trial court held that

King and Sharpe "did not follow either the then applicable public health

guidance or Jackson Hospital's alternate standard of care." The trial

court thus held that Johnson had "proven an exception to ACIA immunity

by showing that Jackson Hospital's respiratory therapists did not

reasonably attempt to comply with then applicable public health

guidance or Jackson Hospital's alternative standard of care."

As Jackson Hospital notes in its petition, under § 6-5-793(a)(1)-(2),

§ 6-5-793 applies to actions when a court "holds" that neither § 6-5-792,

nor § 6-5-794, nor any gubernatorial emergency order applies. Only then

does § 6-5-793(b)(1) provide that the action may proceed if "the claimant

shows by clear and convincing evidence that the covered entity did not

reasonably attempt to comply with the then applicable public health

guidance." Section 6-5-793(b) is not an exception to the other provisions

of the ACIA; instead, it covers actions when § 6-5-792, § 6-5-794, and a

gubernatorial emergency order do not apply.

22 SC-2023-0601

As demonstrated above, the plain language of §§ 6-5-792 and -794,

and, as discussed below, the May 8 proclamation, would apply to

Johnson's action; thus, § 6-5-793, by its own terms, would not apply.

Given the arguments made to the trial court, the only way that it could

have determined that §§ 6-5-792 and -794 (and the May 8 proclamation)

did not control would be if those were, as Johnson argued,

unconstitutional as applied in her case or if the exceptions for

wantonness claims applied. However, the trial court explicitly held that

it did not "rule on the constitutional issues." Further, the trial court

refused to address whether Johnson's action could proceed under a

"wantonness exception." Jackson Hospital's petition thus demonstrates

that the trial court's rationale for denying the motion for a summary

judgment under the authority of § 6-5-793 was erroneous.

C.

In her answer to Jackson Hospital's petition, Johnson argues, as an

alternate basis to deny the petition, that, under Alabama's Constitution,

the ACIA cannot bar her action. As noted above, the trial court refused

to address this issue, and Johnson's constitutional challenge to the ACIA

did not form a basis for its decision. However, this Court may deny a

23 SC-2023-0601

mandamus petition for any valid legal ground, even if that ground was

not considered by the trial court. See Liberty Nat'l Life Ins. Co. v.

University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020

(Ala. 2003) ("[T]his Court will affirm the trial court on any valid legal

ground presented by the record, regardless of whether that ground was

considered, or even if it was rejected, by the trial court."), and Ex parte

Moulton, 116 So. 3d 1119, 1133-34 (Ala. 2013) (applying the principle

stated in Liberty National in the context of a mandamus petition).

Johnson argues that the retroactive application of the ACIA to her

claims violates § 13 of the Alabama Constitution, which, she argues,

"prevents the legislature from removing [a] remedy after accrual of a

cause of action." Answer at 15. Section 13 provides: "That all courts shall

be open; and that every person, for any injury done him, in his lands,

goods, person, or reputation, shall have a remedy by due process of law;

and right and justice shall be administered without sale, denial, or

delay." This Court has explained the operation of § 13 as follows: "[T]he

right to the remedy must remain and cannot be curtailed after the injury

has occurred and right of action vested, regardless of the source of the

duty which was breached, provided it remained in existence when the

24 SC-2023-0601

breach occurred." Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261,

264 (1939). See also Kruszewski v. Liberty Mut. Ins. Co., 653 So. 2d 935,

937 (Ala. 1995) ("[Section] 13 of the Alabama Constitution applies only

in instances where a litigant has a vested interest in a particular cause

of action. Existing duties are not preserved against legislative change

made before a breach of duty occurs.").8 In response to Johnson's

argument, Jackson Hospital contends, as it did in the trial court, that

Johnson had no right to a cause of action when the ACIA became effective

after Nathaniel's death because Jackson Hospital had already been

immunized from such action under the May 8 proclamation, which was

issued before Nathaniel died and before any action against it based on

his death would have accrued and vested.

The May 8 proclamation was issued by Governor Ivey under powers

provided by the AEMA. Under Ala. Code 1975, § 31-9-8(a), of the AEMA,

the governor may proclaim a "state of emergency" related to a "public

8This Court, in analyzing whether one has been deprived of a remedy in violation § 13, has utilized two approaches, the "vested rights approach" exemplified in Pickett and discussed in Kruszewski, supra, and the later-developed "common-law rights approach." See generally Reed v. Brunson, 527 So. 2d 102 (Ala. 1988) (discussing the history of both approaches). The parties in this case utilize the "vested rights approach," and we so limit our own analysis. 25 SC-2023-0601

health emergency." See Ala. Code 1975, § 31-9-3(4) (defining a "state of

emergency" as, among other things, "the existence of conditions of

disaster or of extreme peril to the safety of persons and property within

the state caused by ... epidemic ...."), and § 31-9-3(5) (defining a "state

public health emergency," in part, as "an occurrence or imminent threat

of an illness or health condition"). Such a state of emergency terminates

within 60 days unless it is extended by further proclamation. § 31-9-8(a).

During that period, the governor has the power to enforce "all laws, rules,

and regulations relating to emergency management." § 31-9-8(a)(1).

Further, the governor has the "additional" emergency power "[t]o perform

and exercise such other functions, powers and duties as are necessary to

promote and secure the safety and protection of the civilian population."

§ 31-9-8(a)(5) (emphasis added). In performing duties under the AEMA,

the governor is also authorized and empowered to "make, amend, and

rescind the necessary orders, rules, and regulations to carry out the

provisions of [the AEMA] within the limits of the authority conferred

upon him or her" by the AEMA. § 31-9-6(1), Ala. Code 1975 (emphasis

added). "All orders, rules, and regulations promulgated by the Governor

… shall have the full force and effect of law," and "[a]ll existing laws,

26 SC-2023-0601

ordinances, rules, and regulations or parts thereof inconsistent with the

provisions of [the AEMA] or of any order, rule, or regulation issued under

the authority of [the AEMA]" are "suspended during the period of time

and to the extent that such inconsistency exists." § 31-9-13, Ala. Code

1975 (emphasis added).

Jackson Hospital contends that the May 8 proclamation "is exactly

the kind of emergency order authorized" by the AEMA and that Governor

Ivey acted "to reduce the risk of a flood of pandemic-related litigation

aimed at healthcare providers … operating under extraordinary

conditions." Jackson Hospital's reply brief at 9. Under the title "liability

protections," that proclamation states:

"A business, health care provider, or other covered entity shall not be liable for the death or injury to persons or for damage to property in any way arising from any act or omission related to, or in connection with, COVID-19 transmission or a covered COVID-19 response activity, unless a claimant shows by clear and convincing evidence that the claimant's alleged death, injury, or damage was caused by the business, health care provider, or other covered entity's wanton, reckless, willful, or intentional misconduct."

A "COVID-19 response activity" is defined by the May 8 proclamation as,

among other things: "Any performance or provision of health care

services or treatment by a health care provider that resulted from, was

27 SC-2023-0601

negatively affected by, was negatively impacted by a lack of resources

caused by, or was done in response to the COVID-19 pandemic or the

State's response thereto." The May 8 proclamation further describes

itself as providing "immunity."

As with the discussion of §§ 6-5-792 and -794 above, there is no

dispute that Jackson Hospital is a health-care provider and that its

treatment of Nathaniel was related to COVID-19. Thus, under the May

8 proclamation, Jackson Hospital would not be liable for negligent

conduct that allegedly caused Nathaniel's death.

However, Johnson challenges whether the May 8 proclamation

exceeded the powers conferred to the governor by the AEMA and further

violates the Alabama Constitution. Johnson first argues that none of the

specific powers conferred by § 31-9-6 and § 31-9-8 authorize the governor

to change substantive tort law. We disagree. As noted above, the AEMA

allows the governor, during a state of emergency, "[to] perform and

exercise such other functions, powers and duties as are necessary to

promote and secure the safety and protection of the civilian population."

28 SC-2023-0601

§ 31-9-8(a)(5). 9 In performing duties under the AEMA, "the Governor is

authorized and empowered ... [t]o make … the necessary orders, rules,

and regulations to carry out " the AEMA. § 31-9-6(1). Moreover, § 31-9-

13 makes clear that the "orders, rules, and regulations" issued by the

governor suspend "[a]ll existing laws" that are in conflict. The AEMA

contains no limitation proscribing the governor from providing immunity

to certain tort actions.

Johnson also contends that, in altering tort law and providing

health-care providers with immunity, Governor Ivey violated the

separation-of-powers doctrine provided in Ala. Const. 2022, Art. III, §

42(c), which provides:

"To the end that the government of the State of Alabama may be a government of laws and not of individuals, and except as expressly directed or permitted in this constitution, the legislative branch may not exercise the executive or judicial power, the executive branch may not exercise the legislative or judicial power, and the judicial branch may not exercise the legislative or executive power."

Johnson also argues that Governor Ivey violated Ala. Const. 2022, Art. I,

§ 21, which states: "That no power of suspending laws shall be exercised

9The language of § 31-9-8(a)(5) is specifically referenced in the May

8 proclamation.

29 SC-2023-0601

except by the legislature." In support of these arguments, she cites

Hawkins v. James, 411 So. 2d 115, 119 (Ala. 1982), and Opinion of the

Justices No. 238, 345 So. 2d 1354, 1355 (Ala. 1977).

In Hawkins, a state employee challenged an executive

memorandum issued by the governor directing State department heads

to not recommend a waiver for employees who wanted to work past the

then compulsory retirement age of 70. 411 So. 2d at 117. This, it was

alleged, was inconsistent with a then-existing statute. Id. Finding that

the governor's memorandum had "the effect of altering the process"

provided in the statute, this Court held that it had "the effect of an

exercise of legislative power," which violated what is now § 42(c) of the

Alabama Constitution. 411 So. 2d at 119.

In Opinion of the Justices No. 238, the governor requested an

advisory opinion as to whether a proposed bill was constitutional. 345

So. 2d at 1355. That bill would have allowed the governor to freeze or

roll back utility rates set by the Public Service Commission " 'when in his

considered opinion extraordinary action in the matter of utility rates is

called for ….' " Id. Noting that the power to fix utility rates "lies with the

legislature … or … in its duly constituted agency, such as the Public

30 SC-2023-0601

Service Commission," and that the governor "cannot be an agency of the

Legislature under the separation of powers provisions of our

Constitution," the Justices concluded, among other things, that the

proposed bill would violate the separation-of-powers doctrine. 345 So. 2d

at 1156.

The Justices further indicated that the proposed bill violated § 21.

Specifically, the Justices determined that, because the legislature had

provided by statute that the utility rates established by the Public

Service Commission had the "force of law" and thus "the character of

law," the power to change those rates amounted to "the power to suspend

law," which power, under § 21, was "reposed within the legislature itself."

345 So. 2d at 1357. The Justices concluded: "The power to suspend

having been vested exclusively in the legislature by the Constitution, a

fortiori it could not be delegated to the Governor in view of Section [42]

of our Constitution." Id. (citing Montgomery v. State, 231 Ala. 1, 163 So.

365 (1935)).

Jackson Hospital argues, however, that the May 8 proclamation did

not violate either the separation-of-powers doctrine set out in § 42(c) or §

21 because, in effect, the legislature itself, acting through the AEMA,

31 SC-2023-0601

imposed the limitations on liability found in the proclamation.

Specifically, the legislature, in § 31-9-13, declared that "laws" that are

inconsistent with the governor's orders would automatically be

suspended. Thus, Jackson Hospital contends, Governor Ivey neither

suspended any law nor exercised legislative power contrary to the

separation of powers. Hawkins, it argues, is distinguishable because, in

that case, the governor was not acting in accord with legislative

authorization. Here, Jackson Hospital asserts, the May 8 proclamation

was issued in accord with the authority provided by the legislature under

the AEMA. According to Jackson Hospital, the decision in Opinion of the

Justices No. 238 is also distinguishable because, in that matter, the

proposed bill gave the governor unlimited discretionary power. It points

out that, in this case, the authority granted the governor by the AEMA is

limited and could be used only under certain circumstances and, that in

any event, Governor Ivey's actions were subsequently ratified by the

legislature itself. 10

10We further note that "advisory opinions" such as Opinion of the

Justices No. 238 "are not binding on this Court." Burnett v. Chilton Cnty. Health Care Auth., 278 So. 3d 1220, 1230 (Ala. 2018).

32 SC-2023-0601

In this case, as noted above, the placement of limitations on liability

found in the May 8 proclamation was authorized by the legislature in the

AEMA. Specifically, express legislation grants the governor power to

make certain orders, rules, and regulations. § 31-9-6(1). This can occur

only in limited circumstances -- when there is a determination that a

state of emergency exists, which itself is limited in time and by the scope

of the AEMA. § 31-9-8(a). The "functions, powers and duties" exercised

under § 31-9-8(a)(5) must be "necessary to promote and secure the safety

and protection of the civilian population," and the orders, rules, and

regulations proclaimed under § 31-9-6(1) must be those "necessary" to

carry out the provisions of the AEMA. 11 (Emphasis added.) Further, the

legislature expressly stated that, in the event the governor must issue

orders, rules, and regulations to meet the emergency, they have the full

force and effect of law if they are contrary to existing law. § 31-9-13. The

legislature, through the AEMA, did not grant the governor carte blanche

or unlimited power, and "the doctrine of separation of powers does not

prohibit the Legislature's delegating the power to execute and administer

11There is no challenge as to whether the liability limitations for

health-care providers found in the May 8 proclamation were "necessary." 33 SC-2023-0601

the laws, so long as the delegation carries reasonably clear standards

governing the execution and administration." Folsom v. Wynn, 631 So.

2d 890, 894 (Ala. 1993). Importantly, the legislature has, by the ACIA,

ratified and adopted Governor Ivey's actions. Finally, the limitations of

liability found in the May 8 proclamation did not suspend a statute

enacted by the legislature; instead, it modified and limited the principles

of liability governing an action against a health-care provider.

Section 42(c) states that the purpose of the separation of powers

between the legislative, executive, and judicial departments is to ensure

"that the government of the State of Alabama may be a government of

laws and not of individuals." It "condemns the usurpation of the power

of one branch of government by the other," Ex parte Thicklin, 824 So. 2d

723, 732 (Ala. 2002), and has been described as a "restriction ... on the

ability of" one branch of government "to invade the discretion and power

vested in" another branch. State v. Greenetrack, Inc., 154 So. 3d 940,

957 (Ala. 2014).

The legislature, in the AEMA, has granted to the governor certain

powers that are limited in scope, application, and time and that the

legislature directed would temporarily suspend any law to the contrary.

34 SC-2023-0601

In the unusual circumstances of the COVID-19 pandemic, during which,

for all that appears, the legislature itself could not meet to address the

emergency, see note 3, supra, Governor Ivey, after finding that a need

existed, exercised the powers granted by the legislature to partially limit

the liability of health-care providers not by suspending legislation, but

by limiting common-law standards of liability. The governor was not

invading the power of the legislature; instead, the legislature itself

provided certain powers to the governor in limited circumstances, the

legislature declared the effect of the exercise of those powers, the

governor used those powers in accordance with the legislature's

directives, and the legislature accepted, adopted, and ratified those acts.

We cannot say, under the facts of this case, that Governor Ivey "usurped"

or "invaded" the power of the legislature to the detriment of the rule of

law; thus, no violation of the doctrine of the separation of powers

occurred.

We also conclude that there was no violation of § 21 under the facts

of this case. In Opinion of the Justices No. 238, the proposed bill

expressly delegated power to the governor, in his discretion, to adjust

utility rates, which power had been vested in the Public Service

35 SC-2023-0601

Commission. We equated that power with the power to suspend laws and

held that the delegation of such power, which is vested in the legislature

by § 21, violated the separation of powers. 345 So. 2d at 1156 (holding

that the prohibition on the delegation of suspension powers is grounded

in the separation of powers found in what is now § 42(c)), and Mistretta

v. United States, 488 U.S. 361, 371 (1989) ("The nondelegation doctrine

is rooted in the principle of separation of powers that underlies our

tripartite system of Government.").

The legislature has declared in the AEMA that certain laws are

suspended under a certain contingency. § 31-9-13. Such suspension is

limited in time, and such contingency is defined, regulated, and restricted

by the AEMA. In this case, the contingency came into existence, that is,

Governor Ivey found and declared an emergency and issued an order --

the May 8 proclamation -- to address the emergency under the strictures

of the AEMA. That order conflicted with certain existing laws, but the

legislature had preemptively declared, by § 31-9-13, that those contrary

laws were temporarily suspended. In these circumstances, any

suspension of the law that occurred as a result of the governor's order

was effected by the legislature, not the governor. In other words,

36 SC-2023-0601

contrary to the Chief Justice's dissent, the legislature, by its express

enactments and words, suspended all law contrary to the governor's

order. Governor Ivey did not exercise any suspension powers, and we see

no delegation of powers in violation of the separation-of-powers doctrine.

Jackson Hospital was immune under the May 8 proclamation from

Johnson's negligence claims. As a consequence, the immunity provided

by the ACIA -- specifically, by §§ 6-5-792 and -794, which were enacted

after Nathaniel's death and after Johnson's cause of action accrued --

does not impermissibly abrogate Johnson's negligence claims for

purposes of § 13. Instead, those claims were already barred when the

ACIA was enacted; thus, there was no "vested interest" in a cause of

action on those claims. Kruszewski, 653 So. 2d at 937; see also Pickett,

238 Ala. at 545, 192 So. at 264. In light of the above, Jackson Hospital

has demonstrated a clear legal right under §§ 6-5-792 and -794 to a

summary judgment on those claims.

D.

Jackson Hospital also challenges whether Johnson, in response to

the motion for a summary judgment, provided sufficient evidence to

demonstrate wanton conduct. As noted above, claims of wanton conduct

37 SC-2023-0601

are excepted from the immunity provided under the ACIA and the May

This Court, on mandamus review, can determine whether a party,

in response to a motion for a summary judgment grounded in immunity,

presented substantial evidence of an exception to that immunity. Ex

parte City of Muscle Shoals, 257 So. 3d 850, 855-58 (Ala. 2018) (reviewing

whether the plaintiff presented substantial evidence of an exception to

immunity), and Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala.

2006) (holding that the plaintiff failed to present substantial evidence

that an exception to State-agent immunity existed; thus, a writ of

mandamus was issued to direct the trial court to enter a summary

judgment in favor of the defendant).

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the 38 SC-2023-0601

existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence is evidence of such weight and quality that fair- minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).

Further, " '[w]hen the law imposes the higher burden of proof of clear and

convincing evidence as to a particular claim or factual issue, the

nonmovant must present evidence at the summary-judgment stage that

would qualify as clear and convincing evidence if accepted and believed

by the fact-finder.' " Ledbetter v. Ledbetter, 323 So. 3d 1210, 1213 (Ala.

2020) (quoting Phillips v. Asplundh Tree Expert Co., 34 So. 3d 1260, 1266

(Ala. Civ. App. 2007)).

This Court has defined "wantonness" as "the conscious doing of

some act or the omission of some duty while knowing of the existing

conditions and being conscious that, from doing or omitting to do an act,

injury will likely or probably result." Ex parte Essary, 992 So. 2d 5, 9

(Ala. 2007). See also Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817

So. 2d 665, 679-80 (Ala. 2001). Jackson Hospital recounts the testimony

discussed above of the respiratory therapists, Sharpe and King, 39 SC-2023-0601

regarding the process that occurred when Nathaniel was to be

transferred to another room. They disconnected Nathaniel from the

BiPAP device, supplied him with supplemental oxygen through an

oxygen mask, monitored his condition, and noted no problems with the

process. As it did in its motion for a summary judgment, Jackson

Hospital argues that there is no evidence of conduct rising to the level of

wantonness. Reviewing the evidence de novo, as the standard of review

requires, we agree. Jackson Hospital's motion for a summary judgment

thus shifted the burden to Johnson to establish a genuine issue of

material fact. Dow, supra.

Johnson, in her answer, contends that the testimony in her affidavit

shows that the respiratory therapists did not reconnect an oxygen supply

after Nathaniel was removed from the BiPAP device. She further cites

to deposition testimony of Sharpe and King that, Johnson argues,

indicates "that they knew that death could result when a patient who is

on supplemental oxygen … had his oxygen removed and was left on room

air." Answer at 20.

King testified in her deposition as follows:

"[Johnson's counsel:] [… If patients are] on a percentage [of oxygen] on the BiPAP and you're removing it and don't 40 SC-2023-0601

replace it with any other type of supplemental oxygen, have you ever done that?

"[King:] Not if they had oxygen on the BiPAP.

"[Johnson's counsel:] And why not?

"[King:] Because they would need that oxygen.

"[Johnson's counsel:] And if they didn't get it, what could happen?

"[King:] Their PaO2 would drop. They could get hypoxic.

"[Johnson's counsel:] And could probably die?

"[King:] Possibly."

(Emphasis added.)

Sharpe, the other respiratory therapist, testified:

"[Johnson's counsel:] … I'm just asking you generally. If someone was on a BiPAP and had it removed and was just on room air, is there a risk that their oxygen saturations would drop to a fatal level?

"[Sharpe:] You would never remove a patient from a BiPAP straight to … room air. You put them on oxygen. That's standard procedure.

"[Johnson's counsel:] But why would you not go straight to room air?

"[Sharpe:] Because that indicates they need some type of oxygen to be delivered. 41 SC-2023-0601

"[Johnson's counsel:] And what would happen if you went straight to room air?

"[Sharpe:] Depends on the patient.

"[Johnson's counsel:] Could they die?

"[Sharpe:] Some patients could decline --

"[Johnson's counsel:] Decline into death?

"[Sharpe:] -- meaning they would need some type of oxygen to be delivered.

"[Johnson's counsel:] What would potentially happen if they don't get it?

"[Sharpe:] Usually, you're going to monitor your patient to decide, Hey, am I going to walk away from this patient without oxygen?

"[Johnson's counsel:] I know all that. I'm just asking you why you do all those things?

"[Sharpe:] Because that's protocol.

"[Johnson's counsel:] But what is the risk if you did not?

"[Sharpe:] I never experienced a risk if I did not, so I can't answer that.

"[Johnson's counsel:] What happens to a patient whose oxygen needs are not being met?

"[Sharpe:] They will go into respiratory distress.

42 SC-2023-0601

"[Johnson's counsel:] And could that ultimately lead to death?

"[Sharpe:] Yes."

Even if the respiratory therapists removed Nathaniel's BiPAP

device and did not replace it with an oxygen mask, the deposition

testimony cited by Johnson does not demonstrate that Sharpe or King

were aware or conscious that doing so would likely or probably result in

Nathaniel's death. "Likely" is defined as "[a]pparently true or real;

probable …. [s]howing a strong tendency; reasonably expected," Black's

Law Dictionary 1113 (11th ed. 2019), and as "having a high probability

of occurring or being true: very probable." Merriam-Webster's Collegiate

Dictionary 721 (11th ed. 2020). "Probably" is defined as "insofar as seems

reasonably true, factual, or to be expected: without much doubt." Id. at

989. On the other hand, King and Sharpe testified or confirmed only that

death "could" or would "possibly" result. "Could" is the past tense of "can"

and, as used in this testimony, is "used to indicate possibility." Id. at 178.

"Possibly" means "it is possible or imaginable." Id. at 968. Caselaw

further indicates that testimony that something "could" or would

43 SC-2023-0601

"possibly" exist is insufficient to provide substantial evidence that such

"probably" exists. See Thompson v. Patton, 6 So. 3d 1129, 1137 (Ala.

2008) (holding that evidence indicating that a health-care provider's

negligence "possibly" caused an injury was not substantial evidence that

the negligence "probably" caused the injury), and Levesque v. Regional

Med. Ctr. Bd., 612 So. 2d 445, 449 (Ala. 1993) (holding that testimony

that certain acts "could" have caused an injury was insufficient, under

the scintilla rule, to show that the acts "probably" caused the injuries).

Here, at best, Sharpe confirmed that removing Nathaniel from

oxygen "could" ultimately lead to death. When asked if someone "could

probably die" in such a situation, King answered: "possibly." That

testimony does not establish consciousness, awareness, or knowledge

that such an act, which they deny occurred, was "likely" to, or "probably"

would, result in Nathaniel's death. It thus, if accepted by a trier of fact,

is insufficient to qualify as clear and convincing evidence. Ledbetter,

supra. Because Johnson has not met her burden of establishing a

genuine issue of material fact as to whether King's and Sharpe's conduct

was wanton, she has not established that exception to the immunity

provided in the May 8 proclamation or the ACIA. Thus, the trial court

44 SC-2023-0601

erred in failing to grant Jackson Hospital a summary judgment on her

wantonness claims, and Jackson Hospital has established a clear legal

right to the entry of a summary judgment in its favor.

Conclusion

Based on the above, Jackson Hospital is immune from Johnson's

claims; thus, we grant the petition and direct the trial court to enter a

summary judgment in its favor on all of Johnson's claims against it.

PETITION GRANTED; WRIT ISSUED.

Wise, Sellers, Mendheim, and Mitchell, JJ., concur.

Shaw, J., concurs specially, with opinion.

Bryan and Stewart, JJ., concur in the result.

Parker, C.J., dissents, with opinion.

Cook, J., recuses himself.

45 SC-2023-0601

SHAW, Justice (concurring specially)

I concur in the main opinion, which I authored. I write specially to

note the following.

First, the Chief Justice, in his dissent, argues that this Court is

granting mandamus relief on a ground not raised in the petition: whether

Governor Ivey's "orders" immunized Jackson Hospital & Clinic, Inc.

("Jackson Hospital"), from suit. That is not the case. Jackson Hospital

is immune under the Alabama Covid Immunity Act ("the ACIA"), § 6-5-

790 et seq., Ala. Code 1975, specifically §§ 6-5-792 and -794. That is the

issue addressed by the trial court, addressed in the petition, and

discussed in parts A. and B. of the "Discussion" section of the main

opinion, which holds that Jackson Hospital is immune under the ACIA.

As an alternate reason to deny the petition, Johnson raised an issue

that the trial court explicitly refused to address: whether it would be

unconstitutional to apply the ACIA in her case in violation of Ala. Const.

2022, Art. I, § 13. Jackson Hospital, in turn, argued that it was already

immune under the proclamation issued by Governor Ivey on May 8, 2020

("the May 8 proclamation"), when the ACIA was enacted and, thus, that

there was no violation of § 13. Jackson Hospital's arguments and the

46 SC-2023-0601

discussion in the main opinion related to the May 8 proclamation are to

rebut and to show to be invalid this alternate reason to deny the petition;

it is not the basis of this Court's decision to order that Jackson Hospital

is entitled to a summary judgment. Mandamus petitions need not first

anticipate and rebut all possible invalid reasons to deny the petition lest

the issue be deemed waived. The Chief Justice may believe that

Johnson's alternate reason to deny the petition is valid, but the main

opinion holds that it is not. Thus, the main opinion is correctly applying

the rule it cites: a mandamus petition may be denied for valid legal

grounds that were not considered by the trial court.

The Chief Justice further states that the main opinion "dodge[s] the

§ 13 argument by focusing on Governor Ivey's orders." ___ So. 3d at ___.

However, the fact that the May 8 proclamation provided immunity means

that § 13 does not affect the application of the immunity provided by the

ACIA in this case. That is the point of the discussion of the Governor's

May 8 proclamation in part C. of the "Discussion" section of the main

opinion. The Chief Justice may disagree with that discussion, but if his

position is not accepted, then the main opinion cannot be deemed to be

creating new exceptions or avoiding issues.

47 SC-2023-0601

I further note that if the respiratory therapists who treated

Nathaniel Johnson, Stephanie Sharpe and Taylor King, did not connect

Nathaniel to supplemental oxygen after removing the BiPAP device, then

that conduct could be found by a jury to be negligent. " ' " 'Negligence is

usually characterized as an inattention, thoughtlessness, or

heedlessness, a lack of due care …. "Simple negligence is the inadvertent

omission of duty." ' " ' " Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007)

(citations omitted). Here, however, Theresa Johnson alleges that their

conduct was wanton, which is an entirely different, more "culpable" or

"blameworthy" conduct. Although, for wantonness, "it is not essential

that the actor should have entertained a specific design or intent to injure

the plaintiff," it nevertheless is "the conscious doing of some act or the

omission of some duty while knowing of the existing conditions and being

conscious that, from doing or omitting to do an act, injury will likely or

probably result." Id. It rests, in part, on the tortfeasor's state of mind --

here, what Sharpe and King knew would happen if they acted in such

manner. " ' " 'Wantonness is not merely a higher degree of culpability

than negligence. … Implicit in wanton, willful, or reckless misconduct is

an acting, with knowledge of danger, or with consciousness, that the

48 SC-2023-0601

doing or not doing of some act will likely result in injury….' " ' " Id.

(citations omitted). Here, the evidence cited simply does not establish

that Sharpe and King had such awareness or consciousness. If a

negligence action were allowed in this case, then the result would be

different.

I also question whether § 13 of the Alabama Constitution applies to

actions under the Wrongful Death Act, § 6-5-410, Ala. Code 1975. Section

13 states: "[T]hat every person, for an injury done him, in his lands,

goods, person, or reputation, shall have a remedy by due process of law."

Specifically, it is not readily apparent to me that a wrongful-death action

provides a "remedy" for an "injury done" to a person.

Wrongful-death actions did not exist in the common law. Giles v.

Parker, 230 Ala. 119, 121, 159 So. 826, 827 (1935). The purpose of the

Wrongful Death Act was not to create a remedy, but to ensure the

preservation of human life. Bishop v. Chilton Cnty., 990 So. 2d 287, 290

(Ala. 2008) ("[A] claim brought under the Alabama Wrongful Death Act,

… where the damages are entirely punitive, [is] 'imposed for the

preservation of human life,' Eich v. Town of Gulf Shores, 293 Ala. 95, 98,

300 So. 2d 354, 356 (1974), and not for the purpose of compensation,

49 SC-2023-0601

McKowan v. Bentley, 773 So. 2d 990, 998 (Ala. 1999)."). See also Pickett

v. Matthews, 238 Ala. 542, 548, 192 So. 261, 266 (1939) ("But the

homicide statute is not the creation of a remedy, but of a cause of action

for death by wrongful act, which did not exist at common law."), and

Gentry v. Gilmore, 613 So. 2d 1241, 1245 (Ala. 1993) (Houston, J.,

concurring in the result) ("[T]he avowed public purpose of the wrongful

death statute is to prevent homicide and to punish the culpable party and

not to compensate for the loss."). Thus, "[t]he damages awarded are

punitive in nature." Geohagan v. General Motors Corp., 291 Ala. 167,

171, 279 So. 2d 436, 439 (1973). The personal representative of an estate

who is prosecuting such an action is not seeking compensation for himself

or herself, the decedent, or the decedent's estate, but instead "acts as an

agent of legislative appointment for declaring the public policy evidenced

by the wrongful death acts." Geohagan, 291 Ala. at 171, 279 So. 2d at

439. See also Bradberry v. Carrier Corp., 86 So. 3d 973, 984 (Ala. 2011)

(" '[T]he personal representative is authorized [under the Wrongful Death

Act] to sue as an agent of legislative appointment for effecting the

declared public policy of preventing homicides.' " (citations omitted)), and

Ex parte Rodgers, 141 So. 3d 1038, 1042 (Ala. 2013) ("[T]he proceeds

50 SC-2023-0601

collected as a result of a wrongful-death claim are not part of the

decedent's estate.").

If a wrongful-death action is not a common-law remedy, its purpose

is to punish tortfeasors who cause death, the personal representative who

pursues such an action is an "agent" effectuating legislative policy, and

such an action does not provide compensation, then I question whether

such an action can be considered, in the words of § 13, as providing "a

remedy" for a person for an "injury done him." Perhaps, in a future case,

when the issue has been properly raised and briefed, this Court may be

in a position to address my concern.

51 SC-2023-0601

PARKER, Chief Justice (dissenting).

The Alabama Constitution is the supreme law of the state, even in

emergencies. Art. XVIII, § 286.02, Ala. Const. 2022. It provides that only

the Legislature has the power to suspend the laws, and it makes no

exception for emergencies. Art. I, § 21, Ala. Const. 2022. It provides that

the executive branch "may not" exercise legislative powers, and it makes

no exception for emergencies. Art. III, § 42(c), Ala. Const. 2022. These

bulwarks of constitutional government guarantee that we "may be a

government of laws and not of individuals" -- a republic -- even in

emergencies. Id. (separation-of-powers provision). Our Constitution gives

the government structure, controls the laws, and supersedes the laws, so

that we may be a government of laws and not of men.

By failing to uphold these constitutional guarantees in this case, we

not only fail to uphold the right of the People to govern themselves, but

we also pave the way for a less scrupulous Executive to abuse its

emergency powers in the future. Because the opinion holds that the

Governor's orders immunized Jackson Hospital & Clinic, Inc. ("Jackson

Hospital"), from the plaintiff's suit -- which was a ground for mandamus

relief that Jackson Hospital did not raise -- I respectfully dissent.

52 SC-2023-0601

I. A New Exception to Our Mandamus Rules

The main opinion holds that the claims of Theresa Johnson

("Theresa") are barred by the Governor's orders. Before addressing the

merits of that argument, I maintain that we should have never addressed

this issue for one simple reason: Jackson Hospital did not raise that

ground for immunity in its petition for a writ of mandamus. In its

petition, Jackson Hospital argued that it was entitled to mandamus relief

for two reasons: (1) the general-immunity provisions of the Alabama

Covid Immunity Act ("the ACIA"), § 6-5-790 et seq., Alabama Code 1975,

entitle it to immunity and (2) in the alternative, the ACIA's safe-harbor

provision entitles it to immunity. We ordered answers and briefs

expecting to address only those issues. But now, even though Jackson

Hospital never petitioned for mandamus relief on this ground, the main

opinion grants mandamus relief on a third ground: the Governor's orders

immunized it from suit.

We have held before that this Court will not consider an issue that

a party does not raise in his petition for a writ of mandamus. Ex parte

Wilcox Cnty. Bd. of Educ., 374 So. 3d 641, 649 n.9 (Ala. 2022). This is

merely an extension of our rule that a party waives an issue that he does

53 SC-2023-0601

not present in his opening brief. See, e.g., Crews v. National Boat Owners

Ass'n Marine Ins. Agency, Inc., 46 So. 3d 933, 942 (Ala. 2010) (" 'When an

appellant fails to argue an issue in its [initial] brief, that issue is

waived.' ") (citation omitted); see also Kasten v. Saint-Gobain

Performance Plastics Corp., 563 U.S. 1, 17 (2011) ("We do not normally

consider a separate legal question not raised in the certiorari briefs.").

This is even more true when a party is seeking a writ of mandamus,

which is a " 'drastic and extraordinary remedy' " as to which the petitioner

" 'carries a heavy burden.' " Ex parte Alabama-West Florida Conf. of the

United Methodist Church, Inc., [Ms. SC-2023-0385, Apr. 12, 2024] ___

So. 3d ___, ____, ____ (Ala. 2024) (citations omitted). Therefore, we have

repeatedly held that the petitioner must demonstrate that he satisfies all

four mandamus elements. 12 See, e.g., Ex parte Hill, 225 So. 3d 56, 63

(Ala. 2016); Ex parte T.J., 89 So. 3d 744, 746 (Ala. 2012); Toler v. Murray,

886 So. 2d 76, 78 (Ala. 2004). If he fails to meet his burden, then he loses.

12Thosefour elements are " '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " Ex parte Gulf Health Hosps., Inc., 321 So. 3d 629, 622 (Ala. 2020) (citation omitted). 54 SC-2023-0601

But instead of following our ordinary rule, the Court in this case

excuses Jackson Hospital's failure to raise this critical issue in its

petition. The main opinion reasons that this is excusable because the

respondent raised the issue and that, therefore, we should consider

upholding the circuit court's order on that ground. But this argument

makes sense only if we conclude that Article I, § 13, of the Alabama

Constitution does not bar the application of the ACIA to Theresa's claims.

Instead of taking that issue head-on, the main opinion pivots to

addressing the Governor's orders and deciding the case on that ground. I

do not understand how the main opinion can dodge the § 13 argument by

focusing on the Governor's orders. Even if we could have addressed the

Governor's orders, we could get there only if we first concluded that § 13

did not let the ACIA bar Theresa's claims.

Perhaps the main opinion's argument is that we can address this

issue because the respondent opened the door. While I might be amenable

to recognizing this exception if it came up on appeal, a petitioner seeking

the "drastic and extraordinary" remedy of mandamus relief has a

heightened duty to get it right the first time. Regardless of how fervently

the Governor and amici press us to reach their issue of interest, I do not

55 SC-2023-0601

believe that we should abandon our rule of requiring a petitioner to raise

all grounds for relief in the petition itself. Because Jackson Hospital did

not ask us to address that issue in its petition, I do not believe that we

should grant mandamus relief on that ground.

II. Executive Power, Emergency Powers, and Suspension of Laws

Because the main opinion considers the issue whether the

Governor's immunized Jackson Hospital from suit, the critical question

becomes whether the Governor had the authority to immunize Jackson

Hospital from suit before Theresa's cause of action accrued. Theresa

advances two main arguments for why the answer is no: (1) Article II, §

42, of the Alabama Constitution forbids the Governor from exercising

legislative power and (2) Article I, § 21, of the Alabama Constitution

provides that only the Legislature may suspend the laws.13 Jackson

13Before making these constitutional arguments, Theresa makes a

statutory argument that the Executive exceeded its authority under the Alabama Emergency Management Act (the "AEMA"), § 31-9-1 et seq., Ala. Code 1975. Theresa argues that the AEMA does not explicitly allow the Governor to change tort law in an emergency. However, the AEMA grants the Governor the breathtakingly broad power to "perform and exercise such … functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population." § 31-9-8(a)(5), Ala. Code 1975. It further provides that all laws in conflict with the Governor's orders shall be suspended while the emergency lasts. § 31-9-13, Ala. Code 1975. The AEMA also provides that it shall be 56 SC-2023-0601

Hospital and its amici counter vigorously that the Executive was

operating within its sphere of executive authority and that the

Legislature itself suspended the laws contingent on a finding of fact by

the Governor.

For the reasons set forth below, I believe that Theresa is right. Both

sides cite precedents that could be construed in favor of one party or the

other. But the key to understanding these issues is the history that

informed the making of the Alabama Constitution. As I will demonstrate

below, the questions whether the Executive may suspend the laws or

issue proclamations that change the law were settled decisively in 1689,

when the English Bill of Rights went into effect. The English Bill of

Rights forbade the king from using his proclamation power to change or

suspend the laws, just as the Executive did during the COVID-19

pandemic. Not only did the United States and Alabama Constitutions

incorporate that principle, but they made it even harder for the Executive

to exercise that power than the English Bill of Rights did. Because the

"construed liberally in order to effectuate its purpose." § 31-9-23, Ala. Code 1975. Therefore, I find Theresa's statutory argument unavailing, leaving us with no choice but to address the constitutionality of the Governor's actions. 57 SC-2023-0601

Alabama Constitution has never been amended to grant the Executive

the broad powers it claims to be able to exercise here, it did not allow the

Governor to issue the emergency proclamations -- or orders -- that made

the difference in this case. Furthermore, although the Suspension Clause

in § 21 of the Alabama Constitution at one time could have been

interpreted to let the Executive make a finding of fact that suspended the

laws, the words that could have permitted that interpretation were

dropped from the Alabama Constitution in 1875 and have never

returned. For those reasons, I do not believe that the Executive was

authorized to immunize Jackson Hospital from Theresa's cause of action.

A. Historical Background

Neither the Federal Constitution nor State Constitutions can be

interpreted in a vacuum; they must be interpreted in light of the

historical sources that informed their meaning. See, e.g., New York State

Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 20-22 (2022) (discussing the role

that history plays in constitutional analysis); Barnett v. Jones, 338 So.

3d 757, 766-67 (Ala. 2021) (Mitchell, J., concurring specially); see also

LePage v. Center for Reprod. Med., P.C., [Ms. SC-2022-0515, Feb. 16,

2024] ____ So. 3d ____, ____ (Ala. 2024) (Parker, C.J., concurring

58 SC-2023-0601

specially) (providing a nonexhaustive list of sources that can be used in

discerning the Alabama Constitution's original meaning). Because the

Executive's proclamation power and the Legislature's suspension power

both come from the common law, I will begin my analysis there and then

trace how it helped shape the Alabama Constitution, including §§ 21 and

42.

1. The Common Law

The history of the British government is fraught with competition

between the king and Parliament. While Parliament was presumed to

hold the kingdom's legislative power, the king often wielded prerogative

powers that clashed with Parliament. Jack Buckley DiSorbo, On

Executive Orders and the Royal Prerogative, 26 Tex. Rev. L. & Pol. 555,

571 (2022). Blackstone defined "prerogative power" as "that special pre-

eminence, which the king hath, over and above all other persons, and out

of the ordinary course of the common law, in right of his regal dignity." 1

William Blackstone, Commentaries on the Laws of England *232. Those

powers reached a " 'high-water' mark with the passage of the so-called

Lex Regia of 1539. This statute gave the king expansive power to issue

59 SC-2023-0601

proclamations with the force of law." DiSorbo, supra, at 571 (footnotes

omitted).

Tension began to rise between the king and the other branches of

government when the Stuart monarchs began using their proclamation

powers to create legislation. Id. " 'The King had the prerogative of issuing

proclamations that announced the state of the law and how he intended

to enforce it, but the early Stuart monarchs tried to go a huge step further

by adding legal obligations, beyond those required by statutes, to their

proclamations.' " Id. (quoting Robert J. Reinstein, The Limits of Executive

Power, 59 Am. U. L. Rev. 259, 272 (2009)). When the king sought an

advisory opinion from Sir Edward Coke on whether this was legal, Coke,

on behalf of himself and the other common-law justices, informed him

that "the King by his Proclamation, or other waies [sic], cannot change

any part of the Common Law, or Statute Law, or the Customs of the

Realm." 1 The Selected Writings of Sir Edward Coke 488 (Steve Sheppard

ed. 2003) (1610). 14

14Because the common-law courts refused to enforce those proclamations, the king resorted to bringing prosecutions in the Star Chamber, which became a notorious tool for suppressing dissenters under Charles I. Reinstein, supra, at 272. 60 SC-2023-0601

Another of the king's prerogative powers was the power to suspend

and dispense with the laws. DiSorbo, supra, at 573. That included the

power to nullify or ignore preexisting laws passed by Parliament. Id.

James II notoriously abused that power, and preventing the monarch

from doing so in the future was a major objective of the Glorious

Revolution. Id.

When William and Mary took the throne in 1689, the English

enacted their own Bill of Rights to ensure that many of the abuses they

had suffered would never occur again. The English Bill of Rights

recognized 13 rights, the first 2 of which were the following:

"1. That the pretended power of suspending laws, or execution of laws, by regal authority, without consent of parliament, is illegal.

"2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal."

An Act Declaring the Rights and Liberties of the Subject, and Settling

the Succession of the Crown (Bill of Rights), 1689, 1 W. & M., Sess. 2, c.

2, §§ 1-2. Thus, from 1689 forward, the question whether the king had

the power to suspend the laws or to change the law through

61 SC-2023-0601

proclamations was permanently settled through the equivalent of

England's First and Second Amendments. DiSorbo, supra, at 571, 573. 15

By the time of Blackstone, the king's prerogative powers were well-

settled. DiSorbo, supra, at 566-68. Specifically, the king had the following

prerogative powers: (1) to make treaties, leagues, and alliances; (2) to

make war and peace; (3) to take measures about the admission of

strangers; (4) to veto legislation; (5) to command the military; (6) to raise

and regulate the military; (7) to erect forts and military bases; (8) to

appoint ports and havens; (9) to erect beacons, lighthouses, and

seamarks; (10) to prohibit the export of arms or ammunition; (11) to

prohibit subjects from leaving the realm without a license; (12) to

command the return of subjects from overseas; (13) to establish courts of

15One year after Parliament passed the English Bill of Rights, John

Locke published his famous Second Treatise on Government, in which his view of prerogative power went much further than what the English Bill of Rights allowed. According to Locke, the king's prerogative power gave him the authority " 'to act according to discretion, for the publick [sic] good, without the prescription of the Law, and sometimes even against it.' " DiSorbo, supra, at 561 (quoting John Locke, Second Treatise on Government 84 (C.B. Macpherson ed., 1690)) (emphasis added). But the English Bill of Rights stands in direct opposition to Locke's view of prerogative power. Regardless of which view reflects better political theory, the law of the land was that the king did not have the kind of prerogative powers that Locke thought he should.

62 SC-2023-0601

justice; (14) to prosecute all public offenses; (15) to issue proclamations

that are grounded in and are issued to enforce the laws of the realm; (16)

to confer dignities and honors (such as titles of nobility); (17) to erect and

dispose of public offices; (18) to confer privileges upon private persons;

(19) to erect corporations; (20) to establish public marts; (21) to regulate

weights and measures; (22) to coin money; and (23) to be the head of the

national church. See 1 Blackstone, Commentaries *230-70 (listing and

discussing each of those prerogative powers).

The belief was that the king was absolute in regard to those powers

and should not be inhibited by the law. DiSorbo, supra, at 567. However,

he had no right to make law. Id. As to his proclamation power, the king

could issue proclamations to enforce laws that already existed. Id. at 567-

68 (quoting 1 Blackstone, Commentaries at *261). But in the long list of

prerogative powers listed in Blackstone's Commentaries, the power to

suspend the laws, whether to respond to a public-health crisis or other

perceived emergency -- was never mentioned. See 1 Blackstone,

Commentaries *230-70.

The historical record actually proves that the king's prerogative

powers did not include the power to suspend the laws to deal with a

63 SC-2023-0601

public-health crisis. Just 10 years before the Declaration of

Independence, a severe grain shortage hit Britain, prompting the king to

issue a proclamation imposing an embargo on the export of grain so that

the people would not starve. Michael W. McConnell, The President Who

Would Not Be King: Executive Power Under the Constitution 111

(Princeton Univ. Press 2020). The Crown claimed that it had the

authority " 'to take upon itself whatever the safety of the state may

require, during the recess of parliament.' " Id. When Parliament

reconvened, it debated the propriety of the proclamation. The king's

ministry argued that the proclamation was "justified by public necessity

and emergency." Id. at 112. Responding to the objection that the king's

proclamation was tyrannical, the ministry replied that it was " 'at most

but a forty days of tyranny.' " Id. (citation omitted). The opposition

responded that if such proclamations were validated, " 'you cannot be

sure of either liberty or law for forty minutes.' " Id. (citation omitted). In

the end, Parliament sided with the opposition, enacting a statute

declaring that the proclamation " 'could not be justified by law.' " Id.

(citation omitted). Blackstone wrote about it, stating that "the royal order

was 'contrary to law.' " Id. (quoting 1 Blackstone, Commentaries *271 (St.

64 SC-2023-0601

George Tucker, ed., Rothman Reprints 1969)). Because Blackstone wrote

about it, the Founders would have been aware of it as well. Id.

2. The United States Constitution

a. The Convention of 1787

Although it would be a mistake to assume that the Alabama

Constitution means whatever the United States Constitution means,16

the drafters of the Alabama Constitution borrowed heavily from the

Constitutions of the United States and of Mississippi.17 We the People:

Alabama's Defining Documents 13 (Alabama Department of Archives

2019). Those who drafted and read the Alabama Constitution would have

understood its terms to be interpreted in light of the Federal Constitution

if their provisions were identical. Therefore, we should examine whether

the Federal Constitution altered the Executive's prerogative powers from

what the common law provided. The answer to that question is yes, but

16See generally Jeffrey S. Sutton, 51 Imperfect Solutions: States

and the Making of American Constitutional Law (Oxford Univ. Press 2018) (arguing that state constitutions can be different than the Federal Constitution).

17Alabama before statehood had been part of the Mississippi Territory. See Path to Statehood, Alabama Bicentennial Park (at the time of this decision, this information could be located at: https://www.al200park.alabama.gov/path-to-statehood). 65 SC-2023-0601

it altered them by making the Executive's prerogative powers even

weaker than what the king had under the common law.

Article II of the United States Constitution came from James

Madison's Virginia Plan and was pushed through the Committee of the

Whole by James Wilson. DiSorbo, supra, at 585 & n.118. According to

Madison's notes, Wilson "did not consider the Prerogatives of the British

Monarch as a proper guide in defining the Executive powers." 1 Records

of the Federal Convention of 1787 65 (Max Farrand ed. 1911) (hereinafter

"Farrand"). Wilson considered some of the king's prerogative powers as

legislative in nature. Id. Wilson believed that the only functions that

were strictly executive were "those of executing the laws, and appointing

officers, not (appertaining to and) appointed by the Legislature." Id. at

66. Wilson's belief that the executive power was the power to execute the

laws aligns well with the common understanding of "executive" at the

time, which was "the body or person who carries the laws into effect, or

superintends the enforcement of them." Webster's American 1828

Dictionary of the English Language 311 (Walking Lion Press 2010)

(hereinafter "Webster (1828)").

66 SC-2023-0601

The Committee of Detail agreed with Wilson's premise that some of

the old prerogative powers were legislative in nature, because it divided

up the king's prerogative powers between Congress and the President.

DiSorbo, supra, at 585.18 The Convention as a whole eventually agreed,

and it sent the Federal Constitution to the states for ratification.

The new Federal Constitution did not grant the Executive the kind

of prerogative powers that preceded the 1689 English Bill of Rights.

Instead, it kept the prerogative powers that the king had at the time of

Blackstone but divided them between two bodies instead of vesting them

in one. The only Framer who argued that the President had all the

prerogative powers of the English monarch was Alexander Hamilton; he

18Specifically, Congress received the following prerogative powers

that used to be exercised by the king: declaring war; issuing letters of marque and reprisal; raising and supporting an army and navy; making rules for the armed forces; regulating the militia; calling the militia into national service; defining the law of nations; coining money; regulating weights and measures; establishing post offices and postal roads; issuing patents and copyrights; making rules for naturalization; regulating federal property; and creating and defining offices. McConnell, supra, at 68. In contrast, the President was given the following powers: commanding the army, navy, and militia; demanding opinions in writing; granting reprieves and pardons; appointments to office; making treaties; vetoing legislation; taking care to faithfully execute the laws; convening and adjourning Congress; and informing Congress and recommending measures. Id. 67 SC-2023-0601

did not make that argument until well after the Convention in the

Pacificus-Helvidius debate against James Madison, who took the

opposite view. DiSorbo, supra, at 584-85, 592-93. Unfortunately for

Hamilton, the Committee of Detail's division of the king's well-

established prerogative powers between Congress and the President was

fatal to his argument. Thus, the case that the Framers intended for the

Executive to have amorphous prerogative powers cannot be sustained. 19

b. Ratification

When the states were voting on ratification, the Federalists and the

Antifederalists debated Article II. Unsurprisingly, the Antifederalists

believed that the President had been given too many prerogative powers.

DiSorbo, supra, at 587. However, their concern was not that the

President had too many unspecified prerogative powers but, rather, too

many specified prerogative powers. Id. at 589. The Federalists countered

19The only exception could be the Executive's need to take immediate defensive action in time of war. See 2 Farrand at 318 (noting that the Convention followed James Madison and Elbridge Gerry's suggestion to change Congress's power to "make war" to "declare war" to give "the Executive the power to repel sudden attacks"). But ensuring that the Executive had the inherent power to act defensively to repel an immediate military threat is different than the power to respond immediately to a public-health crisis. 68 SC-2023-0601

by pointing out the differences between the President and a king,

especially that the President has no power of suspending laws. Id. at 587-

88. Thus, neither the Federalists nor the Antifederalists appeared

concerned that the new President would have unspecified prerogative

powers.

It is also worth noting in passing that the Federalists and the

Antifederalists debated whether the new executive branch would cause

America to go the way of Rome, including how the office of dictator in the

days of the republic eventually paved the way for Caesar. See generally

Robert G. Natelson, A Republic, Not a Democracy? Initiative,

Referendum, and the Constitution's Guarantee Clause, 80 Tex. L. Rev.

807 (2002); see also David J. Bederman, The Classical Constitution:

Roman Republican Origins of the Habeas Suspension Clause, 17 S. Cal.

Interdisc. L. J. 405, 434 (2008). While Rome was still a republic, if Rome

was facing an approaching enemy or an insurrection, the Senate would

take a vote to appoint a dictator, who would then be appointed by the

consul. Carlos Rosenkrantz, Constitutional Emergencies in Argentina:

The Romans (Not the Judges) Have the Solution, 89 Tex. L. Rev. 1557,

1580 (2011). However, the dictator's term would last only six months or

69 SC-2023-0601

until the crisis was resolved, whichever was shorter, and he could not

change the constitution or the laws during his term. Id.; Sanford

Levinson, The Deepening Crisis of American Constitutionalism, 40 Ga.

L. Rev. 889, 904 (2006). Only two dictators, Lucius Sulla and Julius

Caesar, extended their dictatorships beyond the six-month limit. David

Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477, 505

(2008). Caesar's dictatorship, of course, ended the republic. Id. The

Antifederalists feared that the new Presidency would set America on the

same path as Rome. See, e.g., 3 The Debates in the Several State

Conventions on the Adoption of the Federal Constitution 160 (Jonathan

Elliot, ed., 2d ed. 1836) (speech of Patrick Henry, arguing that the

American presidency was equivalent to the office of the Roman dictator).

However, because the states eventually ratified the new Federal

Constitution, it is safe to assume that the Federalists were able to

convince the public that the executive branch's powers were sufficiently

cabined to prevent that from happening.

Thus, the states eventually ratified the new Federal Constitution

with the understanding that the executive branch would not be able to

70 SC-2023-0601

operate outside the confines of the law. As Professor McConnell

concludes:

"It is often argued that the American President must -- and therefore does -- have emergency powers to act beyond the scope of his constitutionally and statutorily defined powers, and perhaps even in defiance of constitutional or statutory restrictions. The most familiar historical example is Lincoln's suspension of habeas corpus. But our Constitution makes no provision for extraconstitutional powers in time of emergency. The pros and cons of those arguments lie in the field of political theory, not constitutional interpretation. The concept of prerogative in the American constitutional context is confined to the exercise of defined discretionary powers, within the limits of law."

McConnell, supra, at 29 (footnote omitted).

3. The Alabama Constitution from 1819 to Today

As mentioned above, the Alabama Constitution of 1819 borrowed

heavily from the United States Constitution and the Mississippi

Constitution of 1817. We the People, supra, at 13. Article I, § 15, of the

Alabama Constitution of 1819 provided: "No power of suspending laws

shall be exercised, except by the general assembly, or its authority." This

provision appears to have been modeled after the English Bill of Rights

and captured the American sentiment that allowing only the legislative

branch to suspend the laws is essential to restraining executive power.

71 SC-2023-0601

Furthermore, the 1819 Constitution contained an even stronger

separation-of-powers provision than the United States Constitution.

Article II of the 1819 Constitution provided:

"§ 1. The powers of the government of the State of Alabama shall be divided into three distinct departments; and each of them confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

"§ 2. No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted."

While separation of powers was inescapably implied in the United States

Constitution, it was expressly provided in the Alabama Constitution,

setting up even more of a firewall between the executive and legislative

branches than in its federal predecessor. This sentiment was so strong

among the drafters that Article II was accepted without debate. See We

the People, supra, at 13; see also Journal of the 1819 Convention at 21.

Finally, the Alabama Constitution of 1819 created a "weak

executive branch," requiring the Governor to be elected every two years,

providing him only minor appointive powers, and allowing the

Legislature to override his vetoes by a simple majority vote. We the

People, supra, at 15. The Governor was also limited to two terms, which 72 SC-2023-0601

was a limitation not made for members of the Legislature. Id.20 Nothing

in Article IV of the 1819 Constitution gave the Governor the

extraordinary powers of suspending the laws or exercising unspecified

prerogative powers in an emergency.

When Alabama seceded and adopted the Constitution of 1861, some

delegates to the convention "argued for a stronger executive branch

suitable to the extraordinary times." We the People, supra, at 38.

Specifically, those delegates sought to lengthen the Governor's term to

four years and to require a two-thirds vote to override his veto. Id.

Despite the fact that the Civil War was on the horizon, both of those

proposals were defeated. Id. Thus, even in the most drastic emergency

that this state had ever seen, the People of Alabama refused to give the

20The weak executive branch appeared to be modeled after the Mississippi Constitution, whose "weak executive branch" was a "hallmark of Mississippi politics." John W. Winkle III, Constitution of 1817, The Mississippi Encyclopedia (at the time of this decision, this document could be located at: https://mississippiencyclopedia.org/entries/constitution-of-1817). The Mississippi Constitution appeared to model its weak executive branch after the Tennessee Constitution o f 1796. See id. Thomas Jefferson called T ennessee's Constitution "'the least imperfect and most republican'" of the state constitutions that had been enacted by that time. Andrew Gold, The Antebellum Constitutions of Two Southern States Compared and Contrasted: South Carolina and Tennessee, 23 J. S. Legal Hist. 1, 11 (2015) (citation omitted). 73 SC-2023-0601

executive branch the kinds of prerogative powers that Jackson Hospital

and the amici ask us to recognize in this case.

The Constitution of 1875 brought some changes to the Suspension

Clause and the executive branch. First, and quite importantly, the

Suspension Clause dropped the phrase "or its authority" and, instead,

provided: "That no power of suspending laws shall be exercised, except

by the general assembly." Art. I, § 22, Ala. Const. 1875. Second, it

extended the Governor's term to four years. We the People, supra, at 82.

Even then, the extension came with a tradeoff: the Constitution of 1875

required the salaries of members of the executive branch to be cut by

25%, and it mandated that the Legislature cut them further. Id. at 82.

Term limits for the Governor were finally abolished by the

Constitution of 1901, but the Governor was not eligible to run as his own

successor. Id. at 103; Art. V, § 116, Ala. Const. 1901. 21 However, the

separation-of-powers article, Article III, was amended to read as follows:

"Section 42. The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those

21The Constitution of 1901 was amended in 1968 to allow governors

to run for consecutive terms. Amend. No. 282, Ala. Const. 1901. 74 SC-2023-0601

which are executive, to another; and those which are judicial, to another.

"Section 43. In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

(Emphasis added.) 22 Finally, the Suspension Clause underwent some

cosmetic amendments to read: "That no power of suspending laws shall

be exercised except by the legislature." Art. I, § 21, Ala. Const. 1901.

However, it had no material alterations from Article I, § 22, of the

Constitution of 1875.

22This emphasized language in the Alabama Constitution appears

to be taken from John Adams. See John Adams, Thoughts on Government (Apr. 1776) (arguing that "the ver y definition of a Republic, is 'an Empire of Laws, and not of men'"). In 1780, Adams enshrined these words into the Massachusetts Constitution, which provided:

"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Part I, art. XXX, Mass. Const. 1780. 75 SC-2023-0601

Thus, although the 1901 Constitution and its amendments altered

how long the Governor could serve, it did not alter what he could do. If

anything, Article III, § 43, of the Alabama Constitution of 1901 made the

already existing firewall between executive and legislative power even

stronger. The Alabama Constitution of 2022 made no material changes

to the Governor's power, the Separation of Powers Clause, or the

Suspension Clause, which continues to read: "That no power of

suspending laws shall be exercised except by the legislature." Art. I, § 21,

Ala. Const. 2022.

Thus, the Alabama Constitution created an even weaker executive

branch than its federal counterpart. While the executive branch grew

stronger over time, the scope of its power never increased. Instead, the

post-Civil War Alabama Constitutions strengthened the separation-of-

powers provision and eliminated the phrase "or its authority" from the

Suspension Clause, meaning that only the Legislature itself could

suspend the laws.

4. Pre-Alabama Emergency Management Act Precedents

Before the passage of the Alabama Emergency Management Act

("the AEMA"), § 31-9-1 et seq., Ala. Code 1975, this Court's limited

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precedents on these issues aligned with the historical background

described above. In Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935),

the Legislature passed a law giving the judiciary pardon and parole

powers when it deemed that the interests of justice so required. This

Court held that the law was unconstitutional because that power had

been given to the Governor alone. 231 Ala. at 5, 163 So. at 370.

Addressing the argument regarding whether the law was a valid exercise

of the Legislature's suspension power, the Court held: "It is quite certain

that the Legislature cannot authorize the suspension of a law by another

agency, even in cases where it has the power to suspend the law." 231

Ala. at 4, 163 So. at 368-69 (emphasis added). This Court reiterated this

principle in 1941, shortly before the passing of the AEMA. Opinion of the

Justices No. 60, 241 Ala. 416, 418, 3 So. 2d 50, 52 (1941); see also Opinion

of the Justices No. 238, 345 So. 2d 1354, 1357 (Ala. 1977).

If an emergency arose and the Governor lacked the power to deal

with it, there was a simple solution: Call the Legislature into a special

session. See Art. V, § 122, Ala. Const. 1901. Indeed, this Court held that

if "an emergency or necessity should arise, there is no reason why the

Governor cannot convene the Legislature into a special session …."

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Opinion of the Justices No. 10, 222 Ala. 353, 354, 132 So. 311, 312 (1931).

The Court reaffirmed this rule shortly before the passage of the AEMA.

Opinion of the Justices No. 74, 249 Ala. 153, 154, 30 So. 2d 391, 392

(1947).

Finally, although it is only persuasive authority, it is also worth

noting that even the United States Supreme Court shared these views in

the 19th and early 20th centuries. Immediately after the Civil War,

which was the greatest crisis this country had ever seen, that Court said

the following:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority."

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).

This view carried on into the early 20th century as well:

"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution 78 SC-2023-0601

was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system."

Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 425-26 (1934).

One could argue that the United States Supreme Court's decision

in Jacobson v. Massachusetts, 197 U.S. 11 (1905), cuts the other way. In

Jacobson, the United States Supreme Court rejected a 14th Amendment

challenge to a Massachusetts law that allowed municipalities to require

citizens to get vaccinated during a smallpox outbreak. Specifically, the

Court held:

"If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

Jacobson, 197 U.S. at 31. But as Justice Alito has observed: "Language

in Jacobson must be read in context, and it is important to keep in mind

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that Jacobson primarily involved a substantive due process challenge to

a local ordinance requiring residents to be vaccinated for small pox."

Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___, ___, 140 S. Ct.

2603, 2608 (2020) (Alito, J., dissenting). In other words, Jacobson stands

for the unremarkable proposition that federal courts do not have

jurisdiction to strike down a state's use of its police powers based on

vague and unspecified liberty interests that are not actually found in the

Constitution of the United States. See Dobbs v. Jackson Women's Health

Org., 597 U.S. 215, 239-40 (2022). Jacobson does not stand for the

proposition that the government can get away with whatever it wants in

an emergency.

5. Conclusions

Drawing on such a rich historical background, it is incredibly

difficult to argue that the Alabama Constitution allows the Governor to

change the law or to suspend the law, even during an emergency. Such

powers had not been exercised since the Stuart monarchs, and even then

they were not successful. The 1689 English Bill of Rights settled the

questions whether the king could suspend the laws or change the law

with a proclamation. The Americans created an even weaker executive

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branch than the British had, dividing the remaining prerogative powers

between the legislative and executive branches.

Finally, the People of Alabama created an even weaker executive

branch than the Americans did. While Alabamians eventually allowed its

Governor to serve longer than originally allowed in 1819, they also

increased the strength of the separation-of-powers provision in the

Alabama Constitution. Moreover, if any argument could be made that the

Legislature could authorize the Executive to suspend the laws under its

authority, such an argument is foreclosed by dropping the words "or its

authority" from the Suspension Clause in 1875. See Ex parte Melof, 735

So. 2d 1172, 1182 (Ala. 1999) (concluding that the guarantee of equal

protection in Alabama comes from the 14th Amendment alone because

the 1901 Constitution dropped the 1875 Constitution's Equal Protection

Clause); see also Pinigis v. Regions Bank, 977 So. 2d 446, 452 (Ala. 2007)

("It is well settled that when the legislature makes a 'material change in

the language of [an] original act,' it is 'presumed to indicate a change in

legal rights.' ") (quoting 1A Norman J. Singer, Statutes & Statutory

Construction § 22:30 (6th ed. 2002))). In light of its history, the

Constitution of Alabama is incredibly clear: the Executive may not

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suspend the law or exercise proclamation powers that override the laws

of this state.

B. The World War II Era

This Court's jurisprudence finally began to shift during the World

War II era, holding that the government could go against the law

sometimes in extraordinary circumstances. For instance, as to the issue

of vested rights, this Court held that the Legislature may interfere with

vested rights if the interference was (1) "made necessary by a great public

calamity," Mutual Bldg. & Loan Ass'n v. Moore, 232 Ala. 488, 492, 169

So. 1, 5 (1936), (2) temporary in duration, and (3) "limited by reasonable

conditions appropriate to the emergency." First Nat'l Bank of

Birmingham v. Jaffe, 239 Ala. 567, 571, 196 So. 103, 106 (1940). As the

Attorney General's amicus brief notes, that shift may be explained by the

fact that America had just come out of the Great Depression and was on

the brink of World War II.

As to the issue of executive power specifically, Justice Jackson's

famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 634 (1952), became the seminal opinion regarding how to examine

the Executive's actions during an emergency. See, e.g., Zivotofsky ex rel.

82 SC-2023-0601

Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015) (holding that the United States

Supreme Court follows Justice Jackson's Youngstown framework).

Justice Jackson claimed that "what our forefathers did envision, or would

have envisioned had they foreseen modern conditions, must be divined

from materials almost as enigmatic as the dreams Joseph was called

upon to interpret for Pharaoh." 343 U.S. at 634. Examining the historical

record from Hamilton and Madison's debates through the works of

Theodore Roosevelt, Justice Jackson claimed that the sources on both

sides of the historical debate "largely cancel each other." Id. at 635 & n.1.

He then proposed his famous three-part framework that many have

followed in the years since then. Id. at 635-38. 23 Jackson Hospital and a

supporting amicus brief urge us to follow Justice Jackson's framework

here.

But with all due respect to Justice Jackson, I believe that his

premise that the historical evidence was inconclusive was incorrect. He

23Justice Jackson's framework can be summarized as follows: (1)

When the President acts pursuant to authorization from Congress, his power is at its maximum; (2) when the President acts where Congress has not spoken either way, there is a "zone of twilight in which he and Congress may have concurrent authority"; and (3) when the President acts in a way incompatible with the will of Congress, then his power must be "exclusive" and "conclusive" as to the matter. Id. at 635-38. 83 SC-2023-0601

found the text and history of the Federal Constitution too ambiguous to

resolve the question, so he looked to the Federal Constitution's structure

instead. I respectfully submit that the problem with his approach is that

he looked no further back than 1787 to inform his research. See id. at 635

& n.1. As I have demonstrated above, the question whether the Executive

can suspend the law or act in contravention of the law, even in an

emergency, was so well-settled by that point that it did not even need to

be debated in 1787.

C. The Passage of the AEMA

Although the People of this state never amended the Alabama

Constitution to reflect the modern view of emergency executive powers

discussed above in Part II.B, the Legislature passed the AEMA in 1955.

From what I can tell, the threat of nuclear war with the Soviet Union

spurred the passage of the AEMA. See § 31-9-2(a), Ala. Code 1975

(declaring that the AEMA was needed because of "the existing and

increasing possibility of the occurrence of disasters or emergencies of

unprecedented size and destructiveness resulting from enemy attack,

sabotage, or other hostile action …."). The AEMA gives either the

Governor or the Legislature the power to declare that an emergency

84 SC-2023-0601

exists. § 31-9-8(a), Ala. Code 1975. The state of emergency automatically

terminates after 60 days, but the Governor has the power to extend the

state of emergency simply by issuing another proclamation. Id. The

Legislature is therefore powerless to check the Governor's decision to

declare a state of emergency or to extend it.

The powers of the Governor during an emergency are quite

expansive. First, the AEMA provides that "[a]ll existing laws, ordinances,

rules, and regulations or parts thereof inconsistent with the provisions of

[the AEMA] or of any order, rule, or regulation issued under the authority

of [the AEMA], shall be suspended during the period of time and to the

extent that such inconsistency exists." § 31-9-13, Ala. Code 1975. 24

Second, it provides that all orders promulgated by the Governor during

an emergency "shall have the full force and effect of law." Id. Finally, the

AEMA gives the Governor the authority "[t]o perform and exercise such

other functions, powers and duties as are necessary to promote and

secure the safety and protection of the civilian population." § 31-9-8(a)(5),

Ala. Code 1975.

24Notice that the AEMA purports to suspend all "laws, ordinances,

rules, and regulations" inconsistent with the Executive's orders, but it does not try to suspend the Alabama Constitution itself. 85 SC-2023-0601

Thus, by granting the Executive the power to decide when to

declare an emergency, when to terminate the emergency, and to do

whatever is "necessary" to "promote" the protection of the civilian

population, while suspending duly promulgated laws that stand in its

way, the AEMA gives the Executive the power to replace the rule of law

with the rule of man with the stroke of a pen. There is no meaningful

check on this authority, which is an integral part of our constitutional

system. See The Federalist No. 51 (James Madison) 349 (Jacob Cooke,

ed., Wesleyan Univ. Press 1961) ("Ambition must be made to counteract

ambition."); see also Antonin Scalia, Structure Is Everything, in The

Essential Scalia 36-38 (Jeffrey S. Sutton & Edward Whelan, eds., Crown

Forum 2020) (arguing that constitutional guarantees are nothing more

than "parchment guarantees" if they do not "prevent the centralization

of power in one man or one party"). "Unconstrained power tempts

usurpation." Eknes-Tucker v. Governor of Alabama, 114 F. 4th 1241, ___

(11th Cir. 2024) (Pryor, C.J., concurring).

The historical record is also squarely against the broad powers that

the AEMA purports to give the Governor. The 1689 English Bill of Rights

prevented the king from suspending the laws and from issuing

86 SC-2023-0601

proclamations that are de facto legislation. Furthermore, the historical

example of the grain crisis is exactly on point. Despite his good

intentions, the king's proclamation suspending the export of grain, even

for the compelling reasons of protecting the public health and safety, was

still not within his powers. If the British Constitution did not permit " 'but

a forty days of tyranny,' " then surely the Alabama Constitution does not

permit even a mere 40 minutes of one-man rule. McConnell, supra, at

112 (citation omitted).

In modern times, we have held to the basic principle that the

executive branch may not make law, but the legislative branch may

delegate authority on how to execute it. See, e.g., Monroe v. Harris, 762

So. 2d 828, 831-32 (Ala. 2000). I have no objection to this general

framework. But without the historical background needed to interpret

this rule, nearly any Executive order -- no matter how sweeping the order

may be in its scope -- could arguably be construed not as the product of

the delegation of legislative authority but rather as the product of the

Legislature's conferring authority on how to administer the law, which is

what Jackson Hospital and its amici argue in this case. But in light of

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the Alabama Constitution's text and the history, which tell us where the

metes and bounds of executive power lie, I cannot buy their arguments.

The Alabama Constitution already authorizes the Executive to take

immediate action in some matters but not those at issue in this case.

Article V, § 131, Ala. Const. 2022, authorizes the Executive to call out the

militia and volunteer forces "to execute the laws, suppress insurrection,

and repel invasion." Thus, the People of this state have long been aware

that the Executive might need to take swift and decisive action to

confront crises of the greatest magnitude that require a military

response, and they have authorized the Executive to do so. If the People

of this state considered the kind of issue present in this case to be of the

same magnitude, then they would have amended the Alabama

Constitution to give the Executive appropriate emergency powers to

respond to it, but they did not do so. "The expression of one thing implies

the exclusion of the others (expression unius est exclusion alterius)."

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 107 (Thomson/West 2012).

Perhaps the quiet part that nobody wants to say out loud is that

many people believe that the Alabama Constitution is inadequate for

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today's exigencies. 25 I disagree. Hundreds of years of experience have

shown that the law can allow the Executive to do its job without

exceeding its constitutional sphere of authority. But even if it were true

that the Alabama Constitution was outdated, the solution is not to break

it but to amend it. As George Washington warned:

"If, in the opinion of the People, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free Governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."

George Washington, Farewell Address, in One Nation Under God 101-02

(Roy S. Moore et al., eds., 2014) (1796).

D. Application to Governor Proclamations

In this case, Governor proclamations purported to suspend normal

medical-malpractice laws, allow hospitals to adopt alternative standards

25This has become a theme in a recent series of United States Supreme Court decisions checking the power of the administrative state. See, e.g., West Virginia v. EPA, 597 U.S. 697, 732 (2022) (Gorsuch, J., concurrin g ) ("[T]he dissent seems to suggest that we should not be unduly "'concerned'" with the Constitution's assignment of the legislative power to Congress. … Echoing Woodrow Wilson, the dissent seems to think 'a modern Nation' cannot afford such sentiments."). 89 SC-2023-0601

of care, and immunize health-care providers from suit. But in light of the

text and history of the Alabama Constitution as explained above, I do not

believe that any of this can be justified as a mere administrative act. On

the contrary, when the Executive takes actions like these that override

the regular laws of this state, the Executive has crossed the line from

executing law into making law. Therefore, I believe that Governor

proclamations -- or orders -- could not have immunized Jackson Hospital

because the Executive was not authorized to do so.26

The Governor argues that the Legislature may make suspension of

the laws contingent on the finding of a fact by the Executive. However,

such an argument is foreclosed by Article I, § 21, of the Alabama

Constitution. As we held in Montgomery, "the Legislature cannot

26Since the onset of the COVID-19 pandemic, we have had two cases

in which a majority of the Justices have ruled against those who brought challenges to orders issued by the Governor in response to the COVID-19 pandemic. But in both of those cases, we were unable to get to the merits. Munza v. Ivey, 334 So. 3d 211, 218-19 (Ala. 2021) (holding that plaintiffs failed to show how they were injured by the Governor's mask mandate when there was no credible threat of enforcement); Turner v. Ivey, [Ms. SC-2022-0538, July 21, 2023] ___ So. 3d ___, ___ n.7 (Ala. 2023) (plurality opinion) (declining to reach the merits of a challenge to Governor orders because of the inadequacy of the briefing). Neither Munza nor Turner validated Governor use of emergency powers, and therefore these precedents do not pose a problem for concluding that the Executive exceeded its authority. 90 SC-2023-0601

authorize the suspension of a law by another agency." 231 Ala. at 4, 163

So. at 370. The question becomes which entity is suspending the laws:

the Legislature or the Executive? The plain text of the Alabama

Constitution requires the Legislature to be the entity that suspends the

laws. Art. I, § 21, Ala. Const. 2022. In other words, the Alabama

Constitution requires the Legislature to actively suspend the laws, not to

passively suspend the laws. Perhaps the Governor's argument could have

been sustained if the Suspension Clause had kept the words "or its

authority," which might have allowed the Legislature to delegate this

power to the Executive. But because the Alabama Constitution dropped

that phrase in 1875, this is no longer a viable option. The suspension

power belongs to the Legislature alone; therefore, the Legislature must

actively suspend the laws to invoke that power.

The Executive warns that limiting its power will result in the

Executive being unable to respond to ordinary emergencies. But that is

unlikely for two reasons. First, the AEMA is much more specific when it

comes to the Governor's authority to respond to natural disasters like

flooding, hurricanes, and tornadoes than § 31-9-8(a)(5)'s breathtakingly

broad power to do whatever is "necessary" to promote the protection of

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the public. See § 31-9-6, Ala. Code 1975 (authorizing the Governor to take

specific actions to prepare for and respond to common disasters). Second,

the text of the AEMA on that issue is sufficiently clear enough to do what

has always been permissible: giving the executive branch the authority

to decide how to execute the law without deciding what the law shall be.

See Monroe, 762 So. 2d at 831-32. As Chief Justice Marshall wrote for

the United States Supreme Court early in our republic, "important

subjects … must be entirely regulated by the legislature itself," whereas,

regarding subjects of "less interest, … a general provision may be made,

and power given to those who are to act under such general provisions to

fill up the details." Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825);

see also Biden v. Nebraska, 600 U.S. ___, ___, 143 S. Ct. 2355, 2380-81

(2023) (Barrett, J., concurring) ("[I]n a system of separated powers, a

reasonably informed interpreter would expect Congress to legislate on

'important subjects' while delegating away only 'the details.' "). Other

parts of the AEMA allow the Governor to respond to routine disasters,

but the portions of the AEMA at issue in this case are very different. See

Part II.C, supra. To take such drastic and unprecedented executive action

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as we saw in this case, the Legislature itself must have acted to

specifically and explicitly authorize it.

If a Governor believes that my view is too strict, there is a very

simple solution. When an emergency such as a pandemic hits, the

Governor could call the Legislature into a special session to decide

whether the laws should be suspended. Art. V, § 122, Ala. Const. 2022.

The Legislature could then vote to suspend the laws that the Governor

has recommended suspending. This would allow the Executive to take

quick action to respond to emergencies while still maintaining a

necessary check on its power by having the People's representatives vote.

III. The Right-to-Remedy Clause

Finally, Theresa argues that because her cause of action vested

before the Legislature passed the ACIA, applying the ACIA retroactively

to extinguish her cause of action would violate Article I, § 13, Ala. Const.

2022. The main opinion holds that Theresa had no vested cause of action,

and the special concurrence questions whether § 13 applies to wrongful-

death actions. For the reasons set forth below, I agree with Theresa.

Section 13 provides: "That all courts shall be open; and that every

person, for any injury done him, in his lands, goods, person, or reputation,

93 SC-2023-0601

shall have a remedy by due process of law; and right and justice shall be

administered without sale, denial, or delay."27 Section 13's roots go back

to the Magna Charta of 1215, which provided, in relevant part:

"46. No freeman shall be taken, or imprisoned, or disseis'd, or outlaw'd, or banished or any ways destroyed; nor will we pass upon him, or commit him to prison, unles [sic] by the legal judgment of his peers, or by the law of the land.

"47. We will sell to no man, we will deny no man, nor defer right or justice."

In his treatise on English law, Sir Edward Coke explained these

provisions of the Magna Charta by saying: "[E]very subject of this realme

[sic], for injury done to him in honis, terries, vel persona[28] … may take

his remedy by the course of law, and have justice, and right for the injury

done to him, freely without sale, fully without any deniall [sic], and

27The Attorney General's amicus brief provides an excellent historical discussion of § 13. Multiple Justices on this Court have invited this kind of briefing in recent years. See, e.g., Young Ams. for Liberty at Univ. of Alabama in Huntsville v. St. John, 376 So. 3d 460, 470-73 (Ala. 2022) (Parker, C.J., concurring in part and concurring in the result); Barnett v. Jones, 338 So. 3d 757, 766 (Ala. 2021) (Mitchell, J., concurring specially); see also Hanes v. Merrill, 384 So. 3d 616, 623 (Ala. 2023) (Cook, J., concurring specially). I appreciate the effort that the Attorney General has made to provide us with that kind of briefing, and I have found it helpful in this case.

28This means in "honors, lands, and persons."

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speedily without delay." Edward Coke, The Second Part of the Institutes

of the Laws of England 55 (1642). Coke's language eventually shaped

many of the right-to-remedy provisions in American state constitutions.

See Michael J. DeBoer, The Right to Remedy by Due Course of Law -- A

Historical Explanation and an Appeal for Reconsideration, 6 Faulkner L.

Rev. 135, 176-91 (2014).

At the time that America became a nation, the common law

provided that, "[o]nce a person was injured, the right to an 'adequate

remedy' immediately attached." Thomas R. Phillips, The Constitutional

Right to a Remedy, 78 N.Y.U. L. Rev. 1309, 1322 (2003) (quoting 3

Blackstone, Commentaries *116). Alabama adopted a right-to-remedy

provision when it became a state, and it remains in the Alabama

Constitution to this day. Art. I, § 14, Ala. Const. 1819; art. I, § 13, Ala.

Const. 2022. Because we have not amended it in any material way since

1819, it continues to carry the meaning that it had at the time it was

originally adopted. Steele v. County Comm'rs of Madison Cnty., 83 Ala.

304, 305, 3 So. 761, 762 (1888). Reading § 13 in light of its historical

background, the inescapable conclusion is that, when a person is injured,

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a right to an adequate remedy attaches immediately. Any attempt to

deprive a plaintiff of an adequate remedy is unconstitutional.

This approach to § 13 has been called the "vested rights approach."

Reed v. Brunson, 527 So. 2d 102, 114 (Ala. 1988); see also Adam J.

MacLeod & Robert L. McFarland, Foundations of Law 508 (Carolina

Academic Press 2017) (discussing what a "vested right" is). In this case,

Theresa's right in her cause of action for wrongful death accrued before

the ACIA was enacted. See Baugher v. Beaver Constr. Co., 791 So. 2d

932, 934 (Ala. 2000). Therefore, allowing the ACIA to cut off Theresa's

vested right in her cause of action would be unconstitutional.

Various theories have been advanced to get around this problem.

One amicus brief urges us to interpret § 13 according to the United States

Supreme Court's substantive-due-process precedents and subject § 13 to

rational-basis review. The Attorney General urges us to hold that

"legislation promulgated in response to an urgent need, like a public

calamity, can justify the Legislature's reasonable and proportional

exercise of the police power to impair vested rights." Attorney General's

brief at 18.

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But in my view, neither argument can be maintained in light of

what § 13 says and means. The first amicus brief mentioned above fails

to recognize that state judges have an independent duty to interpret state

constitutions instead of blindly adopting United States Supreme Court

precedent. Young Ams. for Liberty at Univ. of Alabama in Huntsville v.

St. John, 376 So. 3d 460, 470-72 (Ala. 2022) (Parker, C.J., concurring in

part and concurring in the result). This is especially true when it comes

to substantive due process, an "oxymoron" that has produced some of the

United States Supreme Court's most "notoriously incorrect decisions."

Dobbs, 597 U.S. at 336 (Thomas, J., concurring); see also Eknes-Tucker,

114 F. 4th at ___ (Pryor, C.J., concurring) ("The doctrine of substantive

due process does violence to the text of the Constitution, enjoys no

historical pedigree, and offers judges little more than shifting and

unilluminating standards with which to protect unenumerated rights.").

And while the Attorney General's position has some support from

precedents that arose on the brink of World War II, see Part II.B., supra,

the Alabama Constitution has never been amended to allow the

Legislature to make such exceptions. When faced with the choice of

following the Constitution or following precedent that cannot be justified

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in light of the Constitution's text or history, our oath requires us to follow

the Constitution. See Hanes v. Merrill, 384 So. 3d 616, 624 n.5 (Ala. 2023)

(Parker, C.J., concurring in part and concurring in the result); Young

Ams. for Liberty, 376 So. 3d at 471-72 (Parker, C.J., concurring in part

and concurring in the result).

The special concurrence postulates that wrongful-death actions

might not be protected by § 13 because the objective of our wrongful-

death statute is not to compensate a victim but, rather, to deter the

taking of human life. However, our precedents holding that only punitive

damages are available in wrongful-death actions are premised on the

belief that the value of human life cannot be measured in dollars.

Alabama Power Co. v. Turner, 575 So. 2d 551, 554 (Ala. 1991). Moreover,

there are two goals in a wrongful-death action: deterrence and

punishment. Springhill Hosps., Inc. v. West, 388 So. 3d 648, 672 (Ala.

2023). While deterrence cannot provide a remedy for a victim,

punishment can. Punishment cannot bring the victim back, but it can

vindicate the value of the victim's life by making the wrongdoer pay for

his conduct. I believe this is how the word "remedy" would have been

interpreted in 1819 when Alabama adopted its original right-to-remedy

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provision. See Webster (1828) at 681 (defining "remedy" as "[t]hat which

counteracts an evil of any kind …. Civil government is the remedy for the

evils of natural liberty."). Therefore, I am unpersuaded that the remedy

of punitive damages renders wrongful-death actions unprotected by § 13.

IV. Conclusion

From the days of the common law until the World War II era, it

was universally understood that the Executive did not have emergency

powers to change, suspend, or break the law. This was so important that

the English Bill of Rights addressed this issue before all other issues,

and neither the United States Constitution nor the Alabama

Constitution changed that framework. Yet in 2020, nearly nobody

questioned whether the Executive had emergency powers; it was just

questioned whether the Executive had gone too far with them. Perhaps

this is because nearly nobody who lived through the COVID-19

pandemic had grown up in an era when it was not commonly assumed

that the Executive sometimes had to take drastic emergency actions for

which the law could not account. But in light of the historical analysis

above, it is clear that the People of Alabama never gave the Executive

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the kind of authority that the Executive purported to exercise in this

case.

I have no doubt that Alabama's Governor, like many American

governors, acted quickly during the COVID-19 pandemic in a good-faith

effort to save lives. The Executive also eventually declared the

emergency over on its own accord. However, the issue is whether the

AEMA authorized the Executive to immunize Jackson Hospital from

Theresa's cause of action. For the reasons stated above, I believe that

the answer is no.

Perhaps recognizing the danger that could arise if the courts grant

too much deference to the Executive during an emergency, the main

opinion attempts to limit its holding to the circumstances of this case.

However, as the example of the British grain shortage shows, allowing

the Constitution to be broken, even slightly to meet a pressing need, is

unacceptable. Doing so sets a precedent that could have disastrous

consequences later.29 While I am grateful that the main opinion's

29Even the ancients warned that usurpation often gains ground through creeping instead of lurching. "All of this has become a thing of habit …. Custom has made us callous," Cicero warned as the Roman Republic was about to collapse into a permanent dictatorship. Marcus Tullius Cicero, Second Philippic Oration Against Marcus Antonius in 100 SC-2023-0601

holding is limited to the particular circumstances of this case, my fear is

that this precedent will allow the line to be crossed a little further in the

next case, and then a little further in the next case, and so on and so

forth -- until the line is gone completely. "Liberty once lost is lost forever.

When the People once surrender their share in the Legislature, and their

Right of defending the Limitations upon the Government, and of

resisting every Encroachment upon them, they can never regain it."

Letter of John Adams to Abigail Adams, July 7, 1775.

Perhaps the Court will eventually reconsider this case or will find

ways to distinguish it when similar matters arise in the future. In the

meantime, my hope is that the People will realize how much power the

Executive has claimed and will take appropriate steps to get the

Legislature to restrain it while they have the chance. See Joseph Postell,

Emergency Powers and State Legislative Capacity During the COVID-

19 Pandemic, 15 N.Y.U. J. L. & Liberty 628, 652-57 (2022) (proposing

Cicero Orations: Philippics 1-6 161 (Loeb Classical Library 2009) (44 B.C.). The people of Rome failed to be vigilant against the gradual usurpation of their liberties until they were completely gone. We should not make the same mistake. 101 SC-2023-0601

various legislative amendments to state emergency acts after the

COVID-19 pandemic ended).

Because the People of Alabama have never amended the Alabama

Constitution to give the executive branch the kind of power that our

history so clearly confirms belongs to the legislative branch alone, I

respectfully dissent.