author:
SMITH, Justice.
     WOODALL, Justice

text:
    Ex parte CITY OF TUSKEGEE, John Moon, Theodore Moon, Willie Dean Ware, and Adrienne Baker. (In re Patricia Arnold v. City of Tuskegee, John Moon, Theodore Moon, Willie Dean Ware, and Adrienne Baker).
    1040062.
    Supreme Court of Alabama.
    Dec. 30, 2005.

      N. Gunter Guy, Jr., and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitioners.
    Phillip D. Segrest, Jr., of Segrest, Seg-rest & Weldon, Tallassee, for respondent.
   SMITH, Justice.

The City of Tuskegee, John Moon, Theodore Moon, Willie Dean Ware, and Adrienne Baker (collectively “the petitioners”), the defendants below, petition for a writ of mandamus directing Judge Howard F. Bryan of the Macon Circuit Court to grant their motion to stay discovery and their motion for a summary judgment on the basis that they are entitled to immunity. We grant the petition in part and deny it in part.

Facts and Procedural History

Patricia Arnold was arrested by the City of Tuskegee Police on October 17, 1995. She was charged with harassment and released on her personal recognizance. Arnold made an appearance before the Tuskegee municipal court on October 26, 1995. After Arnold appeared before the municipal court, records show that Judge Robert Thompson of the Tuskegee Municipal Court placed the case against Arnold “on hold.” The municipal court did not make a final determination as to the merits of the harassment charge and did not issue a final order in the case. The harassment case against Arnold remained “on hold,” and the municipal court never placed the case back on the court’s docket. Arnold did not receive any further notice or a summons in relation to the harassment case.

The petitioners claim that in 1998 Michael Ricks, the chief of police for the City of Tuskegee, asked the municipal court clerk’s office to update the “writ” files. Willie Dean Ware, the clerk of the municipal court, testified that when he realized that the municipal court had many pending or unresolved “writ” files, he instructed municipal court personnel to “clean up” those files. Adrienne Baker, a municipal magistrate for the City of Tuskegee, stated that in the process of “cleaning up” the files, she issued a capias warrant for Arnold’s arrest for “fail[ure] to appear before the court as ordered” on the harassment charge that had been pending against Arnold since 1995. Although it appears from the record that Arnold never “failed to appear before the court as ordered,” Baker stated in an affidavit that she decided to issue the warrant to resolve the pending charge against Arnold because she believed that she could not “resolve a pending criminal case until a Judge has made and issued a final order in the matter.”

On May 3, 2001, Arnold was present in the Tuskegee Municipal Court to serve as a witness in a case unrelated to the harassment case. John Moon, a police officer for the City of Tuskegee, stated in an affidavit in Arnold’s case that he was at the municipal court complex on May 3 and that a municipal court employee notified him that Arnold had an outstanding warrant for her arrest. John Moon also stated in the affidavit that after he was notified of the existence of the warrant, he called the Tuskegee Police Department and spoke with his brother, Theodore Moon, to verify the existence of an outstanding warrant for Arnold’s arrest. Theodore Moon, a police officer for the City of Tuskegee and the patrol commander on duty at that time, testified in an affidavit that he told John Moon that a warrant for Arnold had been located. John Moon also stated that he left the courthouse, picked up the warrant from police department headquarters, returned to the municipal courthouse, and arrested Arnold.

After Arnold was arrested, she signed a statement indicating that she had appeared in court in 1995 on the harassment charge but that the charges against her had been dropped. Arnold was released on bond later that day. On May 17, 2001, Judge Albert Bulls of the municipal court dismissed the harassment charge against Arnold and ordered that her cash bond be returned.

On September 20, 2001, Arnold sued the City of Tuskegee and other fictitiously named parties in the Macon Circuit Court. After some preliminary written discovery, Arnold amended her complaint to add a federal § 1983 claim. The action was then removed to the United States District Court for the Middle District of Alabama.

On October 24, 2002, Arnold filed a notice of dismissal without prejudice of her federal claim under Rule 41 of the Federal Rules of Civil Procedure. On December 5, 2002, Arnold refiled her complaint in the Macon Circuit Court alleging only state-law claims against the petitioners. The individual defendants were sued in both their individual and official capacities. Arnold alleges that she was falsely arrested and falsely imprisoned, and she seeks recovery based upon two theories. First, Arnold alleges that the false imprisonment and false arrest were the result of the carelessness, negligence, and unskillfulness of the petitioners. In the alternative, Arnold alleges that she suffered damages from false imprisonment and false arrest as a result of the bad faith, malice, or willfulness of the petitioners. More specifically, Arnold alleges that the outstanding warrant on which her arrest was based may have actually been “fabricated” or “concocted” subsequent to her arrest.

Arnold filed and served interrogatories and requests for document production with her complaint. However, the petitioners never responded to these discovery requests. In February 2003, Arnold moved to compel discovery, and she noticed the depositions of the individual defendants. On February 27, 2003, the petitioners filed a motion to stay discovery pending the trial court’s ruling on a motion for a summary judgment. The petitioners ultimately filed a motion for a summary judgment on May 6, 2003. On June 24, 2003, a hearing was held on the motion to stay discovery, and on September 1, 2004, the trial court entered an order denying the motion to stay discovery. The trial court found that “there are substantial issues concerning immunity” that “cannot be adequately addressed pending the completion of a substantial amount of discovery.” The trial court did not rule on the summary-judgment motion. The petitioners then filed this petition for a writ of mandamus asking this Court to direct the trial court to grant their motion to stay discovery and their motion for a summary judgment.

Standard of Review

“A writ of mandamus is an extraordinary form of relief.” Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810 (Ala.2002). “[A] writ [of mandamus] will issue only upon a showing of ‘(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.’ ” Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).

Discussion

“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000). The petitioners argue that because they are entitled to absolute immunity this Court can properly review whether a summary judgment is proper. However, Arnold alleges that this petition is “premature” because the trial court has not yet ruled on the petitioners’ summary-judgment motion.

In Ex parte Alabama Department of Mental Health & Mental Retardation, the plaintiff sued the Alabama Department of Mental Health and Mental Retardation (“the department”), its commissioner, and certain employees, alleging negligence. The defendants filed a motion to dismiss, which the trial court denied. They then petitioned for a writ of mandamus, asking this Court to direct the trial court to dismiss the action on the ground of immunity.

We held that the motion to dismiss was due to be granted as to the claims brought against the department because, as an agent of the State of Alabama, the department was immune from suit under Ala. Const. 1901, § 14. Department of Mental Health, 837 So.2d at 810-11. The Court also held that the motion to dismiss was due to be granted as to the claims brought against the commissioner in her official capacity because she was entitled to immunity from suit under Ala. Const. 1901, § 14. Department of Mental Health, 837 So.2d at 811. However, the Court held that the petition for the writ of mandamus was not due to be granted as to the claims brought against the commissioner in her individual capacity. 837 So.2d at 814. The Court stated:

“[The respondent] notes that no discovery has been conducted in this case, and she argues that the Department’s petition for the writ of mandamus is premature .... [Njormally the determination as to the existence of [an immunity-based] defense should be reserved until the summary-judgment stage, following appropriate discovery....
“The claims against [the petitioner] that we have determined are made against her in her individual capacity are fact intensive.... After the parties have had the opportunity to conduct discovery, [the petitioner] will have the opportunity to seek a summary judgment on the ground that she is entitled to State-agent immunity.”

Department of Mental Health, 837 So.2d at 813-14.

As discussed below, some of Arnold’s claims in the instant case, like the claims brought against the commissioner in her individual capacity in Department of Mental Health, are “fact intensive.” Only limited discovery was conducted in the action originally filed by Arnold, and no discovery has been conducted in this case because the petitioners have not responded to Arnold’s discovery requests. As to Arnold’s claims that are “fact intensive,” the petition for the writ of mandamus is premature. It is possible that after discovery Arnold could present sufficient evidence to overcome a summary-judgment motion as to these claims.

Further, in Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), the defendants petitioned this Court for a writ of mandamus directing the trial court to dismiss the claims against them on the grounds of State-agent immunity. This Court held that

“ ‘[i]t is not for this court to determine, based on the complaint, whether the plaintiff will ultimately prevail, but only if he may possibly prevail.’ ... It is conceivable that [the plaintiffs] could prove facts that would show that [the defendants] failed to discharge duties pursuant to a checklist or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law.”

775 So.2d at 178 (quoting Patton v. Black, 646 So.2d 8, 10 (Ala.1994)). See also Newman v. Bridgestone/Firestone N. Americantire, LLC, 274 F.Supp.2d 1289, 1291 (S.D.Ala.2003) (“In the earlier Butts case, the Alabama Supreme Court made it abundantly clear that such issues as State-agent immunity could only be decided after the parties were given an opportunity to conduct discovery and presented same in a motion for summary judgment.”); and Ryan v. Hayes, 831 So.2d 21, 32 (Ala.2002) (“[B]ut where issues of fact unresolved at the trial level preclude recognition of the [immunity] defense at that stage, we have emphasized the possibility of a later-stage interim review. In that regard we have explained that once the parties have had the opportunity to conduct discovery, the defendants would have the opportunity to seek a summary judgment on the ground that they were entitled to State-agent immunity. ...”).

In Ex parte Alabama Department of Forensic Sciences, 709 So.2d 455 (Ala.1998), the plaintiff sued the Alabama Department of Forensic Sciences and the State medical examiner. The defendants filed a motion to dismiss arguing that they were entitled to sovereign and qualified immunity. The defendants also moved to stay discovery pending the trial court’s ruling on the motion to dismiss. The trial court denied both of the defendants’ motions. The defendants again moved to dismiss the claims against them and moved for a stay of discovery pending a ruling on the second motion to dismiss. The trial court denied the motion to stay discovery, but the court had not yet ruled on the second motion to dismiss when the defendants filed a petition for a writ of mandamus with the Court of Civil Appeals. The defendants asked the Court of Civil Appeals to direct the trial court to grant their motion to dismiss. The Court of Civil Appeals denied the writ, and the defendants petitioned this Court for a writ of mandamus.

This Court granted the petition for the writ of mandamus directing the trial court to dismiss the claims against the defendants based on sovereign and qualified immunity. The Court’s grant of the writ in Department of Forensic Sciences was not premature because the determination whether the defendants had immunity was purely a question of law. Department of Forensic Sciences, 709 So.2d at 457. Under the Alabama Constitution, the State and its departments are immune from suit. Ala. Const. 1901, § 14. Therefore, the claims against the State or against the Department of Forensic Sciences were due to be dismissed without any factual inquiry into the alleged wrongful conduct. In addition, the Court held that the State medical examiner was entitled to qualified immunity or “substantive immunity.” Department of Forensic Sciences, 709 So.2d at 458. The Court held that the medical examiner was entitled to qualified immunity if his actions were discretionary rather than ministerial. Department of Forensic Sciences, 709 So.2d at 458. The Court stated that, “[w]hether a state employee’s action was discretionary or merely ministerial is a question of law to be decided by the trial court.” 709 So.2d at 458. Therefore, although no discovery had taken place and although the trial court had not yet ruled on the defendants’ second motion to dismiss, the writ was not premature in Department of Forensic Sciences because the issue whether the claims should be dismissed on the basis that the defendants were immune from suit was purely a question of law rather than fact. 709 So.2d at 458.

Like the claims in Department of Forensic Sciences, some of Arnold’s claims also involve questions of law, rather than questions of fact. As to these claims, the petition for the writ of mandamus is not premature. Because these claims involve questions of law, further discovery would be unnecessary to resolve these claims. However, some of Arnold’s other claims in this case turn on factual determinations. As to those claims that are “fact intensive,” the petition for the writ of mandamus must be denied as premature.

State-agent Immunity and the Cranman Restatement

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court set out a new test for determining when a State employee is entitled to State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405. Although Cranman was a plurality decision, the test for determining State-agent immunity as restated in Cranman was adopted by this Court in Butts, 775 So.2d at 177-78 (“We today adopt this new test suggested in Cran-man.”).

A. John Moon and Theodore Moon

Under Alabama law, “[ejvery peace officer ... shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.” Ala.Code 1975, § 6-5-338(a). Before the adoption of the test enumerated in Cranman, this Court determined whether a peace officer was entitled to immunity under § 6-5-338(a) by examining whether the officer was engaged in a “discretionary function.” Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala.1998); Ex parte City of Montgomery, 758 So.2d 565, 569-70 (Ala.1999); Williams v. Crook, 741 So.2d 1074, 1076 (Ala.1999); and Montgomery v. City of Montgomery, 732 So.2d 305, 311 (Ala.Civ.App.1999). Discretionary acts are defined as “ ‘those acts to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances.’ Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996).” Ex parte City of Montgomery, 758 So.2d at 569. However, discretionary-function immunity under § 6-5-338(a) did not apply when “the officer’s conduct was so egregious as to amount to willful or malicious conduct or conduct engaged in in bad faith.” Ex parte City of Gadsden, 781 So.2d 936, 938 (Ala.2000).

The restatement of State-agent immunity as set out in Cranman, 792 So.2d at 405, now governs the determination of whether a peace officer is entitled to immunity under § 6-5-338(a). Swan v. City of Hueytown, 920 So.2d 1075, 1078 (Ala.2005); Hollis v. City of Brighton, 885 So.2d 135, 143 (Ala.2004) (“Whether a qualified peace officer is due § 6-5-338(a) immunity is now judged by the restatement of State-agent immunity articulated by Ex parte Cranman ....”); and Howard v. City of Atmore, 887 So.2d 201, 203 (Ala.2003) (“Thus, we will address the applicability of peace-officer immunity under the principles set forth in Cranman.”). “Since Cranman, we analyze [§ 6-5-338(a)] immunity issues in terms of ‘State-agent’ immunity, rather than ‘under the dichotomy of ministerial versus discretionary functions.’ ” Howard, 887 So.2d at 203 (quoting Ex parte Hudson, 866 So.2d 1115, 1117 (Ala.2003)).

This Court has also addressed the difference between the language of § 6-5-338(a) and the language of Cranman describing the conduct for which immunity is available. Section 6-5-338(a) states that an officer is immune from “tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties” (emphasis added). In contrast, category (4) of the Cranman ■standard refers to “exercising judgment in the enforcement of the criminal laws of the State” (emphasis added). The Court has addressed this difference and stated:

“We notice a difference between certain critical language in the statute, § 6-5-338(a), and certain critical language in the Cranman restatement describing the conduct immunized. That is, the statute refers to ‘conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties’ while immune category (4) of the Cranman restatement refers to conduct ‘exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons.’ ”

Hollis, 885 So.2d at 143-44. The Court had the opportunity to reconcile this conflict in Swan. In Swan, we stated that “[i]mmunity from tort liability must arise out of the peace officer’s performance of ‘any discretionary function within the line or scope of his or her’ law-enforcement duties.” 920 So.2d at 1078 (quoting § 6-5-338(a), Ala.Code 1975). The Court then set out the Cranman standard and explained that since the Cranman test was adopted we analyze immunity issues under § 6-5-338(a) in terms of “the principles set forth in Cranman.” Swan, 920 So.2d at 1078. Explaining the Cranman standard, the Court stated: “Thus, the Cran-man standard answers in the affirmative the question whether arresting a person is an exercise of judgment — a ‘discretionary function’ — and therefore clothes the officer in State-agent immunity.” 920 So.2d at 1079. Therefore, conduct involving the “exercise of judgment in the enforcement of criminal laws” under the Cranman standard is also a “discretionary function” under § 6-5-338(a), Ala.Code 1975. Swan, 920 So.2d at 1082.

We also note that even before the Cranman standard was adopted, this Court defined a “discretionary function” as an act that “requir[es] exercise in judgment.” Ex parte City of Montgomery, 758 So.2d at 569. Category (4) of the Cranman standard lists one type of function that is “discretionary” within the meaning of § 6-5-338(a) — arresting or attempting to arrest a person. In our analysis of peace-officer immunity under § 6-5-338(a), we must keep in mind that the Cranman standard is “a restatement of the law of immunity, not a statute.” Howard, 887 So.2d at 206. In addition, the Cranman standard “states categories, but does not purport to set forth an exhaustive list of activities falling within each category.” Howard, 887 So.2d at 206.

1. Claims based upon carelessness, negligence, and unskillfulness

In Swan, a police officer for the City of Hueytown stopped a vehicle in which the plaintiff, Michael Swan, was a passenger. During the stop, the officer radioed a police dispatcher and asked the dispatcher to check the National Crime Information Center database to determine whether the driver or Swan had any outstanding warrants. The dispatcher informed the officer that the City of Birmingham had a possible outstanding warrant on Swan. The officer then instructed the dispatcher to contact the City of Birmingham to confirm the existence of the warrant. The officer was informed by the dispatcher that the City of Birmingham had confirmed the existence of two outstanding warrants for Swan’s arrest. The evidence later indicated that the outstanding warrants were for a “Michael Swann” rather than the plaintiff, “Michael Swan.” Swan was arrested, and when it was determined that he had no outstanding warrants for his arrest, he was released.

Swan sued the City of Hueytown claiming that he had suffered harm as a result of the officer’s failure to determine his true identity. The City of Hueytown argued that it was entitled to immunity under § 6-5-338. In affirming the summary judgment for the City of Hueytown, this Court held that under both § 6-5-338 and the standard set out in Cranman, the officer was engaged in a “discretionary function” requiring an “exercise in judgment” when he arrested Swan and, therefore, was entitled to immunity. Swan, 920 So.2d at 1079. The Court also held that “arrests and attempted arrests are generally classified as actions requiring an officer to exercise judgment.” Swan, 920 So.2d at 1079.

Arnold alleges that she was falsely imprisoned and falsely arrested as the result of the negligence, carelessness, and unskillfulness of John Moon and Theodore Moon. The petitioners, on the other hand, argue that John Moon and Theodore Moon are entitled to immunity under 6-5-338(a). The facts of this case are similar to the facts of Swan. John Moon and Theodore Moon were “arresting or attempting to arrest” Arnold when they confirmed the existence of a warrant for her arrest. Therefore, under Cranman and Swan, this action is a discretionary function involving the exercise of judgment. See Swan, 920 So.2d at 1079 (“Thus, the Cranman standard answers in the affirmative the question whether arresting a person is an exercise of judgmenU^a ‘discretionary function’ — and therefore clothes the officer in State-agent immunity.”). Once the existence of the outstanding warrant was confirmed, based on the information provided by Theodore Moon John Moon decided to pick up a copy of the warrant and to arrest Arnold. Under Swan, the arrest involved an exercise of judgment within the meaning of the Cranman test. Swan, 920 So.2d at 1079. Therefore, John Moon and Theodore Moon are entitled to immunity because they were engaged in an “arrest or attempted arrest,” which is a discretionary function requiring the exercise of judgment. See City of Birmingham v. Sutherland, 834 So.2d 755, 762 (Ala.2002) (“Allegations of negligence are not sufficient to remove the immunity the City is provided for [an officer’s] performance of a discretionary function.”) (citing Ex parte City of Montgomery, 758 So.2d at 570). Therefore, as to the claims alleging negligence, carelessness, and unskillfulness that were brought against John Moon and Theodore Moon, we grant the petition for the writ of mandamus and order the trial court to stay discovery and direct the trial court to conduct a hearing on the summary-judgment motion as to the claims against them based on carelessness, negligence, and unskillfulness.

2. Claims based upon bad faith, malice, or willfulness

Peace officers are not entitled to absolute immunity under § 6-5-338(a); rather, immunity from tort liability under § 6-5-338(a) “is withheld if an officer acts with willful or malicious intent or in bad faith.” Borders v. City of Huntsville, 875 So.2d 1168, 1178 (Ala.2003). See also Gary v. Crouch, 867 So.2d 310, 313 (Ala.2003) (“[W]here a municipal police officer is engaged in a discretionary function with respect to the conduct complained of, he or she would be immune under § 6-5-338, ‘unless his [or her] actions were conducted with willful or malicious intent or in bad faith.’ ”) (quoting Ex parte City of Montgomery, 758 So.2d at 570). Cf. Cranman, 792 So.2d at 405 (holding that a State agent is not entitled to immunity “when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law”).

Arnold alleges that John Moon and Theodore Moon acted in bad faith in arresting her in that they may have “fabricated” or “concocted” the warrant after she was arrested. The petitioners argue that John Moon and Theodore Moon are immune from liability as to this claim under § 6-5-338(a). If John Moon and Theodore Moon acted in bad faith, with malice, or with willfulness in arresting Arnold, however, they are not entitled to immunity under § 6-5-338(a). See Borders, 875 So.2d at 1178. Cf. Swan, 920 So.2d at 1081 (holding that a municipal police officer was entitled to immunity under § 6-5-338(a) although he arrested the wrong person, because the plaintiff did not allege that his arrest was made in bad faith, with malice, or willfully).

John Moon stated that Arnold was present at the municipal court complex when the employee in the clerk’s office notified him that there was an outstanding warrant for Arnold’s arrest. In contrast, Arnold claims John Moon could not have verified the existence of the warrant as he claimed he did in his affidavit because she was arrested immediately upon entering the foyer of the municipal court complex. Arnold also alleges that John Moon refused to let her see the warrant when he arrested her. In addition, Arnold alleges that after she was released from jail she returned to the municipal court complex to obtain a copy. However, Arnold states that no one in the municipal court clerk’s office could provide her with a copy. Arnold further states that she did not actually receive a copy of the warrant until after she filed her initial complaint in the state court.

Lastly, Arnold alleges that her arrest may have been made in bad faith or that the warrant may have been “fabricated” or “concocted” by John Moon or Theodore Moon because of a previous dispute Arnold had had with Theodore Moon. In 1996, Arnold’s granddaughter was severely injured and suffered permanent brain damage while she was in the care of a babysitter, and Theodore Moon was assigned to investigate the case. No arrests were made, and Arnold believed that Theodore Moon had failed to properly investigate the cause of her granddaughter’s injuries. Arnold complained to the district attorney and the attorney general’s office about Theodore Moon’s work on the case. Therefore, Arnold alleges, her arrest may have been made in bad faith by Theodore Moon because of their previous dispute.

The petitioners have no clear legal right to the order sought as to Arnold’s claims that John Moon and Theodore Moon acted with malice and bad faith in arresting her because it is possible that Arnold could prove facts showing that the officers are not entitled to immunity. See Butts, 775 So.2d at 178 (“ ‘[i]t is not for this court to determine, based on the complaint, whether the plaintiff will ultimately prevail, but only if he may possibly prevail.’ ... It is conceivable that [the plaintiffs] could prove facts that would show that [the petitioners] ... acted willfully, maliciously, fraudulently, [or] in bad faith ....”) (quoting Patton v. Black, 646 So.2d 8, 10 (Ala.1994)). See also Burdeshaw v. Snell, 350 F.Supp.2d 944, 952-53 (M.D.Ala.2004) (holding that on the basis of the complaint “there is — or can be — a factual basis which divests [the defendant police officer] of his statutory immunity” because the officer arrested the plaintiff for possession of drugs but failed to investigate the plaintiffs claim that he had a valid prescription for the drugs); and Walker v. Briley, 140 F.Supp.2d 1249, 1263 (N.D.Ala.2001) (denying summary-judgment motion filed by a police officer who argued that he was immune under § 6-5-338(a) from a claim of false arrest because the evidence suggested that the officer “had no grounds to believe [the plaintiff] had committed any offense whatsoever” and a reasonable jury could determine that the arrest was in bad faith).

The determination whether John Moon and Theodore Moon are entitled to immunity as to Arnold’s claim that the officers acted willfully, maliciously, or in bad faith is dependent upon the specific facts of this case. After discovery, the trial court can determine whether Arnold can produce sufficient evidence showing that the officers acted in bad faith, with malice, or willfully so that a summary judgment on the basis of immunity under § 6-5-338 should not be entered. See Department of Mental Health, 837 So.2d at 814 (“After the parties have had the opportunity to conduct discovery, [the petitioner] will have the opportunity to seek a summary judgment on the ground that she is entitled to State-agent immunity.”). Because there is no clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the summary-judgment motion as to the claim that John Moon and Theodore Moon acted in bad faith or with malice when they arrested Arnold, the petition for the writ of mandamus is due to be denied as to this claim.

B. Willie Dean Ware and Adrienne Baker

Clerks of court and magistrates like Ware and Baker are afforded judicial immunity for their “discretionary judicial acts.” City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1133 (Ala.2000) (citing Almon v. Gibbs, 545 So.2d 18, 20 (Ala.1989)). Judicial-immunity cases decided both before and after the Cranman restatement was adopted provide guidance in this case.

Before the adoption of the Cranman restatement, this Court determined whether clerks and magistrates were entitled to judicial immunity by first analyzing whether the clerk or magistrate was acting within his or her official capacity, and secondly, whether the act was discretionary or administrative in nature. Almon, 545 So.2d at 20. In Almon, a district court clerk was sued for failing to issue a warrant. The clerk decided not to issue the warrant after determining that there was a lack of probable cause for arrest. This Court has held that

“where a clerk of court is performing a duty that requires the exercise of judgment and discretion in its performance, it is considered a judicial act entitling the clerk to judicial immunity. This absolute immunity for acts within the jurisdiction of the judicial officer is extended even where the officer acts in error, maliciously, or in excess of his authority.”

545 So.2d at 20. We held that the court clerk was entitled to immunity because the determination whether probable cause to issue a warrant existed involved an exercise of discretion. Almon, 545 So.2d at 20.

Since the adoption of the Cranman restatement, this Court analyzes whether a magistrate or court clerk is entitled to judicial immunity for official acts by determining whether the magistrate or clerk “was required to ‘exercise judgment’ in the execution of the task.” Bayou La Batre, 785 So.2d at 1133 (quoting Cranman, 792 So.2d at 405). In Bayou La Batre, a city court magistrate attempted to fax a warrant-recall order to the city police department. The magistrate placed the recall order “upside down in the fax machine so that she in fact transmitted the back of the order — a blank page — rather than the recall order itself.” Bayou La Batre, 785 So.2d at 1130. The police never received the recall order, and the plaintiff was arrested because the police believed that there was an outstanding warrant for the plaintiffs arrest.

The plaintiff sued the City of Bayou La Batre, alleging false arrest and false imprisonment. The city argued that because the magistrate enjoyed judicial immunity the city was also immune from liability as to claims based on the magistrate’s conduct. This Court held that magistrates and clerks are officials “with a blend of judicial and administrative duties” and that, under Cranman, they are entitled to judicial immunity when they are “required to ‘exercise judgment’ in the execution of a task.” Bayou La Batre, 785 So.2d at 1133 (citing Cranman, 792 So.2d at 405). We held that, under the Cranman restatement, the magistrate was not entitled to judicial immunity because she was performing “an administrative duty that did not involve the exercise of judgment” when she faxed the warrant-recall order to the police department. Bayou La Batre, 785 So.2d at 1133. In addition, this Court distinguished the acts of the court magistrate in faxing the warrant-recall order upside down from the acts of the court clerk in Almon. We stated:

“This Court held [in Almon ] that the determination of whether probable cause existed to issue a warrant is a judicial act, an act that properly affords judicial immunity. [545 So.2d at 20.] The situation with which we are confronted today is whether a magistrate should be protected by judicial immunity for failure to recall a warrant.”

Bayou La Batre, 785 So.2d at 1133.

The petitioners argue that their petition is due to be granted because, they say, Ware and Baker have judicial immunity. Baker, in her affidavit, stated that Ware instructed her to “clean up any pending or unresolved files.” In doing so, Baker apparently made an error in issuing the capi-as warrant for Arnold’s arrest for failure to appear. Under the holding in Bayou La Batre, the Cranman test is applied to determine whether Baker and Ware are entitled to judicial immunity. 785 So.2d at 1133. The petitioners state that Baker and Ware’s decision to issue the warrant for Arnold’s arrest “required the exercise of judgment and discretion in issuing a warrant to resolve a pending file.”

Despite this argument, the evidence before us does not indicate what steps Baker and Ware took before issuing the warrant for Arnold’s arrest. Baker’s and Ware’s affidavits do not describe how they made the decisions to “clean up” the court files and to issue the warrant for Arnold’s arrest. At this point in the proceeding, it is unclear whether Ware’s instruction to “clean up” the files and Baker’s actions in “cleaning up the files” were discretionary-type actions that involved the “exercise of judgment” required for immunity under Cranman We are unable to determine whether Baker’s and Ware’s actions are like the administrative act of the magistrate in Bayou La Batre, 785 So.2d at 1129 (faxing the warrant-recall order upside down) or the discretionary-type action of the court clerk in Almon, 545 So.2d at 20 (determining whether probable cause existed to issue a warrant). Therefore, at this point in the proceeding, Baker and Ware have not established a clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the summary-judgment motion on the basis of judicial immunity.

C. City of Tuskegee

Arnold alleges that the City of Tuskegee is vicariously liable for the negligence, carelessness, and unskillfulness of John Moon and Theodore Moon. The petitioners argue that because the officers are immune from liability under § 6-5-338(a) the City is immune from liability under § 6-5-338(b). Section § 6-5-338(b) provides:

“This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. No immunity is extended hereby to any private nongovernmental person or entity, including any private employer of a peace officer during that officer’s off-duty hours.”

“It is well established that, if a municipal police officer is immune pursuant to § 6~ 5-338(a), then, pursuant to § 6-5-338(b), the city by which he is employed is also immune.” Howard, 887 So.2d at 211. Because we have held that John Moon and Theodore Moon are immune from Arnold’s claim alleging negligence, unskillfulness, or carelessness, the City is also immune from liability as to this claim by virtue of § 6-5-338(b). Therefore, the petition for a writ of mandamus ordering the trial court to stay discovery is due to be granted as to the claims against the City based upon the negligence, carelessness, and unskillfulness of John Moon and Theodore Moon, and we direct the trial court to conduct a hearing on the City’s motion for a summary judgment as to these claims.

Arnold also claims that the City of Tuskegee is vicariously liable for the bad faith of John Moon and Theodore Moon in allegedly “concocting” the warrant. The City argues that it is immune from liability as to these claims under Ala.Code 1975, § 11-47-190. Section 11-47-190 provides that a municipality is immune from tort liability “unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty.” This statute limits a municipality’s liability for the acts of its agents to those acts that are negligent, careless, or unskillful. Section 11-47-190 provides a municipality immunity from liability for the acts of its agents that are carried out in bad faith or with malice. Borders, 875 So.2d at 1183 (quoting Ex parte City of Gadsden, 718 So.2d 716, 721 (Ala.1998)). The City has a clear legal right to an order directing the trial court to stay discovery as to Arnold’s claims that are based upon the intentional conduct of John Moon and Theodore Moon because a municipality cannot be held liable for the intentional torts of its agents. Therefore, we grant the petition for the writ of mandamus ordering the trial court to stay discovery as to the claims based upon the bad faith or malicious acts of John Moon and Theodore Moon, and we direct the trial court to hold a hearing on the City’s motion for a summary judgment as to these claims.

Arnold also alleges that the City of Tuskegee is vicariously liable for the actions of Baker and Ware. Because we have held that, at this point in the proceeding, Baker and Ware were not entitled to judicial immunity as to Arnold’s claims of negligence, unskillfulness, or carelessness against them, Arnold has stated a cause of action against the City of Tuskegee under § 11-47-190. See Franklin, 670 So.2d at 852 (“[W]here a plaintiff alleges a factual pattern that demonstrates ‘neglect, carelessness, or unskillfulness’ the plaintiff has stated a cause of action under Ala.Code 1975, § 11-47-190.”). The City of Tuskegee does not have a clear legal right to an order instructing the trial court to stay discovery and conduct a hearing on the summary-judgment motion as to this claim because it is possible that Arnold could discover facts demonstrating that Baker and Ware are not immune from liability by virtue of judicial immunity. Accordingly, we deny the petition for the writ of mandamus as to this claim.

The City of Tuskegee does have a clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the motion for a summary judgment as to the claim that it is vicariously liable for the acts of Baker and Ware that were allegedly carried out with bad faith or malice. As stated earlier in this opinion, under § 11-47-190, a municipality is immune from liability for the intentional torts of its agents. Borders, 875 So.2d at 1183 (quoting City of Gadsden, 718 So.2d at 721). The City cannot be held hable for any intentional torts on the part of Baker and Ware. Therefore, the City’s petition for a writ of mandamus directing the trial court to stay discovery as to the claim that it is vicariously liable for the alleged intentional torts of Baker and Ware is due to be granted, and we direct the trial court to conduct a hearing on the summary-judgment motion as to this claim.

Conclusion

Theodore Moon and John Moon have demonstrated a clear legal right to an order directing the trial court to stay discovery as to the claims alleging that they acted with negligence, carelessness, or unskillfulness. Accordingly, we direct the trial court to grant the petitioner’s motion to stay discovery, and we direct the trial court to conduct a hearing on the motion for a summary judgment as to these claims. However, at this stage in the proceedings, Theodore Moon and John Moon have not demonstrated a clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the summary-judgment motion as to Arnold’s claims alleging that they acted with bad faith, malice, or willfulness. Therefore, we deny the petition for a writ of mandamus as to these claims.

At this stage in the proceedings, Baker and Ware have not demonstrated a clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the motion for a summary judgment as to any of the claims brought against them. Accordingly, we deny the petition for a writ of mandamus as to the claims brought against Baker and Ware.

The City of Tuskegee has demonstrated a clear legal right to an order directing the trial court to stay discovery as to the claims alleging that they are vicariously liable for the intentional torts of the individual defendants (Theodore Moon, John Moon, Baker, and Ware). Therefore, we grant the petition for a writ of mandamus directing the trial court to stay discovery, and we direct the trial court to conduct a hearing on the summary-judgment motion as to these claims. In addition, the City has also demonstrated a clear legal right to an order directing the trial court to stay discovery as to the claim that it is vicariously liable for the alleged negligent actions of Theodore Moon and John Moon. The petition for a writ of mandamus ordering the trial court to stay discovery is also granted as to this claim, and we direct the trial court to hold a hearing on the summary-judgment motion as to this claim. However, at this stage in the proceeding, the City has not demonstrated a clear legal right to an order directing the trial court to stay discovery and conduct a hearing on the motion for summary judgment as to the claim that it is vicariously liable for the alleged negligent acts of Baker and Ware. Accordingly, we deny the petition for the writ of mandamus as to this claim.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

SEE, LYONS, HARWOOD, BOLIN, and PARKER, JJ., concur.

STUART, J., concurs in the result.

NABERS, C.J., and WOODALL, J., concur in the result in part and dissent in part.

WOODALL, Justice

(concurring in the result in part and dissenting in part).

The trial court properly concluded that discovery was necessary before the pending summary-judgment motion could be adequately addressed. I am aware of no authority requiring the trial court to consider such a motion on a piecemeal basis. Therefore, to the extent this Court grants the petition, I respectfully dissent. Otherwise, I concur in the result.

NABERS, C.J., concurs.

        . This case was originally assigned to another Justice; it was reassigned to Justice Smith.

      . 42 U.S.C. § 1983 (1996).

      . Alabama Const. 1901, § 14, states: "That the State of Alabama shall never be made a defendant in any court of law or equity.” Although the petitioners in this case argue that they are entitled to absolute immunity under this provision, this argument is without merit. Absolute immunity does not extend to municipalities or its agents. See Norris v. City of Montgomery, 821 So.2d 149, 152-53 (Ala. 2001) (holding that absolute immunity does not extend to municipalities); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) ("This absolute immunity extends to arms or agencies of the state ... but generally does not extend ... to municipalities or municipal agencies .... ”); and Jackson v. City of Florence, 294 Ala. 592, 600, 320 So.2d 68, 75 (1975).

      . This Court no longer applies the discretionary/ministerial function dichotomy in determining immunity. See Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000).

      . The petitioners actually argue that all the petitioners are entitled to immunity under § 6-5-338. However, because § 6-5-338 provides immunity to "peace officers,” the immunity offered by that Code section is available to John Moon and Theodore Moon. Petitioners Ware and Baker are not entitled to immunity under § 6-5-338 because there is no argument or evidence before us to indicate that they are "peace officers” as contemplated by the statute.

      . However, we note that an officer is not entitled to absolute immunity when he or she is engaged in an "arrest or an attempted arrest.” For example, if an officer is engaged in an arrest but he or she "fail[s] to discharge [the arrest] pursuant to detailed rules or regulations, such as those stated on a checklist,” then the officer is not entitled to immunity. Butts, 775 So.2d at 178. Cf. Howard, 887 So.2d at 209 (holding that although an officer was required to exercise judgment in determining whether an inmate was at risk for suicide, the officer was not entitled to immunity under § 6-5-338(a) because the officer failed to follow the mandatory rules and procedures requiring the officer to check on inmates twice per hour). However, in the case at bar, Arnold has not alleged that when she was arrested John Moon or Theodore Moon "failed to discharge duties pursuant to detailed rules or regulations.”
      Secondly, an officer will not be entitled to immunity under § 6-5-338(a) and the standard set out in Cranman if he or she carries out an arrest or attempted arrest that is “beyond his [or her] authority.” Butts, 775 So.2d at 178. See also Moore v. Crocker, 852 So.2d 89, 92 (Ala.2003) (holding that an officer was not entitled to immunity under § 6-5-33 8(a) because the officer exceeded his authority when he made a warrantless arrest outside the county in which he was employed). In this case, Arnold does not allege that John Moon or Theodore Moon exceeded their authority when she was arrested. Although Arnold alleges that John Moon and Theodore Moon were negligent, there is no allegation that their conduct leading to her arrest and the arrest itself falls outside the scope of an action that involves the exercise of discretion or an exercise in judgment.

      . Judicial immunity could apply only to the acts of Ware, the municipal court magistrate, and Baker, the clerk of the municipal court. See Bayou La Batre, 785 So.2d at 1133 ("This Court has extended the principle of judicial immunity to the discretionary judicial acts of magistrates and clerks of court.”).

      . It is unclear how Ware could have been negligent in simply instructing Baker to “clean up” the court files. However, Arnold alleges that Baker and Ware acted together to issue the warrant for her arrest, and the petitioners do not dispute this allegation.


source: Caselaw Access Project

author: PITTMAN, Judge. CRAWLEY Presiding Judge, MURDOCK, Judge,

license: Public Domain

text:
    Michael DODD v. William BURLESON and Jeanette Burleson.
    2040003.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2005.

      Oliver J. Latour, Jr., Foley, for appellant.
    M. Lionel Leathers of Hollis Leathers & Leathers, P.C., Winfield, for appellees.
   PITTMAN, Judge.

In this appeal, we address, for the first time, the effect of the 2003 amendments to Ala.Code 1975, § 30-3-4.1, which governs actions to establish grandparental-visitation rights.

Legal Background

As the Alabama Supreme Court noted in Ex parte Bronstein, 434 So.2d 780, 782 (Ala.1983), at common law, a parent’s obligation to allow visitation between his or her child and that child’s grandparent was a moral obligation, not a legal one; thus, “grandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents.” In order to remedy the potential for injustice by a strict application of that legal principle, and in light of wider acceptance of the benefits to a child that customarily flow from that child’s relationship with his or her grandparents, a number of states, including Alabama, enacted laws granting grandparents standing to seek visitation with their grandchildren in certain enumerated situations. Much of that history was summarized by Judge Thompson in his opinion for this court in Weathers v. Compton, 723 So.2d 1284 (Ala.Civ.App.1998):

“In 1980, the Alabama legislature enacted § 30-3-3, Ala.Code 1975, which abrogated th[e] common-law proposition and created a right of visitation for grandparents under limited circumstances when the parents divorce. Section 30-3-3, Ala.Code 1975, provided that ‘[t]he presiding judge in a divorce ease involving custody of children, may award, at his discretion, visitation rights to the grandparents of such children.’
“In 1983, the Alabama legislature repealed § 30-3-3 and enacted § 30-3-4, Ala.Code 1975. One aspect of the intent of the legislature in enacting the 1983 statute was to expand ‘grandparental rights to visitation to include the situation involving the death of one of the grandchild’s parents.’ Mills v. Parker, 549 So.2d 97, 98 (Ala.Civ.App.1989).
“In 1989, the Alabama legislature amended § 30-3-4, Ala.Code 1975, to give grandparents the right to intervene in any divorce action and to file a motion to modify the original divorce judgment solely for visitation rights, the right to move for a finding of contempt when the parents of the child have denied visitation rights, and the right to visitation when the parents of a child unreasonably deny grandparents visitation for a period exceeding 90 days.
“In 1995, the Alabama legislature again amended § 30-3-4, Ala.Code 1975. The Alabama legislature made the applicability of the 1995 amendment retroactive to January 1, 1989. 1995 Ala. Acts, Act No. 95-584.... The 1995 version of § 30-3-4 state[d, in part]:
‘At the discretion of the court, visitation privileges for grandparents of minor grandchildren shall be granted in any of the following situations:
“ ‘ “1) When the parents of the child have filed for a dissolution of their marriage or when they are divorced. A grandparent may intervene in any dissolution action solely on the issue of visitation privileges or may file a petition to modify an original decree of dissolution to seek visitation rights when those rights have not been previously established by the court.’
“(Emphasis added [in Weathers ].)
“The legislature’s intent in enacting the 1995 version of § 30-3-4 was ‘to provide visitation privileges for grandparents, those privileges presumed to be in the best interest of the child, but the presumption being rebuttable upon the consideration of the court of what is in the best interest of the child.’ Act No. 95-584.”

723 So.2d at 1285-86. In 1999, § 30-3-4, Ala.Code 1975, was repealed and replaced with a new statute, § 30-3-4.1, Ala.Code 1975. Under § 30-3^4.1 as originally enacted, a judgment awarding grandparen-tal-visitation rights was statutorily permissible in five instances:

“when one or both the child’s parents ha[d] died; upon the dissolution of the child’s parents’ marriage; upon abandonment of the child by one or both of the parents; when the child is born to unmarried parents; and when one or both of the child’s parents, who are still married, use[d his, her, or] their parental authority to prohibit a relationship between the grandparent and the child.”

Richburg v. Richburg, 895 So.2d 311, 315 (Ala.Civ.App.2004). However, in enacting § 30-3-4.1, the Legislature initially retained the rebuttable presumption in favor of grandparent visitation that had appeared in the 1995 amendments to § 30-3-4. Based upon its breadth, one may well refer to the original version of § 30 — 3—4.1 as the statutory apex of grandparental-visitation rights under Alabama law.

However, legislative efforts to foster relationships between grandparents and grandchildren have not been universally acclaimed, and a number of parents have asserted that grandparental-visitation statutes such as those enacted in Alabama unconstitutionally infringe upon parental prerogatives. Although this court in 1986 rejected such an attack upon the constitutionality of the version of § 30-3-4, Ala. Code 1975, that was then in effect (see Cockrell v. Sittason, 500 So.2d 1119 (Ala.Civ.App.1986)), the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), invalidating a Washington third-party-visitation statute as applied, prompted this court, among others, to reexamine the constitutional questions raised by grandparental-visitation statutes. Although the Court issued no majority opinion in Troxel, “[e]ight Justices agreed that the Fourteenth Amendment [to the United States Constitution] protects a parent’s right to raise his or her child without undue interference from government,” while “[f]ive Justices agreed that a fit parent is accorded a presumption that the parent acts in the child’s best interests,” and “[f]our Justices ... agreed that ‘special factors’ must ‘justify’ the state’s intrusion, and that one of those factors is a finding of parental unfitness.” Linder v. Linder, 348 Ark. 322, 347, 72 S.W.3d 841, 855 (2002).

As the New Jersey Supreme Court noted in Moriarty v. Bradt, 177 N.J. 84, 109, 827 A.2d 203, 218 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed.2d 78 (2004), courts that have assessed the constitutional application of their states’ grandparental-visitation statutes have typically “engaged in one of two modes of analysis: (1) interpreting the statutes to require satisfaction of a harm standard in order to overcome the presumption in favor of a fit parent’s decision or (2) avoiding the articulation of any standard at all and analyzing the statutes on a case-by-case basis.” Although “Troxel implied that either approach would be acceptable,” id., certain members of this court, in wrestling with the question of the proper application of § 30-3-4.1 as originally enacted, have voiced support for a harm standard, as we note below. This case, however, squarely presents the question whether that standard should be held to have survived the Legislature’s recent amendment of § 30-3 — 4.1.

Initial Procedural Background

In May 2004, William B. Burleson and Jeanette Burleson (“the grandparents”), who are the maternal grandparents of three children born to Diana Burleson Dodd (“the mother”) and Michael Dodd (“the father”), filed a petition in the Marion Circuit Court seeking a pendente lite and permanent award of visitation rights with the children, the appointment of a guardian ad litem to represent the children’s interests, and other appropriate relief. The grandparents alleged that the father had “made known his wishes to deny visitation rights” to the grandparents; they also averred that their visitation with the children would be in the children’s best interests and would not endanger their physical or emotional health. The father answered the petition and averred that § 30-3-4.1 violated his due-process rights under the United States and Alabama Constitutions; however, he did not serve the Attorney General with a copy of his answer asserting that constitutional challenge. The grandparents then sought additional pendente lite relief upon learning that the father had moved from Marion County to Baldwin County with two of the three children.

Trial Proceedings

The trial court then held an ore tenus proceeding over three separate days in June and August 2004. The evidence adduced at those hearings tended to indicate that the father had married the grandpar-exits’ daughter in 1985 and that that marriage had produced three children: an older daughter who is no longer a minor, a younger daughter who is now 16 years old, and a son who is now 7 years old. During the marriage, the father, the mother, and the children all lived in Marion County in close proximity to the grandparents. According to the daughters’ testimony, the children spent a lot of time at the grandparents’ residence. Specifically, in May 2001, the mother was diagnosed with breast cancer; during and after the surgical treatment of that cancer, the grandparents provided assistance in the care of the children. In October 2001, the father suffered severe injuries from a mishap involving the operation of a motorcycle; he was hospitalized for over a month and underwent physical therapy for several months thereafter, during which period the grandparents provided the bulk of the children’s care.

In November 2002, the mother was again diagnosed as having cancer. However, unlike the mother’s previous onset of cancer, surgical treatment was unavailable, and she died in February 2003. During the mother’s final illness, relations between the father and the older daughter became strained; after the mother’s death, the father began severing relationships with family friends and entered into a social relationship with a widow from Walker County, a mother of two children, whom the father would later marry. During their courtship, which involved a brief cohabitation, relations between the father and the grandparents became increasingly tense, which began to affect the previously close relationship that the grandparents had had with the children. It appears that the father resented the grandparents’ profound disapproval of his eventual second wife, or at least their disapproval of the extent and rapid development of the father and his second wife’s relationship, as well as the grandparents’ recounting to the children their memories of the mother; the father began occasionally denying the children permission to visit with the grandparents and wrote a letter to the grandparents insisting that the grandparents “keep [their] negative comments and opinions to” themselves when the children were present.

The father married his new wife in December 2003; however, the relationship between the father and the grandparents did not improve. In fact, not only did that relationship worsen, but the father also quarreled to such an extent with the older daughter that he screamed at her, slapped her repeatedly, and directed her to move out of the family home; she was not permitted to resume living in the family home for the remainder of her minority. Matters between the father and the grandparents appeared to come to a head in late April and early May 2004; in apparent reaction to the grandparents’ discussion of the mother in the son’s presence, the father began denying all contact between the son and the grandparents and sent a letter to the grandparents threatening either to move from Marion County or to obtain a restraining order preventing contact between the grandparents and the two younger children. After the grandparents initiated the instant action seeking visitation rights, the son informed the grandparents that he had been forbidden to ever return to the grandparents’ home.

At the first hearing in the cause, on June 22, 2004, the father, the older daughter, and the mother of one of the older daughter’s friends testified. The older daughter testified, in pertinent part, that she had been kicked out of the family home after a violent quarrel but that she and the father had since been attending counseling sessions. The older daughter described the grandparents as “[w]onderful” and agreed that they had been an integral part of the lives of each of the children.

The older daughter opined that the grandparents loved her “[unconditionally,” but when asked whether the grandparents would love and take care of her siblings the same way, she responded, “They want to, but he [the father] won’t let them.” The older daughter testified that the grandparents had purchased a number of items for the younger sister and had attended a number of sporting and cheer-leading events involving the daughters. She also testified that the son had asked her on each occasion she had seen him since she had moved out whether he could see the grandparents but that, upon being reminded of the situation, he had stated “Oh yeah. Daddy won’t let me.” The older daughter admitted to wishing that she could, in stealth, take her siblings to the grandparents’ home to visit with them, and she testified that the children, being the grandparents’ only grandchildren, were “all [the grandparents have] got left” following the mother’s death.

At the second hearing, on June 28, 2004, among the witnesses called by the parties was the younger daughter. The younger daughter testified at that hearing that she and the son loved her grandparents and that she wanted the grandparents to remain a part of her life; however, she testified that she had not visited with the grandparents in four months. The younger daughter expressed a desire to see the grandparents “like we used to, when we wanted to, or when we went over” instead of, in her words, being “forced to see them any certain amount of time”; she added that she did not want either the father or the grandparents to be mad at her. The younger daughter expressed optimism that the father would not interfere with visitation between the two younger children and the grandparents, but she admitted that as of the date of the hearing she had lost the ability to simply telephone the grandparents and ask to visit them. Finally, the younger daughter testified that there had been discussions between family members about the father, his new wife, and the two younger children moving from Winfield, which is located in Marion County, but that she had been told that such a move would not happen “any time soon.”

A third hearing in the cause occurred on August 11, 2004, at which all of the parties and a number of other witnesses testified. During that hearing, it was revealed that the father, his new wife, and the two younger children had moved from Winfield to Fairhope, which is located in Baldwin County, in early July 2004 and that the previous family home in Winfield had been listed with a broker for sale. The father admitted during that hearing that no relatives of the father or his new wife lived in Fairhope and that the move had been prompted by a desire to “start over” in a place free of “rumors.” The father denied that the move was made solely to keep the younger children from the grandparents.

After the three hearings, the trial court entered a judgment granting the grandparents’ petition on August 20, 2004. In pertinent part, the trial court’s judgment referred to the significant relationship that the grandparents had had with the children, including “quasi-parental” duties as to their care during 2001; the judgment specifically determined that visitation between grandparents and the children would be in the best interests of the children. The visitation awarded consisted of the following periods: one 24-hour period every two weekends, a six-week period each summer, one week beginning on Christmas Day, one week during school spring break, three days at Thanksgiving, and one day at Easter and on Mother’s Day weekend. The father was directed to transport, either personally or via a desig-nee, the children to and from the Winfield City Hall-for visitation. The grandparents were also awarded reasonable telephone contact with the children. The father was also cited (but not punished) in the judgment for his contempt of particular interlocutory orders, and he was: made responsible for paying an attorney fee to counsel for the grandparents and to -the children’s guardian ad litem.

The Father’s Appeal

The father has appealed, raising seven issues in a brief filed by counsel who appeared for the first time on appeal. Of those issues, we note that four were not raised in the trial court (ie., the validity of a visitation order apparently rendered on July 16, 2004; the allowance of the grandparents’ amended complaint; the taxation of the guardian ad litem’s fee to the father; and the award -of an attorney fee to the grandparents). Because the father failed to preserve those issues for appellate review by raising them in the trial court, consideration of those issues by this court is pretermitted. See Birmingham Hockey Club, Inc. v. National Council on Compensation Ins., Inc., 827 So.2d 73, 80 (Ala.2002) (“In order to be considered on appeal, issues must be presented to the trial court and to the opposing parties at the trial level.”).

The father’s remaining three issues each concern the propriety of the trial court’s visitation award. The father first contends that Ala.Code 1975, § 30-3-4.1, as amended, is unconstitutional in its application. However, we conclude that the father’s constitutional challenge is not properly presented for review. Ala.Code 1975, § 6-6-227, a portion of the Declaratory Judgment Act, states that “[i]n any proceeding ... if [a] statute ... is alleged to be unconstitutional, the Attorney General of the state shall ... be served with a copy of the proceeding and be entitled to be heard.” That statute has been held to impose a jurisdictional requirement, ie., if a statute or ordinance is alleged to be unconstitutional, a trial court may not enter a valid judgment concerning the constitutionality of the challenged statute or ordinance unless the Attorney General is served with notice of the challenge. E.g., Smith v. City of Florence, 288 Ala. 61, 62, 256 So.2d 893, 894 (1971). The father did not serve a copy of his answer challenging the constitutionality of Ala.Code 1975, § 30-3-4.1, upon the Attorney General. Thus, his constitutional challenge to § 30-3-4.1 has not been preserved for appellate review. See, e.g., Landers v. O’Neal Steel, Inc., 564 So.2d 925, 926 (Ala.1990).

The Substantive Standard

The father’s second challenge to the visitation aspects of the trial court’s judgment asserts that the trial court should not have, as he says, determined the question of visitation based upon a best-interests standard. It is that challenge that squarely presents for review whether § 30-3^.1, as amended, should be held to require a showing of harm as a prerequisite for a judgment awarding grandparental visitation. For the reasons stated herein, we conclude that the application of the harm standard does not survive the Legislature’s 2003 amendments to § 30-3-4.1.

In R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), we reversed a judgment awarding “overnight and other unsupervised visitation rights to [a] grandfather, consisting of one weekend per month, as well as an additional day during the week preceding New Year’s Day and one day for Grandparents’ Day.” 812 So.2d at 364. Although all five judges of this court concurred in the reversal, three judges concluded that § 30-3-4.1, as then in effect, was unconstitutional as applied to the litigants in that case, whereas one judge concluded that § 30-3-4.1 was facially unconstitutional. Both the main opinion and Presiding Judge Yates’s special writing in R.S.C. agreed that that portion of former § 30-3-4.1(e) setting forth a rebuttable presumption in favor of grandparental visitation was, under Troxel, unconstitutional.

In L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002), four judges of this court agreed that Troxel did not compel a conclusion that § 30-3-4.1 had no constitutional field of application (thereby rejecting the proposition that § 30-3-4.1 was facially unconstitutional). The main opinion (joined by two judges) indicated that § 30-3-4.1, without the presumption in favor of grandparental visitation, was “enforceable because it provides a standard— the factors listed in § 30-3-4.1(d) — upon which the court may rely in determining when and under what circumstances to award visitation.” 826 So.2d at 187. Under the rationale set forth in the main opinion, so long as a petitioning grandparent adduced “clear and convincing evidence” that the best interests of the pertinent child would be served by awarding grandparental visitation, a trial court could properly award such visitation on a case-by-case basis. 826 So.2d at 186-87. However, two other judges who agreed that § 30-3-4.1 was not facially unconstitutional opined in L.B.S. that, as a matter of due process, a grandparent seeking a visitation judgment must make a showing of substantial harm to the child if the requested visitation is not granted. L.B.S., 826 So.2d at 187, 188 (opinions of two judges concurring in the court’s judgment of reversal only). Because the “harm” class of cases amounted to a subset of the larger class of cases as to which former § 30-3-4.1 could be constitutionally applied under the main opinion in L.B.S., appellate decisions since L.B.S. pertaining to grandparental visitation have tended to analyze whether the facts in those cases fit within the narrower “harm” class. C.D.P. v. D.P., 927 So.2d 841 (Ala.Civ.App.2005), and Richburg v. Richburg, 895 So.2d 311 (Ala.Civ.App.2004).

However, as we have intimated, the Legislature has not simply remained silent since R.S.C. and L.B.S. In 2003, the Legislature enacted Act No. 2003-383, Ala. Acts 2003, in response to the infirmities identified by this court in the aftermath of Trox-el. First, in Act No. 2003-383, the Legislature removed the portion of § 30-3-4.1(e) that had provided that “[tjhere shall be a rebuttable presumption in favor of visitation by any grandparent” so as to remove the language that had largely impelled this court’s decision in R.S.C. concerning the constitutionality of former § 30-3-4.1. Second, the Legislature specifically amended § 30-3-4.1(d) so as to include “the wishes of any parent who is living” among the factors to be considered in determining whether the best interests of a child would be served by awarding grandparental visitation, making explicit what the main opinion in L.B.S. had held to be implicit in the general direction in former § 30-3-4.1(d)(6) that trial courts are to consider “[ojther relevant factors” in their best-interests calculus. Notably, however, the Legislature in 2003 reaffirmed the statutory best-interests standard despite intimations from members of this court that a harm standard was constitutionally required: where § 30-3-4.1(d) formerly provided that a trial court “shall grant any grandparent of the child reasonable visitation rights if the court finds that the best interests of the child would be served by the visitation,” § 30-3-4.1(d), as amended in 2003, provides that “the court shall determine if visitation by the grandparent is in the best interests of the child.”

We can interpret the 2003 amendments to § 30-3^4.1 only as an endorsement by the Legislature of the judiciary’s use of the case-by-case approach taken by the main opinion in L.B.S. and as a simultaneous rejection of the proposition that the “harm” standard should be the touchstone by which the propriety of a judgment awarding grandparental visitation should be judged. Moreover, contrary to the position espoused in certain special writings in L.B.S., it has become clear in the five years since Troxel was decided that due process does not require a showing of harm in all cases as a prerequisite to a judgment awarding grandparental visitation. Indeed, Troxel itself appears to stand for the opposite proposition, as the Oregon Supreme Court recently noted:

“[A] majority of the Court strongly indicated [in Troxel ] that the presumption in favor of a parent’s decisions was not so strong that it could be overcome only by a showing that the parent poses a risk of harm to the child. As previously discussed, Justices Stevens and Kennedy each expressly rejected the Washington Supreme Court’s conclusion that a finding of harm to the child is required to overcome the parental presumption. ... Moreover, the plurality declined to consider the lower court’s reliance on the ‘harm’ standard ... but cited with approval various statutes that would be inconsistent with such a standard.”

In re Marriage of O’Donnell-Lamont, 337 Or. 86, 101, 91 P.3d 721, 730 (2004) (emphasis added), cert. denied, 543 U.S. 1050, 125 S.Ct. 867, 160 L.Ed.2d 770 (2005).

In reaching the conclusion that under § 30-3-4.1, as amended in 2003, a harm standard is neither constitutionally required nor desired by the people of Alabama (speaking through their elected representatives in the Legislature), we follow the lead of the Kentucky Court of Appeals. That court, in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky.Ct.App.2004), overruled Scott v. Scott, 80 S.W.3d 447, 451 (Ky.Ct.App.2002), which had held that “grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent.” (Footnote omitted.) The rationale in Vibbert is instructive in this case, and we adopt it as our own:

“Scott imposed an unworkable standard of proving by clear and convincing evidence that harm to the child would result from discontinuing the relationship between a child and a grandparent. We believe that the Scott court incorrectly interpreted the Troxel case ... as requiring such a strict standard, holding that the familiar ‘best interest’ standard was no longer constitutionally permissible. However, the Supreme Court carefully avoided setting any such precedent in Troxel, as the plurality opinion of the Court explicitly stated:
“ ‘we do not consider ... whether the Due Process Clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.’
“Troxel[, 530 U.S. at 73, 120 S.Ct.] at 2064. Nevertheless, this Court in Scott created a standard which was, at the time, believed to satisfy the requirements of Troxel. It is the opinion of this Court now that Scott set an unnecessarily strict and unworkable standard.
“We believe that a modified ‘best interest’ standard can be used in cases where grandparent visitation is sought within the constitutional framework of Troxel. What Troxel requires us to recognize is that a fit parent has a superior right, constitutionally, to all others in making decisions regarding the raising of his or her children, including who may and may not visit them. A fit parent’s decision must be given deference by the courts, and courts considering the issue must presume that a fit parent’s decision is in the child’s best interest.
“Where we differ from Scott is in the method by which grandparents may challenge that decision. Scott allows only one avenue for grandparents to challenge the decision, requiring them to show by clear and convincing evidence that depriving the child of visitation with the grandparent would harm the child. We believe this test to be too narrow, in that among other things it does not adequately take into account a situation ivhere visitation is withheld by the parents out of vindictiveness.
“We now hold that the appropriate test under [the applicable grandparen-tal-visitation statute] is that the courts must consider a broad array of factors in determining whether the visitation is in the child’s best interest, including but not limited to: the nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, parents and grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child. The grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child.”

144 S.W.3d at 294-95 (emphasis added).

The father’s second argument assumes the continued vitality of the proposition that a case must fall within the harm subset in order for a judgment awarding grandparental visitation to be affirmed. Although that stance might have had some practical force in the legal climate existing before the Legislature’s amendments to § 30-3^4.1, it is inconsistent with the conclusion we reach today concerning the effect of those amendments. Moreover, the trial court’s decision to award definite visitation to the grandparents, given the factual background leading up to that court’s judgment, is wholly consistent with the letter and spirit of § 30-3-4.1. Thus, to the extent that the trial court applied a “best interests” standard in conformity with § 30-3-4.1(d) that accounts for the pertinent factors specified by the Legislature, especially the wishes of a living parent such as the father, we cannot conclude that that judgment is in error.

Extent of Visitation

However, we agree with the father’s third argument: that the trial court abused its discretion in requiring the particular visitation specified in that court’s judgment. Under the terms of the trial court’s judgment, the father’s two minor children will be required to travel with the father (or his designee) between their new home in Fairhope and the Winfield City Hall, a round-trip distance of approximately 600 miles, once every two weeks for a single day of visitation, not to mention being required to spend substantial amounts of time with their grandparents during each academic-vacation period, including six weeks during the summer. While the father’s actions in moving to Fairhope could properly have been determined to have been calculated to deprive the grandparents of any contact with the minor children, we cannot conclude that the proper remedy for that conduct is to impose such a rigorous visitation schedule that would have such adverse effects on the minor children. Compare Mann v. Mann, 725 So.2d 989, 993 (Ala.Civ.App.1998) (reversing, as an abuse of discretion, a visitation judgment that “require[d] the children, ages two and four, to be in the car for approximately eight hours” every other weekend).

Under the trial court’s judgment, the remaining minor children are at risk of being prevented from forming and maintaining any substantial social and familial bonds in their new home community, a result that we are confident was not intended by the Legislature. In its zeal to reconstitute the previous relationship between the grandparents and the minor children, the trial court has, we feel, overlooked the overarching goal that § 30-3-4.1 was intended to achieve: furtherance of children’s best interests through reasonable visitation with grandparents. As to the specific amount and terms of visitation awarded by the trial court, then, we must reverse the trial court’s judgment; we remand for the trial court, being mindful of the need of the children to be a part of their new home, to craft a new judgment permitting more limited visitation with the grandparents.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, J., concurs.

CRAWLEY, P.J., concurs in the result, with writing, which BRYAN, J., joins.

MURDOCK, J., concurs in the result only, with writing.

CRAWLEY Presiding Judge,

concurring in the result.

Because the father failed to preserve a constitutional challenge to § 30-3-4.1, Ala. Code 1975, and the constitutional issues are, therefore, not before us, I concur in the result. The discussion in the main opinion of what showing would be required as a matter of due process in order to award grandparental visitation under the amended statute is dictum.

BRYAN, J., concurs.

MURDOCK, Judge,

concurring in the result only.

I do not agree with the main opinion’s analysis of the due-process, constitutional issue discussed therein. Among other things, I particularly do not agree that the Kentucky Court of Appeals, in its decision in Vibbert v. Vibbert, 144 S.W.3d 292 (Ky.Ct.App.2004), correctly analyzed this issue. My views as to this issue continue to be as expressed in R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002) (Mur-dock, J., concurring in the judgment of reversal only), and subsequent cases. See also, e.g., McQuinn v. McQuinn, 866 So.2d 570, 578 (Ala.Civ.App.2003) (Murdock, J., dissenting).

Nonetheless, Presiding Judge Crawley correctly notes that the father failed to preserve a constitutional challenge to § 30-3-4.1, Ala.Code 1975, and that, therefore, “[t]he discussion in the main opinion of what showing would be required as a matter of due process in order to award grandparental visitation under the amended statute is dictum.” 932 So.2d at 922 (Crawley, P.J., concurring in the result). It is for this reason that I am able to concur in the result reached in the main opinion.

      . We note that the father has not challenged those portions of the judgment specifying that the grandparents are to have "reasonable telephone contact" with the minor children. Optimally, the role of such telephone contact in preserving a close relationship between the children and the grandparents should be considered in crafting a new visitation judgment.