author: Shaw, J., dissents. SHAW, Justice (dissenting). MENDHEIM, Justice (dissenting).

text:
    EX PARTE TOMBIGBEE HEALTHCARE AUTHORITY d/b/a Bryan W. Whitfield Memorial Hospital
    (In re: T.N., an individual; A.V., an individual; O.J., an individual; and I.P., an individual v. Leland Bert Taylor, Jr., and Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital)
    1160706
    Supreme Court of Alabama.
    December 15, 2017
    Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") petitions this Court for a writ of mandamus directing the Marengo Circuit Court to vacate its order compelling the hospital to respond to certain discovery requests and to enter a protective discovery order in its favor. We deny the petition.
    Facts and Procedural History
    T.N., A.V., O.J., and I.P. (hereinafter referred to collectively as "the plaintiffs") brought this action against the hospital, and its radiological technician, Leland Bert Taylor, Jr., who they allege sexually assaulted them while they were patients of the hospital. The plaintiffs asserted a claim against Taylor, alleging that he had acted negligently and/or wantonly by sexually assaulting them. The plaintiffs also asserted a claim against the hospital, alleging that it was vicariously liable for the negligent and/or wanton acts of Taylor and that it was negligent and/or wanton in its hiring, training, supervision, and retention of Taylor.
    Along with their complaint, the plaintiffs served the hospital with written discovery requests seeking, among other things, information concerning "other incidents" involving Taylor; its investigation into their allegations of sexual assault by Taylor; and its hiring, training, supervision, and retention of Taylor and the termination of his employment. The hospital objected to the plaintiffs' requests, contending that the requests were protected by certain discovery privileges. Specifically, the hospital argued that any information concerning "other incidents" by Taylor was barred by § 6-5-551, Ala. Code 1975, a part of the Alabama Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"). Section 6-5-551 of the AMLA prohibits a party from conducting discovery "with regard to any other act or omission." The hospital further argued that any information concerning its hiring, training, supervising, retention, and dismissal of Taylor, as well as its investigation into the plaintiffs' allegations of sexual assault by Taylor, was privileged under § 22-21-8(b), Ala. Code 1975, which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery."
    The plaintiffs filed a motion to compel discovery, relying on Ex parte Vanderwall, 201 So.3d 525 (2015), which held that the AMLA did not apply to allegations of sexual assault. After conducting a hearing, the trial court entered an order granting the plaintiffs' motion to compel. The hospital moved for a protective order pursuant to Rule 26(c), Ala. R. Civ. P., concerning the discovery requests, which the trial court denied. This petition followed.
    Standard of Review
    " 'Mandamus is an extraordinary remedy and will be granted only when there is "(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001).... The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case-that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala. 1992).'
    " Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003)."
    Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So. 3d 445, 447 (Ala. 2009).
    Discussion
    The hospital first contends that the trial court exceeded its discretion by allowing the plaintiffs to seek discovery of "other incidents" involving Taylor, which, they say, is prohibited by § 6-5-551 of the AMLA. See Ex parte Gentiva Health Servs., Inc., 8 So.3d 943, 946-47 (Ala. 2008) ("The exemption from discovery offered by § 6-5-551..., which prohibits a party in a medical-malpractice action 'from conducting discovery with regard to any other act or omission,' i.e., any act or omission other than the one that allegedly renders the health-care provider liable, is treated as a privilege for purposes of determining whether in issuing the discovery order the trial court has disregarded a privilege, thus warranting review of the discovery order by way of a petition for a writ of mandamus."). The plaintiffs, on the other hand, relying on Ex parte Vanderwall, assert that, because an act of sexual assault by a medical provider does not result in a "medical injury" as contemplated by the AMLA, the hospital cannot rely on § 6-5-551 as a basis on which to refuse to respond to their discovery requests. Whether the plaintiffs' requested discovery is prohibited under § 6-5-551 requires a determination of whether their claim of negligent and/or wanton hiring, training, supervision, and retention is governed by the AMLA and, more specifically, whether this Court's holding in Vanderwall is instructive in this regard.
    In Vanderwall, a physical therapist allegedly sexually assaulted a patient during the course of treating her for back pain. The patient sued the physical therapist, asserting a claim against him for assault and battery. The patient also sued the rehabilitation center that employed the physical therapist, asserting a claim against it of negligent and/or wanton hiring. During the course of discovery, the patient sought a declaration that her claims against the physical therapist and the rehabilitation center were not governed by the AMLA. The patient, however, dismissed her claim against the rehabilitation center, and the case proceeded against only the physical therapist. On appeal, this Court concluded that the physical therapist could not use the AMLA as a basis on which to refuse to answer the patient's interrogatories concerning other acts or omissions on her part because "sexual misconduct by a health-care provider toward a patient is not medical treatment, and it does not result in a 'medical injury' as such an injury is understood under the AMLA." 201 So.3d at 540.
    The hospital contends that Vanderwall is distinguishable, primarily because the patient in Vanderwall dismissed her claim against the rehabilitation center, and Vanderwall thus never addressed whether the AMLA applied to the claim of negligent and/or wanton hiring of the physical therapist. Rather, Vanderwall addressed only whether the claim against the physical therapist, alleging assault and battery based on sexual misconduct, was governed by the AMLA and held that the AMLA did not apply. The hospital asserts that, even though the plaintiffs' negligence and/or wantonness claim against Taylor-based on acts of sexual assault-arguably might not be governed by the AMLA, the claim against it, alleging negligent and/or wanton hiring, training, supervision, and retention, would be governed by the AMLA. In other words, the hospital asserts that the plaintiffs' claim against it is not a claim alleging sexual assault but, rather, an independent claim of medical negligence stemming from the hospital's alleged failure to protect the plaintiffs from harm and its alleged negligent and/or wanton hiring, training, supervision, and retention of Taylor. We agree.
    The AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." § 6-5-548, Ala. Code 1975. Section 6-5-551 provides:
    "In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action."
    (Emphasis added.) See Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1116 (Ala. 2000) (stating that " § 6-5-551 makes it clear that a claim against a health-care provider alleging that it breached the standard of care in hiring, training, supervising, retaining, or terminating its employees is governed by the [AMLA]"). Here, the plaintiffs have specifically alleged that the hospital owed a duty to properly hire, train, supervise, and retain its employees, including Taylor; that the hospital undertook a duty to protect patients like the plaintiffs from harm while they were receiving treatment at its facility; that the hospital negligently and/or wantonly entrusted Taylor with the care and treatment of patients at its facility; that the hospital knew, or in the exercise of reasonable care, should have known that Taylor was incompetent and/or unfit to perform the job he was hired to perform; and that the hospital negligently and/or wantonly failed to act and to terminate Taylor's employment upon actual or constructive notice of his incompetence and/or unfitness to perform his job. The plaintiffs' primary contention is that the hospital was made aware of Taylor's sexual misconduct well before October 7, 2015-the date Taylor was arrested and charged with first-degree sodomy and first-degree sexual assault in connection with the incidents of sexual misconduct that are the subject of the underlying action-yet the hospital did not terminate his employment until after this date. The plaintiffs' allegations clearly implicate the hospital's professional judgment in hiring, training, supervising, and retaining Taylor. Accordingly, we conclude that the plaintiffs' claim against the hospital alleging that it was negligent and/or wanton in its hiring, training, supervising, and retaining of Taylor involves a breach of an applicable standard of care for health-care providers and is, therefore, governed by the AMLA.
    In Ex parte Altapointe Health System, Inc., 249 So.3d 1108 (Ala. 2017), a case in which a resident of a group home was attacked by another resident, the resident's father, the plaintiff, sued Altapointe, the operator of the group home, alleging that it was negligent and/or wanton in hiring, training, and supervising its employees; the gravamen of the complaint was that Altapointe negligently and/or wantonly failed to safeguard the resident from the attack in the group home. This Court held that the AMLA did not apply to the father's claim, alleging negligent and/or wanton supervision, because there were no express allegations of medical negligence. Rather, the father's contentions were based "solely on the fact that the attack occurred in its facility," a contention that "merely applies the discredited 'time and place' argument to the facts of this case." 249 So.3d at 1113. In Altapointe, this Court pointed out that Vanderwall had overruled the "place and time" rule previously applied by this Court in Mock v. Allen, 783 So.2d 828 (Ala. 2000), and O'Rear v. B.H., 69 So.3d 106 (Ala. 2011). In Vanderwall, this Court explained:
    "[I]t is clear that the AMLA is not just concerned with who committed the alleged wrongful conduct or when and where that conduct occurred, but also with whether the harm occurred because of the provision of medical services."
    201 So.3d at 537-38. The plaintiffs' primary contention here is that the hospital was on notice of the alleged sexual assaults before Taylor was arrested and charged in connection with the assaults and subsequently released from his employment.
    Because we conclude that the AMLA governs the parameters of discovery in this action, we now address whether § 6-5-551 prohibits the plaintiffs from seeking information concerning "other incidents" or complaints involving Taylor, i.e., any act or omission other than the ones that allegedly render the hospital liable. The hospital asserts that two of the plaintiffs have requested discovery regarding "other incidents" or complaints and regarding the hospital's investigation of those incidents or complaints. The hospital asserts that, because the plaintiffs have filed their cases jointly, any responses of the hospital to the discovery requests will necessarily discuss facts or issues pertaining to the claims of the other plaintiffs. In other words, the hospital argues that § 6-5-551 prohibits each plaintiff from discovering information pertaining to any of the other plaintiffs. The hospital, however, has not cited any authority for its argument that the AMLA's "other acts or omissions" language would preclude plaintiffs who have filed a joint complaint from engaging in discovery related to the same employee by whom they were all victimized. In Ex parte Ridgeview, this Court stated:
    " Section 6-5-551, as amended, makes it clear that in an action against a health-care provider, based on acts or omissions in the 'hiring, training, supervision, retention, or termination of [the health-care provider's employees],' the plaintiff is entitled only to discovery concerning those acts or omissions 'detailed specifica[lly] and factual[ly] descri[bed]' in the complaint and 'alleged by [the] plaintiff to render the health care provider liable to [the] plaintiff.' Thus, if the plaintiff alleges that the defendant health-care provider breached the standard of care by negligently training, supervising, retaining, or terminating an employee or by negligently entrusting an employee with an instrumentality, then the plaintiff may discover information only concerning those acts or omissions by those employees whose conduct is detailed specifically and factually described in the complaint as rendering the health-care provider liable. Consequently, Hayes is not entitled to discovery regarding acts or omissions by Ridgeview in the hiring, training, supervising, retaining, or terminating of employees other than those employees whose acts he detailed specifically and factually described in his complaint as rendering Ridgeview liable."
    786 So.2d at 1116-117 (emphasis added). In their complaint, the plaintiffs specifically and factually describe the sexual assaults allegedly inflicted upon them by Taylor. Because the plaintiffs have consolidated their claims, it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs. Therefore, contrary to the hospital's assertion, § 6-5-551 does not prohibit each plaintiff from discovering information pertaining to the claims of the other plaintiffs. Accordingly, the hospital has not shown a clear legal right to have the trial court's discovery order vacated.
    The hospital finally contends that the trial court exceeded its discretion by denying the hospital's motion for a protective order pursuant to § 22-21-8(b), which provides that "[a]ll accreditation, quality assurance credentialing and similar materials shall be held in confidence and shall not be subject to discovery." As indicated, the plaintiffs' discovery requests included information concerning the hospital's hiring, training, supervision, retention, and dismissal of Taylor, as well as information concerning its investigation into their allegations of sexual assault by Taylor. It is well settled that "the party asserting the privilege under § 22-21-8 has the burden of proving the existence of the privilege and the prejudicial effect of disclosing the information." Ex parte Fairfield Nursing, 22 So.3d at 448.
    In support of its motion for a protective order, the hospital offered the affidavit of Cindy Parten, Director of Professional Standards for the hospital, who testified that the discovery the plaintiffs seek is not part of the plaintiffs' medical charts or kept in the ordinary course of business but, rather, is created as a result of quality-assurance investigations and that the importance of their confidentiality cannot be understated. Specifically, Parten testified:
    "4. I am knowledgeable concerning the claims set forth in the [present suit brought by the plaintiffs]. I am also knowledgeable as to what information [the hospital] had, if any, as to each Plaintiff and any complaints brought to [the hospital's] attention prior to the current suit being filed.... More specifically, [the hospital] did engage in investigations with respect to [Taylor] with regard to certain claims made by certain patients in 2015 both prior and subsequent to Mr. Taylor's employment with [the hospital] ending on October 7, 2015. As a result of these investigations, quality assurance reports were generated for both internal purposes within [the hospital] pursuant to its quality assurance process, as well as reports prepared at the request of and submitted to [the hospital's] professional liability insurance carrier with reasonable anticipation of litigation given the nature of the allegations asserted against Mr. Taylor.
    "5. Quality assurance activities and investigations, regardless of the reason for why they are initiated, are an important and vital process for [the hospital]. They begin prior to an individual beginning employment with [the hospital] in the form of gathering information on that prospective employee to ensure appropriateness and qualifications for the position to be filled. They continue after employment when any issue is raised that could [a]ffect the healthcare being rendered to patients at [the hospital]. The importance of open and honest investigations, including discussions with other employees of [the hospital] regarding such issues, cannot be understated. It is a vital process that exists to promote the quality and betterment of healthcare at [the hospital]. If quality assurance investigations, and the documents and other materials generated during those investigations, did not remain confidential, then those persons involved in the quality assurance processes would be less inclined to provide candid and open review of the conduct of [hospital] employees involved in patient care.
    "6. All documents and other materials created during the course of quality assurance investigation are not kept in the ordinary course of business, nor do they become a part of a patient's medical chart.
    "7. Quality assurance documents and other materials are, obviously, created for quality assurance purposes. The creation of these documents and materials are needed to guarantee quality of care for all patients.
    "8. I understand that Plaintiffs ... have requested an unprecedented look into the hiring, training, supervision and retention of [Taylor], as well as any complaints [the hospital] received pertaining to Mr. Taylor. I have personal knowledge regarding the discovery for which Plaintiffs seek and the information requested as to [Taylor] falls within the ambit of quality assurance inasmuch as investigations of complaints relative to [Taylor] were conducted within the confidentiality afforded the quality assurance process and were intended for its protection and privacy of patients as well as employees.
    "9. It is essential that the discovery ... Plaintiffs seek be kept confidential to ensure that [the hospital] can continue to obtain complete and accurate information about the qualifications and conduct of its employees, both prior to employment and upon initiation of any quality assurance investigation, for the reasons set forth herein."
    The hospital asserts that Parten's affidavit testimony is almost identical to the testimony of the hospital representative in Ex parte Qureshi, 768 So.2d 374 (Ala. 2000). Qureshi, however, is distinguishable insofar as the plaintiff in that case sued the physician, alleging medical malpractice. The plaintiff also sued the hospital, alleging that it had been negligent in hiring and credentialing the physician. The plaintiff sought discovery from the hospital concerning the physician's application for staff privileges. The hospital objected, claiming that the requested information was privileged under § 22-21-8. In response to the plaintiff's motion to compel, the hospital offered the affidavit of the chairman of its credentialing committee, who testified
    "that the documents that would be responsive ... were maintained as part of [the hospital's] credentialing file on [the physician]. [The credentialing chairman] further stated that it was essential that the materials gathered by the hospital be kept confidential, so as to ensure that physicians applying for hospital staff privileges would provide complete and accurate information about their qualifications. Moreover, [the credentialing chairman] stated, if the information did not remain confidential then 'physicians and health care institutions from whom materials are requested in the credentialing process would be less inclined to provide frank and open criticisms of physician applicants where warranted.' "
    768 So.2d at 376 (emphasis added).
    The instant case does not involve a physician's application for staff privileges, which, as explained in Qureshi, are kept confidential to ensure that physicians applying for staff privileges provide "complete and accurate information about their qualifications." 768 So.2d at 376. Rather, this case involves former patients of the hospital who were allegedly sexually assaulted by a former employee of the hospital. The hospital has failed to demonstrate that the quality-assurance privilege applies to claims arising out of allegations of sexual acts that are wholly unrelated to medical treatment or that investigations related to allegations of sexual assault are undertaken to improve the quality of patient care. See Ex parte Krothapalli, 762 So.2d 836 (Ala. 2000) (discussing purpose of peer-review statutes like § 22-21-8 ). Given the discretion afforded the trial court with respect to discovery matters, we conclude that the hospital has failed to meet its burden of proving the existence of the privilege afforded by § 22-21-8 and the prejudicial effect of disclosing the information the plaintiffs seek. See Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) ("Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion.").
    Conclusion
    The hospital has failed to demonstrate a clear legal right to the relief sought. Accordingly, its petition for a writ of mandamus is denied.
    PETITION DENIED.
    Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur.
    Murdock, J., concurs in part and concurs in the result.

      Taylor is not a party to this mandamus proceeding; according to the plaintiffs, he was arrested and charged with first-degree sodomy and first-degree sexual assault in connection with the allegations of sexual abuse.

      The hospital notes that, because it cannot be held vicariously liable under a theory of respondeat superior for Taylor's acts of sexual assault, the only viable claim against it is the claim alleging negligent and/or wanton hiring, training, supervision, and retention of Taylor. See Hendley v. Springhill Mem'l Hosp., 575 So.2d 547, 550 (Ala. 1990) (noting that, in the master-servant relationship, "the determinative question becomes whether the act committed by the employee was done while acting within the line and scope of his employment. If it is determined that the employee was not acting within the scope of his employment, then there can be no recovery under the doctrine of respondeat superior.").

   Shaw, J., dissents.

MURDOCK, Justice (concurring in part and concurring in the result).

I concur in that portion of the main opinion explaining the inapplicability of the limitation on discovery of quality-assurance information under § 22-21-8, Ala. Code 1975. I strongly disagree, however, with both the main opinion and the dissent as to their conclusion that the claims against the Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") are governed by the Alabama Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA").

This Court has held that the AMLA does not govern the liability of a health-care provider in relation to conduct that does not involve a deficiency in medical care. See Ex parte Vanderwall, 201 So.3d 525 (Ala. 2015) ; Ex parte Altapointe Health Sys., Inc., 249 So.3d 1108 (2017). The central premise of Vanderwall and Altapointe is that the AMLA was crafted by our legislature to govern cases where patients are injured as a result of their medical care. In Vanderwall, this Court expressly rejected the notion that tortious conduct was governed by the AMLA merely because it is committed by a health-care provider, even if it was committed at a place and time normally associated with the provision of medical care. In so doing, we expressly rejected the place-and-time rule articulated in Mock v. Allen, 783 So.2d 828 (Ala. 2000), noting that the "when and where" rule from Mock is "not plausible," that such a rule " 'does not accord with what is right and just,' " and that Mock was " 'wrong when decided.' " Vanderwall, 201 So.3d at 536 (citations omitted). In Altapointe, this Court described the place-and-time rule from Mock as "discredited" and rejected the appellant's attempt to have us resurrect and apply that rule. I am greatly concerned that both the main opinion and the dissent reflect a contrary view that undermines the central premise and the precedential import of Vanderwall and Altapointe.

The main opinion takes the position that a hospital's negligence in hiring or supervising a radiology technician who the hospital knows or should know is a sexual predator may be characterized as "medical negligence" under the AMLA. 260 So.3d at 4 ("In other words, the hospital asserts that the plaintiffs' claim against it is not a claim alleging sexual assault but, rather, an independent claim of medical negligence stemming from the hospital's ... alleged negligent and/or wanton hiring, training, supervision, and retention of Taylor. We agree." (emphasis added)). I cannot agree. I am unable to conclude that the claim at issue in this case involves "medical negligence." I therefore cannot conclude that the AMLA governs the disposition or litigation of that claim. It is for this reason, and not for the reasons offered by the main opinion, that I conclude that § 6-5-551, Ala. Code 1975, does not prohibit the plaintiffs from seeking information from the hospital concerning "other incidents" or complaints involving Leland Bert Taylor, Jr.

By its terms, the AMLA applies "[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." Ala. Code 1975, § 6-5-548 (emphasis added); see also Vanderwall, 201 So.3d at 533. Likewise, the limitation on discovery under § 6-5-551 of the AMLA applies "[i]n any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care." (Emphasis added.) As we explained in Vanderwall, the "standard of care" referenced in the AMLA is the degree of care that must be used by a health-care provider acting "within the ambit of 'medical treatment' or 'providing professional services.' " Vanderwall, 201 So.3d at 537.

" '[T]he AMLA applies to conduct that is, or that is reasonably related to, the provision of health-care services allegedly resulting in a medical injury. Just as the Alabama Legal Services Liability Act does not apply to every action against a person who is a lawyer, see Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800 (Ala. 1999), the AMLA does not apply to every action against a person who is a doctor, see Thomasson v. Diethelm, 457 So.2d 397 (Ala. 1984).... Although Mock's claims arise out of conduct that took place at a time when there was a doctor-patient relationship for the purpose of examination and treatment, see Thomasson , that fact alone cannot subject to the provisions of the AMLA all conduct by the doctor, however unrelated to the provision of medical services.' "

Vanderwall, 201 So.3d at 537 (quoting, "as the correct interpretation of AMLA," Justice Lyons's dissenting opinion in Mock v. Allen, 783 So.2d 828, 836-37 (Ala. 2000) (emphasis added in Vanderwall )).

"In short, the simple fact is that sexual misconduct by a health-care provider toward a patient is not medical treatment, and it does not result in a 'medical injury' as such an injury is understood under the AMLA. The AMLA addresses the provision of medical services to patients and failures to meet the applicable standard of care in providing those services. M.C.'s action against Vanderwall is not concerned with such matters. Accordingly, the trial court did not err in granting M.C.'s motion to compel discovery on the ground that the AMLA does not govern M.C.'s claims against Vanderwall."

Vanderwall, 201 So.3d at 540 (emphasis added); see also Altapointe, 249 So.3d at 1113 ("The gravamen of Avnet's complaint is that Altapointe negligently and wantonly failed to safeguard Hunter from such an attack [assault and battery by another patient]. There are no express allegations of medical negligence.... Because there is no evidence before us that would permit us to conclude that the assault on Hunter was somehow linked to the administration of medical care or professional services by Altapointe, we cannot say that the AMLA applies to Avnet's claims.").

The clause in § 6-5-551 referencing "the standard of care" is followed by a second, dependent clause. As a dependent clause, the latter clause does not expand the boundaries established in the first clause's reference to "the standard of care." Specifically, § 6-5-551 states that the AMLA applies to a "breach of the standard of care" (clearly a reference to the medical standard of care), before proceeding to state: "whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers." Thus, the acts to which § 6-5-551 applies, whether "acts or omissions in providing health care" or "the hiring, training, supervision, retention, or termination of care givers," must first involve a breach of the "standard of care," i.e., medical care by a medical caregiver. "Medical care" by a "medical caregiver" is the only type of conduct that triggers the application of the AMLA.

Obviously, a hospital exists to provide medical care. Just as obviously, however, that fact does not make all tortious conduct that occurs in a hospital facility at the hands of one employed by the hospital subject to the limitations imposed by the AMLA. If it did, the AMLA would govern claims for injuries resulting from the negligent mopping of floors by a hospital employee, the negligent installation or maintenance of HVAC equipment by a hospital employee, the negligent maintenance or repair of a doorway threshold by a hospital employee, or the negligent maintenance or repair of a stairway railing by a hospital employee. Indeed, it would apply to claims arising from injuries resulting from such acts of negligence even if such acts were performed by a physician or nurse employed by the hospital, or the more plausible scenario of a hospital-employed physician or nurse-or radiology technician-spilling a drink on a hospital floor that causes a third party to slip and fall. The point is that such activities or the hiring or supervision by a hospital of those who engage in such activities does not involve the provision of medical care within the meaning of the AMLA. Disputes over injuries arising from such activities simply do not involve the type of "care" the legislature was addressing when discussing the "standard of care" in the AMLA. See Ala. Code 1975, § 6-5-540 ("It is hereby declared by the Legislature of the State of Alabama that a crisis threatens the delivery of medical services to the people of Alabama and the health and safety of the citizens of this state are in jeopardy.... [I]t is the declared intent of this Legislature to insure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. This Legislature finds and declares that the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden upon those who can least afford such increases, and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and other health care providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential medical services caused by the threat of such litigation constitutes a danger to the health and safety of the citizens of this state, and that this article should be given effect immediately to help control the spiraling cost of health care and to insure its continued availability." (emphasis added)); Ala. Code 1975, § 6-5-549.1(b) ("[I]t is the declared intent of this Legislature to ensure that quality medical services continue to be available at reasonable costs to the citizens of the State of Alabama. The continuing and ever increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden on those who can least afford such increases. The threat of such actions contributes to the performance of expensive medical procedures by physicians and other health care providers which otherwise would not be considered necessary. The spiraling cost and decreasing availability of essential medical services caused by the threat of litigation constitutes a danger to the health and safety of the citizens of this state.... [T]he increasing threat of legal actions for alleged medical injury has resulted in a continuing limitation on the number of physicians providing specialized health care in this state." (emphasis added)).

By the same token, the legislature did not purpose to protect physicians from complaints alleging that the physician has sexually abused a patient. See Vanderwall and Altapointe, supra. By the same token, the legislature did not purpose to protect hospitals from complaints alleging that the hospital negligently hired or negligently supervised a physician who sexually abuses a patient. Such activities do not concern the provision of "medical care" any more than do the other nonmedical activities referenced above (involving the maintenance of hospital premises, etc.). To the extent the AMLA concerns hiring, supervision, etc., of caregivers, such concern is solely with the hiring, supervision, etc. of caregivers qua caregivers. The AMLA does not govern the hiring of caregivers who become tortfeasors apart from the provision of medical care.

Based on the foregoing, the AMLA is inapplicable to the direct-liability claim (the hospital's allegedly negligent or wanton hiring, training, supervision, or retention of Taylor) in the present case. Sexual molestation has no relation to the provision of medical care, see Vanderwall, 201 So.3d at 537 ("We do not believe the legislature intended for the protections afforded under the AMLA to apply to health-care providers who are alleged to have committed acts of sexual assault; such acts do not, by any ordinary understanding, come within the ambit of 'medical treatment' or 'providing professional services.' "), and the AMLA does not address anyone's liability in relation to sexual molestation, whether that of a physician who commits such molestation or of a hospital that negligently hires, trains, supervises, or retains someone who commits such molestation.

The AMLA governs liability and related discovery standards only when the plaintiff's alleged injury results from the negligent or wanton provision of medical care; the fact that a health-care provider is named as a defendant is insufficient, in itself, to summon the protections of the AMLA. If a radiology technician sexually molests a patient, the AMLA no more applies to that activity than it does to a hospital-maintenance employee's engaging in that same activity. Likewise, the AMLA no more applies to the hospital's alleged negligent hiring, training, supervision, or retention of that technician vis-à-vis such activity than it does to the hospital's hiring, training, supervision, or retention of the maintenance employee vis-à-vis such activity.

The alleged misdeed of the hospital in the present case does not raise any question as to whether the hospital engaged in sound hiring or supervisory practices in relation to the quality of Taylor's actions as a radiology technician but, rather, whether the hospital engaged in sound hiring and supervisory practices as to a matter unrelated to medical care. The AMLA, including the discovery limitations of § 6-5-551 and other provisions, therefore is not applicable. To hold otherwise would mean that an AMLA action depends merely on the location and timing of the individual health-care provider's wrongful acts (i.e., whether he or she was on duty in a hospital or a doctor's office), rather than to the type of wrongful acts in which the defendant allegedly engaged. Such a holding would not merely erode Vanderwall, it effectively would eviscerate it. Indeed, I posit that if the applicability of the AMLA is not limited to actions involving the services of a caregiver as a caregiver, then Vanderwall was wrongly decided and we are sub silentio overruling it. If we focus solely on the language of the dependent clauses in § 6-5-551 noted above so as to make an AMLA action merely a matter of timing and location of the allegedly wrongful acts, not whether the defendant's acts relate to the "standard of [medical] care," why did we reject that approach as determinative in Vanderwall? See 201 So.3d at 536 ("[T]he alleged sexual misconduct occurred in the place and during the time that Vanderwall otherwise was engaged in treating M.C. for her back pain. Thus, under the interpretation of the AMLA enunciated in Mock[ v. Allen, 783 So.2d 828 (Ala. 2000),] and reiterated in O'Rear[ v. B.H., 69 So.3d 106 (Ala. 2011) ], M.C.'s allegation of sexual misconduct would be governed by the proof requirements of the AMLA. We cannot in good conscience, however, continue to adhere to the rule articulated in Mock and O'Rear.").

The dissent acknowledges Vanderwall, but I would argue that the position taken in the dissent is more aligned with the view expressed by its author in his dissent in Vanderwall. See Vanderwall, 201 So.3d at 542-44 (Shaw, J., dissenting). A similar argument could be made as to the main opinion. But, as we have held, it is not merely any negligence of a health-care provider occurring in a health-care setting that triggers the application of the AMLA to that provider or his or her employer. The clearly established rule, at least before today, was simply whether the cause of action concerns "the provision of medical services to [a] patient[ ] and failures to meet the applicable standard of care in providing those [medical] services." Vanderwall, 201 So.3d at 540. That rule no longer appears so clear.

SHAW, Justice (dissenting).

I respectfully dissent.

In my writing in Ex parte Vanderwall, 201 So.3d 525 (Ala. 2015), I stated:

"In Mock v. Allen, 783 So.2d 828 (Ala. 2000), this Court rejected the argument that the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ('the AMLA'), '[did] not apply ... because "[t]he acts of intentional sexual assault of which [the patient] complains were for no medical reason" ' and were 'outside the scope of the physician's professional services and did not constitute professional malpractice.' Instead, the rule has been as follows:
" '[M]ost of the reported cases where appellate courts have declined to hold that the physician's conduct constituted professional malpractice involved either an intimate sexual relationship or sexual misconduct having no connection with the rendering of professional services....
" 'By contrast, in cases where the alleged sexual misconduct occurs as part of a physician's examination and/or treatment of a patient, the conduct is considered to have occurred during the delivery of professional services, and is therefore cognizable as a medical-malpractice claim....'
" 783 So.2d at 832-33 (emphasis added)."

Ex parte Vanderwall, 201 So.3d at 542 (Shaw, J., concurring in case no. 1130041 and dissenting in case no. 1130036). Under Mock v. Allen, 783 So.2d 828 (Ala. 2000), the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975 ("the AMLA"), would apply in this case. However, this Court in Ex parte Vanderwall sua sponte overruled Mock. The Court stated: "The AMLA addresses the provision of medical services to patients and failures to meet the applicable standard of care in providing those services." Ex parte Vanderwall, 201 So.3d at 540. The AMLA was not "intended," the Court said, "to apply to health-care providers who are alleged to have committed acts of sexual assault; such acts do not, by any ordinary understanding, come within the ambit of 'medical treatment' or 'providing professional services.' " 201 So.3d at 537.

Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital ("the hospital") does not ask this Court to overrule Ex parte Vanderwall; instead, it argues that, under the rationale of that decision, the AMLA would still apply. In the instant case, the duties allegedly breached by the hospital are stated in the complaint as follows: "[A] duty to the Plaintiffs to properly hire, train, supervise, and retain their employees" and "a duty to protect patients ... from harm while receiving treatment and care...." These duties of the hospital, by their very nature, are duties that arise in "the provision of medical services to patients." Ex parte Vanderwall, 201 So.3d at 540. For purposes of this claim, the hospital is not being sued for "committ[ing] acts of sexual assault." I do not read Ex parte Vanderwall as holding that this claim is outside the AMLA. Further, § 6-5-551 appears to indicate that it applies to negligent or wanton hiring, training, and supervision claims against health-care providers even if the conduct challenged did not result from acts or omissions "in providing health care." Section 6-5-551 states, in applicable part:

"In any action for injury, damages, or wrongful death ... against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action."

(Emphasis added.) See also Ex parte Ridgeview Health Care Ctr., Inc., 786 So.2d 1112, 1116 (Ala. 2000) ("[

Section] 6-5-551 makes it clear that a claim against a health-care provider alleging that it breached the standard of care in hiring, training, supervising, retaining, or terminating its employees is governed by the Alabama Medical Liability Act.").

The plaintiffs also claim that the hospital is vicariously liable for any sexual assault by its former employee, Leland Bert Taylor, Jr. However, "[t]o recover against a defendant under the theory of respondeat superior, it is necessary for the plaintiff ... to establish that the act was done within the scope of the employee's employment." Hendley v. Springhill Mem'l Hosp., 575 So.2d 547, 550 (Ala. 1990) (plurality opinion). If Taylor was acting within the scope of his employment, as alleged in the complaint, then, by necessity, he was engaged in the "provision of medical services to patients," and the AMLA would apply.

Thus, as the main opinion concludes, the AMLA applies to the plaintiffs' claims against the hospital. "To be clear, the application of ... the AMLA in no way denies the plaintiff a cause of action or the ability to seek damages for any alleged misconduct by the defendant. Instead ... the plaintiff's claim is litigated pursuant to certain statutorily prescribed substantive and procedural requirements." Ex parte Vanderwall, 201 So.3d at 542 (Shaw, J., concurring in case no. 1130041 and dissenting in case no. 1130036). When § 6-5-551 applies, "[a]ny party shall be prohibited from conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission."

The hospital argues in its petition that "each of the Plaintiffs is barred from discovery pertaining to any of the other Plaintiffs." Petition, at 4 (footnote omitted). As the main opinion notes, under the unusual facts of this case-there are four plaintiffs and evidence regarding acts related to one plaintiff will, by necessity, be received by the others-"it would be impractical, if not impossible, to prevent each plaintiff from discovering information concerning the alleged acts by Taylor against the other plaintiffs." 260 So.3d at 6. The discovery restrictions of § 6-5-551 do not seem to anticipate a scenario where multiple plaintiffs have joined their claims in this manner and thus, by necessity, receive the same discovery. However, we have held that § 6-5-551 essentially precludes a joint action by multiple plaintiffs in the first place:

"[ Section] 6-5-551 necessarily removes from the trial court any discretion to allow the introduction, in the trial of [one plaintiff's] claims, of any evidence of [a defendant's] alleged wrongful acts and omissions as to [a co-plaintiff], whether with or without limiting instructions.... If both sets of plaintiffs are allowed to prosecute their claims in the same trial, a violation of § 6-5-551 is unavoidable."

Ex parte Brookwood Med. Ctr., 994 So.2d 264, 268 (Ala. 2008).

I agree with the main opinion, however, that the instant petition "has not cited any authority for its argument that the AMLA's 'other acts or omissions' language would preclude plaintiffs who have filed a joint complaint from engaging in discovery related to the same employee by whom they were all victimized." 260 So.3d at 6. However, the petition also challenges the plaintiffs' discovery requests related to wrongdoing by Taylor in regard to other patients, namely, patients who are not the plaintiffs. The hospital's motion for a protective order stated:

"Plaintiffs ... propounded their First Interrogatories to [the hospital] and therein sought expansive discovery as to [the hospital's] knowledge, and any actions it took, relating not only to Plaintiffs['] ... underlying allegations of wrongdoing as to co-Defendant Taylor, but as to any other individual who was allegedly assaulted by Taylor.
"...[The hospital] provided its responses to the aforementioned discovery and asserted appropriate objections to those discovery requests that sought to conduct discovery in violation of Ala. Code §§ 6-5-551 and 22-21-8."

(Emphasis added.)

The hospital states in its petition to this Court:

"This Petition for Mandamus concerns [the hospital's] Motion for Protective Order as to the Plaintiffs' discovery requests seeking information regarding the hiring, training, supervision and retention of Defendant Taylor as well as any complaints the Hospital received pertaining to Taylor. [Section] 6-5-551, Code of Alabama (1975) prohibits discovery of acts of omissions relating to patients other than the patient who has brought the claim. As each of the Plaintiffs is not entitled to discovery regarding the complaints of the other Plaintiffs, the Hospital's Motion for Protective Order should have been granted."

Petition, at 2 (emphasis added).

The challenge in the petition to "any" discovery regarding complaints about Taylor by persons other than the plaintiffs is not a model of clarity; the petition is mainly directed toward challenging the fact that each plaintiff will receive discovery regarding the other plaintiffs. However, the issue was raised in both the motion for a protective order and in this Court. I would grant the petition and instruct the trial court that the discovery restrictions in § 6-5-551 applied to the plaintiffs' discovery requests regarding any individual other than the plaintiffs who was allegedly assaulted by Taylor.

I also respectfully dissent from the main opinion's holding that Ala. Code 1975, § 22-21-8(b), is inapplicable in this case. That Code section states:

"All accreditation, quality assurance credentialling and similar materials shall be held in confidence and shall not be subject to discovery or introduction in evidence in any civil action against a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance and similar functions, purposes, or activities."

The Code section provides that "all" quality-assurance materials are protected in "any" civil action; it does not provide an exception for quality-assurance materials related to an alleged sexual assault by a hospital employee against a patient. It is undisputed that the hospital investigated the allegations against Taylor and produced certain quality-assurance reports as a result of that investigation. The affidavit of Cindy Parten, quoted in the main opinion, makes clear that the information requested by the plaintiffs " 'falls within the ambit of quality assurance inasmuch as investigations of complaints relative to [Taylor] were conducted within the confidentiality afforded the quality assurance process and were intended for its protection and privacy of patients as well as employees.' " 260 So.3d at 8. She further testified that " '[i]t is essential that the discovery ... Plaintiffs seek be kept confidential to ensure that [the hospital] can continue to obtain complete and accurate information about the qualifications and conduct of its employees, both prior to employment and upon initiat[ion] of any quality assurance investigation.' " 260 So.3d at 8. It appears to me that discoverable materials gathered for quality-assurance purposes regarding Taylor are protected by § 22-21-8(b). I would grant the petition and issue a writ of mandamus directing the trial court to enter a protective order regarding those materials. I thus respectfully dissent.

On Application for Rehearing

APPLICATION OVERRULED. NO OPINION.

Stuart, C.J., and Bolin, Parker, Main, Wise, and Bryan, JJ., concur.

Shaw and Mendheim, JJ., dissent.

MENDHEIM, Justice (dissenting).

The original opinion in this case was released on December 15, 2017, before my appointment to the Court. I have reviewed the materials filed on original submission, along with the filings made in connection with the application for a rehearing filed by Tombigbee Healthcare Authority d/b/a Bryan W. Whitfield Memorial Hospital. I agree with the Court's opinion with the exception of its denial of the Authority's request for a protective order pursuant to § 22-21-8 (b), Ala. Code 1975. As to that issue, I agree with Justice Shaw's dissent. Accordingly, I would grant the application for a rehearing and issue a writ of mandamus directing the circuit court to issue a protective order.

      Section 6-5-551 states in relevant part:
      "In any action for injury, damages, or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care, whether resulting from acts or omissions in providing health care, or the hiring, training, supervision, retention, or termination of care givers, the Alabama Medical Liability Act shall govern the parameters of discovery and all aspects of the action. The plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff and shall include when feasible and ascertainable the date, time, and place of the act or acts."
      (Emphasis added.)

      To hold otherwise also would mean that other provisions of the AMLA would be applicable. For example, the plaintiff would be required to present expert testimony from a "similarly situated health care provider" as to the vetting processes used by hospitals for matters unrelated to medical care, including to what degree background checks, criminal and otherwise, must be conducted; to what extent a hospital must require references and contact those references; to what extent a review of social media is required in this day and age, etc. See Ala. Code 1975, § 6-5-548 (expert-testimony requirements). I am unaware of any AMLA action where the AMLA statutory requirement for expert testimony as to the standard of care has been extended to the hiring practices of hospitals as those practices relate to criteria unrelated to the provision of medical services.

      See Altapointe, 249 So.3d at 1120 (Sellers, J., concurring in part and dissenting in part):
      "I believe that, once it is established that a defendant is a health-care provider, then § 6-5-548, Ala. Code 1975, bars discovery of insurance limits. Notwithstanding that the act that is the subject of litigation may not have been related to the provision of medical services, once a threshold determination is made that the defendant is a health-care provider, insurance limits are not discoverable."
      (Emphasis added.)

      I see nothing indicating that Taylor's employment with the hospital involved providing non-medical services. If Taylor indeed sexually abused patients, then he was not acting in the line and scope of his employment, and the hospital could not be held vicariously liable. Hendley, 575 So.2d at 551 (holding that alleged sexual abuse by a purported agent of a hospital was an act based on wholly personal motives having no relation to the business and "a gross deviation from the purpose" of the employment).

      The hospital previously petitioned this Court for mandamus review of the trial court's denial of a motion to sever; that petition was denied. Ex parte Tombigbee Healthcare Auth. d/b/a Bryan W. Whitfield Mem'l Hosp. (No. 1160707, June 30, 2017) (unpublished order). However, "the denial of relief by mandamus does not have res judicata effect." Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala. 2000). Thus, this issue will likely arise again.


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF the JUSTICES
    No. 393
    Supreme Court of Alabama.
    February 14, 2018
   The Honorable Kay Ivey

Governor of Alabama

Alabama State Capitol

Montgomery, Alabama 36130

Dear Governor Ivey:

We have received your letter of February 9, 2018, requesting an advisory opinion from the individual Justices of this Court as to the Governor's obligation under the following language from § 46(b), Ala. Const. 1901: "Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term."

According to your letter, the circumstances giving rise to the request involve "the reported death, on January 16, 2018, of House District 83 Representative George Bandy." According to the request, "[o]nly nine months remain in Representative Bandy's term." "[T]he Secretary of State has advised [the Governor] that a special election would likely occur no earlier than June of this year. The winner of any special election would thus serve for a mere four or five months before leaving office."

You requested an advisory opinion on the following questions:

"(1) Does the Governor bear any duty under the constitution's legislative-vacancy provision before receiving formal notice of a legislator's death from the appropriate probate judge? See Ala. Const. [1901], § 46 ; Ala. Code [1975,] § 36-9-6.
"(2) Does the constitution's legislative-vacancy provision impose on the Governor an absolute duty to call a special election whenever a vacancy occurs regardless of how much time remains in the term of office? See Ala. Const. [1901,] § 46.
"(3) If a special election must be called to fill a legislative vacancy only when practicable, will this Court defer to the Governor's reasonable judgment about the practicability of calling any particular special election? See Ala. Const. [1901,] § 46."

Section 12-2-10, Ala. Code 1975, states that "[t]he Governor, by a request in writing, ... may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions." The Justices have concluded that "[a]dvisory opinions can be given to a Governor where the Governor is required to act on a law which raises constitutional issues." Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So.2d 622, 623 (1975) ; see also Opinion of the Justices No. 274, 394 So.2d 957, 959-60 (Ala. 1981) ; Opinion of the Justices No. 169, 270 Ala. 147, 148, 116 So.2d 588, 589 (1959) ; and Opinion of the Justices No. 70, 247 Ala. 663, 26 So.2d 103 (1946). But, " 'we may answer only narrow questions directed to specific provisions of the State or Federal Constitution.' " Opinion of the Justices No. 341, 632 So.2d 478, 482 (Ala. 1994) (quoting Opinion of the Justices No. 271, 384 So.2d 1056, 1058 (Ala. 1980) ). The Justices may not "answer solely legal questions in advisory opinions." Opinion of the Justices No. 228, 336 So.2d 164, 165 (Ala. 1976).

As stated in Opinion of the Justices No. 1, 209 Ala. 593, 96 So. 487 (1923) :

"Interpreting the [advisory-opinion] act [now codified at § 12-2-10 ] according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not of the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.
"....
"The performance by the Justices of the function the act contemplates is nonjudicial; this for the obvious reason that advisory opinions given do not conclude or vindicate any right or remedy, result in no judgment or decree, bind no one whatsoever."

209 Ala. at 594-95, 96 So. at 488-89 ; see also State ex rel. Bozeman v. Hester, 260 Ala. 566, 570, 72 So.2d 61, 63 (1954) ; and Opinion of the Justices No. 25, 226 Ala. 565, 569, 148 So. 107, 111 (1933). Opinion No. 1 adds that

"[n]either the Legislature nor the Executive have or enjoy any prerogative to ignore or violate the Constitutions. Indeed, obedience to the Constitutions' provisions must be regarded as the desire, the purpose and intent of every department and officer in the government. The practice thus established evinces the highest permissible form of precautionary procedure to preserve constitutional government by invoking the advice of those thought to be peculiarly qualified to give, in advance of action, advice in respect of the Constitution's prescriptions; thereby manifesting a quickening sense of responsibility for submission and conformity to the Constitutions on the part of all who owe that supreme duty to the governments."

209 Ala. at 598-99, 96 So. at 493.

In light of the foregoing, the undersigned Justices respectfully reply as follows to the questions designated:

Question (1)

Section 46 (b) states: "Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term." Section 46 (b) discusses the duty of the Governor "whenever a vacancy occurs"; it contains no qualifying language as to the form or source of notice of that vacancy. A vacancy either exists or it does not, and the Governor either has notice of such a vacancy or the Governor does not. You have informed us that you are aware of the death of Representative George Bandy, and your request for an advisory opinion is premised upon the fact of his death. Thus, no factual controversy exists as to whether Representative George Bandy is deceased.

Section 36-9-1, Ala. Code 1975, states that "[a]ny office in this state is vacated ... [b]y the death of the incumbent." The language of § 36-9-6, Ala. Code 1975, to which you refer in your letter-"[o]n the death ... of any member of the Legislature, the judge of probate of the county in which such officer at the time of his death resided shall give notice thereof to the Governor"-prescribes the duty of the probate judge as to the giving of notice of death to the Governor; that language does not limit the Governor's constitutional obligation under § 46 (b), which arises "[w]henever a vacancy occurs." In short, § 46 (b) directs the Governor to "issue a writ of election" "[w]henever a vacancy occurs in either house of the legislature," not merely upon receipt of notice from the probate court of the legislator's death.

Question (2)

Section 46 (b) states that whenever a vacancy occurs in the legislature, the Governor "shall issue a writ of election." As to the meaning of "shall" in § 46 (b), " 'the long-settled and fundamental rule binding this Court in construing provisions of the constitution is adherence to the plain meaning of the text.' " Town of Gurley v. M & N Materials, Inc., 143 So.3d 1, 13 (Ala. 2012) (quoting Jefferson Cty. v. Weissman, 69 So.3d 827, 834 (Ala. 2011) ). " ' "Constitutions are the result of popular will, and their words are to be understood ordinarily as used in the sense that such words convey to the popular mind" (6 Am. & Eng. Ency. Law, 924, 925).' " Jefferson Cty. v. Weissman, 69 So.3d at 834 (quoting Hagan v. Commissioner's Court of Limestone Cty., 160 Ala. 544, 562, 49 So. 417, 423 (1909) ).

" ' "In construing a constitutional provision, the courts have no right to broaden the meaning of words used and, likewise, have no right to restrict the meaning of those words.' " This Court is " 'not at liberty to disregard or restrict the plain meaning of the provisions of the Constitution.' "

City of Bessemer v. McClain, 957 So.2d 1061, 1092 (Ala. 2006) (quoting City of Birmingham v. City of Vestavia Hills, 654 So.2d 532, 538 (Ala. 1995), quoting in turn McGee v. Borom, 341 So.2d 141, 143 (Ala. 1976) ).

In Ex parte Prudential Insurance Co. of America, 721 So.2d 1135 (Ala. 1998), this Court noted:

" 'Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the Legislature must be given effect.'
" Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So.2d 687, 689 (Ala. 1991) (citations omitted). The word 'shall' is clear and unambiguous and is imperative and mandatory. Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa, supra ; Taylor v. Cox, 710 So.2d 406 (Ala. 1998) ; Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala. 1998) (on application for rehearing) (interpreting the word 'shall' as used in § 6-3-21.1[, Ala. Code 1975 ] ). The word 'shall' has been defined as follows:
" 'As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means "must" and is inconsistent with a concept of discretion.'
"Black's Law Dictionary 1375 (6th ed. 199[0] )."

721 So.2d at 1138 (citations omitted).

The same rule applies to constitutional provisions: "The word 'shall' is considered presumptively mandatory unless something in the character of the provision being construed requires that it be considered differently." Hornsby v. Sessions, 703 So.2d 932, 939 (Ala. 1997) (discussing provision of Amendment No. 328, Ala. Const. 1901, now §§ 139 - 161, Ala. Const. 1901 (Off. Recomp.) ); see also Thompson v. Town of Luverne, 125 Ala. 366, 369, 29 So. 326, 326 (1900) (discussing "the mandatory requirement of § 2, Art. IV of the constitution : 'Each law shall contain but one subject, which shall be clearly expressed in its title.' ").

No language in § 46 (b) supports the conclusion that the term "shall" as used therein has a meaning other than the presumed imperative meaning. Also, the plain meaning of "[w]henever a vacancy occurs" and "to fill such vacancy for the remainder of the term" in § 46 (b) leaves no room for construing "shall" to have any meaning other than the imperative meaning.

Further, courts addressing similar language in the Federal Constitution have concluded that the executive's obligation is mandatory, i.e., that "shall" means "shall." As stated in Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970) :

"The issue at the heart of the instant case is whether the constitutional provision[, U.S. Const. art. I, § 2,] that when vacancies happen the Executive Authority of the state 'shall issue Writs of Election to fill such Vacancies' is mandatory. The language is mandatory according to the ordinary meaning of its terms. We find no persuasive reason for reading it in a directory sense. Indeed it serves to make clear that the people's right to chosen representation is not limited to exercise at a biennial election, but is a continuing right which is not to be defeated by death of a Representative once chosen, or other cause of vacancy.
"In a debate in the House of Representatives in 1804 concerning the validity of a special election questioned on the ground of shortness of notice, Representative Findley stated in support of the prompt holding of the election (held five months before the expiration of the term) that, 'the Executive shall issue writs, is the language of command; it renders the issuing of the writs an indispensable duty.'
"The Attorney General points out that Article I, § 4[, U.S. Const.,] provides: 'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations....' Congress has provided in 2 U.S.C. § 8 that the time for holding an election for a Representative to fill a vacancy may be prescribed by the laws of the state.
"There has been no challenge to the propriety of the Illinois laws which require a total period of 162 days from call to special election. Such provisions would render it useless for the Governor to issue a writ of election where the vacancy occurred 162 days or less before the end of a term, and might well excuse issuance where the vacancy occurred earlier but where the period of possible service could truly be deemed de minimis. Except in those instances the delegation to the state legislature of this power over procedure does not, in our opinion, alter the character of the Governor's duty to issue a writ of election.
"Although the state legislatures are not empowered to decide whether or not a vacancy in the office of Representative is to be filled, we note that the Illinois statutes have provided for many years that when such a vacancy occurs, the Governor 'shall issue a Writ of Election' to the county clerks of the appropriate counties. On November 14, 1917 the Attorney General of Illinois advised the Governor, with respect to a vacancy in the office of Representative, 'In this instance, a public right is involved ... the right of the people of the congressional district to be represented in the House of Representatives in Congress. To hold that the word "shall" is directory, merely, is to put it within the power of the Governor to deprive the people of the congressional district of that right.'
"We hold that defendant had the duty, at the time of the death of Representative Ronan, to issue a writ of election to fill the vacancy. The fact that an election could not be held until January 23, 1970 and that the successor could have served little more than eleven months at the most, would not, in our opinion, justify failure to issue the writ. The Governor's duty, we think, continued, notwithstanding the fact that delay may eventually render the calling of a special election of so little use that the duty will no longer be enforceable.
"....
"We note that a general election will be held November 3, 1970, and that a Representative will then be elected for the term beginning January 3, 1971. We are not aware of any reason why a special election could not be held the same day for a Representative to fill the vacancy for the balance of the term which began January 3, 1969. Such a special election (and the primary which would have to precede it) could be called as late as May 25. We are not prepared to say as a matter of law that representation from the time the results of the November 3 election will be determined to January 3, 1971 is de minimis."

426 F.2d at 1336-37 (footnotes omitted).

A similar discussion appears in American Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641 (6th Cir. 2004) :

"[W]e conclude that Article I, section 2, clause 4 is mandatory, requiring the state's executive to issue a writ to fill a vacancy in the House. We recognize that there may be instances where the time remaining in the congressional term is truly de minimis, thereby excusing the executive from issuing the writ, but the time involved in this case [between five and six months before the end of the term] cannot be considered de minimis.
"We also recognize that Article I, section 4, clause 1 gives states the discretion to determine the 'Times, Places, and Manner' of holding such elections, and that the states have valid interests in ensuring fair and reliable elections.... [L]egislative balancing between a state's interests in ensuring fair and reliable elections, and its citizens' rights to vote and to equal representation, is entitled to considerable deference. Ohio has exercised its discretion to determine the time, place, and manner of elections by enacting a comprehensive election code. Governor Taft complains of the expense, inconvenience, and possible inaccuracies that would have accompanied a special election held on November 5, 2002. We point out that the Ohio legislature, through its election code, has determined the length of time it considers necessary for conducting such a special election. If the Ohio legislature determines that more time is needed to hold such an election, it may amend its election code, and should a need to review such provisions arise, we will accord them appropriate deference.
"Had Ohio's election code imposed requirements that made a special election an impossibility in this case, the ACLU would have been faced with the burden of proving those enacted requirements were unconstitutional. As Governor Taft concedes, however, it would have been possible to hold a special election that complied with the requirements imposed by the legislature in the election code to fill the vacancy in the Seventeenth District.
"In summation, we conclude that Article I, section 2, clause 4 imposed a mandatory duty upon Governor Taft to hold a special election to fill the vacancy in the District created by the expulsion of Traficant. Although there may be situations where an executive's duty is excused because the time remaining on the Congressional term is truly de minimis, this was not such a situation. While legislative balancing of the state's and its voters' interests is entitled to deference, a special election that complied with Ohio's election code could have been held in this case. Therefore, we hold that Governor Taft violated his duty to call a special election under Article I, section 2, clause 4."

385 F.3d at 649 (citations and footnotes omitted); see also Fox v. Paterson, 715 F.Supp.2d 431, 434 (W.D.N.Y. 2010). The few state cases we have found also are in accord. See Jenkins v. Knight, 46 Cal. 2d 220, 224, 293 P.2d 6, 8 (1956) ; Furste v. Gray, 240 Ky. 604, 42 S.W.2d 889, 891 (1931) ; and People ex rel. Comerford v. Miller, 314 Ill. 474, 480, 145 N.E. 685, 687 (1924) ; see also State ex rel. Armstrong v. Davey, 130 Ohio St. 160, 164, 198 N.E. 180, 182 (1935).

Based on the foregoing, we conclude that § 46 (b) requires the Governor to "issue a writ of election." However, as the Jackson and Taft courts correctly noted, any issue as to the timing of such an election is a different issue, one that is not before us.

Question (3)

As is our practice, we respectfully decline to address your third question because it is a hypothetical question assuming an answer to the second question different from the answer given. See, e.g., Opinion of the Justices No. 341, 632 So.2d 478, 482 (Ala. 1994) ; and Opinion of the Justices No. 308, 449 So.2d 239, 240 (Ala. 1984).

In closing, we note that in light of the urgency of this matter we have answered your inquiries as quickly as possible. Our response is, of course, directed only to the language of § 46 (b) to which you referred, as is the practice.

Respectfully submitted,

/s/ Lyn Stuart

Lyn Stuart

Chief Justice

/s/ Michael F. Bolin

Michael F. Bolin

/s/ Tom Parker

Tom Parker

/s/ James Allen Main

James Allen Main

/s/ A. Kelli Wise

A. Kelli Wise

/s/ Tommy Bryan

Tommy Bryan

/s/ Brady E. Mendheim, Jr.

Brady E. Mendheim, Jr.

Associate Justices

____________________

The Honorable Kay Ivey

Governor of Alabama

Alabama State Capitol

Montgomery, Alabama 36130

Dear Governor Ivey:

We have received your letter of February 9, 2018, requesting an advisory opinion from the individual Justices of this Court as to the Governor's obligation under the following language from Ala. Const. 1901, Art. IV, § 46 (b): "Whenever a vacancy occurs in either house of the legislature the governor shall issue a writ of election to fill such vacancy for the remainder of the term."

With one caveat, we agree with the advisory opinion issued today by the other Justices of this Court, in response to your request, that § 46 (b) establishes a mandatory duty requiring the Governor to issue a writ of election to fill a vacancy created by the death of any member of the legislature, notwithstanding the lack of formal notice of such death required by Ala. Code 1975, § 36-9-6. Specifically, we express no opinion regarding whether the "de minimis" doctrine addressed by federal court decisions applying the Federal Constitution in factually similar cases is pertinent when this Court is reviewing the requirements of the Alabama Constitution. It is clear to us that such a de minimis doctrine would have no application here, and we find it unnecessary to address its applicability or parameters. In our view, under the facts presented, compliance with § 46 (b) does not require a useless, futile, or impossible act.

Respectfully submitted,

/s/ Greg Shaw

Greg Shaw

/s/ William B. Sellers

William B. Sellers

Associate Justices

      We have a long-standing policy of declining a request for an advisory opinion on a local matter. Nevertheless, we "have addressed questions concerning local matters when 'necessary to decide such matters in developing rationale to answer other questions of an important constitutional nature which involved general laws.' " Opinion of the Justices No. 383, 925 So.2d 193, 196 (Ala. 2006) (quoting Opinion of the Justices No. 304, 436 So.2d 832, 834 (Ala. 1983) ). Although the factual circumstances prompting your questions concern a vacancy in a single legislative seat, the questions relate to the Governor's duty under the Alabama Constitution as to the calling of a special election. That duty arises from a general law of statewide concern and application.

      Obviously, the Governor could not be called upon to act before he or she knows a vacancy exists, but you have indicated that you are aware of the fact of Representative George Bandy's death and thus of the vacancy of his legislative seat.

      Of course, as the Jackson and Taft courts acknowledge, "the law does not require the doing of a useless or futile act." State ex rel. Garrow v. Grayson, 220 Ala. 12, 24, 123 So. 573, 584 (1929) ; see also, e.g., Citizens' Bank & Trust Co. v. Turner, 23 Ala. App. 23, 25, 122 So. 311, 312 (1928) ; and Shelton v. State, 73 Ala. 5, 10 (1882). Thus, no special election would be required if that election could not be held, and the elected legislator seated, before the expiration of the remainder of the term in which the vacancy occurs. See Jackson, supra ; Taft, supra.

      It would appear the Governor has broad discretion pursuant to law as to the timing of any special election. See Ala. Code 1975, § 17-15-2 ("All special elections shall be held on such day as the Governor may direct.").