Are There Constitutional Issues With Alabama's Gubernatorial and Legislative Responses to the Covid-19 Pandemic?

JurisdictionAlabama,United States
CitationVol. 83 No. 5 Pg. 0311
Publication year2022
Are There Constitutional Issues With Alabama's Gubernatorial and Legislative Responses to the COVID-19 Pandemic?

Vol. 83 No. 5 Pg. 311

The Alabama Lawyer

September, 2022
By David G. Wirtes, Jr., Joseph D. Steadman, Aaron N. Maples, and Joseph D. Wirtes

The coronavirus known as COVID-19 reportedly infected the first American on January 21, 2020.1 According to the Alabama Department of Health, Alabama has to date suffered 19,890 deaths2 and 45,9763 hospitalizations from the virus. In this same time period, 1,053,969 Americans have died,4 while 92,761,865 Americans have been confirmed as infected.5

In response, every state declared states of emergency at one point or another.6 For example, on March 10, 2020, Michigan Governor Gretchen Whitmer issued an executive order declaring a state of emergency.7 Alabama's Governor Kay Ivey followed suit three days later when she issued Alabama's first COVID-19 Emergency Proclamation on March 13, 2020.8 While responses varied from state to state, most enacted stay-at-home orders, required closures of specific businesses, limited public gatherings, and mandated the wearing of masks in public.9

To be sure, the COVID-19 pandemic presented challenges warranting creative and aggressive governmental responses. But any such responses are required to be tailored to fit within settled limits upon the exercise of governmental power imposed by our state constitution.

However, Governor Ivey's use of COVID-19 emergency proclamations to abolish causes of action, change the standard of care, and confer immunity pursuant to Alabama's Emergency Management Act of 1955 (the "AEMA"), Ala. Code §§ 31-9-1 to -24 (1975), raises serious constitutional questions because it may not fit within those settled limits.

The Alabama Legislature's subsequent promulgation in 2021 of the COVID-19 Immunity Act ("ACIA"), §§ 6-5-790 to -799 likewise raises constitutional questions because it purports to retroactively abolish accrued causes of action, change the standard of care, and confer immunity.

In this article we first discuss pertinent Alabama constitutional provisions and the cases interpreting them that discuss the limits of the legislature's ability to delegate legislative power to the executive branch. We next catalogue Governor Ivey's emergency proclamations which purport to change Alabama negligence law and confer immunity upon COVID responders and businesses and explain how such proclamations may not withstand constitutional scrutiny. We move from there to demonstrating how retroactive application of the ACIA to deprive victims of vested negligence causes of action likewise may not withstand constitutional scrutiny. Finally, we examine the Michigan Supreme Court's decision in Midwest Institute of Health, PLLC v. Whitmer, an analogue to Alabama's unfolding situation, where the Supreme Court of Michigan held similar governmental responses to the COVID-19 pandemic unconstitutional under Michigan law.

In doing so, our article aims to assist Alabama lawyers contemplating or confronted with defenses to COVID-related injury and death claims premised upon gubernatorial proclamations, the AEMA, and/or the AICA.

Pertinent State Constitutional Provisions

• Article I, § 13 of the Alabama Constitution of 1901: "[T]hat all courts shall be open, and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law, and right and justice shall be administered without sale, denial, or delay."

• Article I, § 21 of the Alabama Constitution of 1901: "That no power of suspending laws shall be exercised except by the legislature."

• Article I, § 35 of the Alabama Constitution of 1901: That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assume other functions it is usurpation and oppression.

• Article III, § 42 of the Alabama Constitution of 1901 : (a) The powers of the government of the State of Alabama are legislative, executive, and judicial. (b) The government of the State of Alabama shall be divided into three distinct branches: legislative, executive, and judicial. (c) To the end that the government of the State of Alabama may be a government of laws and not of individuals, and except as expressly directed or permitted in this constitution, the legislative branch may not exercise the executive or judicial power, the executive branch may not exercise the legislative or judicial power, and the judicial branch may not exercise the legislative or executive power.

Pertinent Overarching Rules of Construction

• "But it is insisted that this law was enacted by the Legislature to meet an emergency. That emergencies do not authorize the suspension of the Constitution and its guaranties was settled nearly three quarters of a century ago..." City of Mobile v. Rouse, 233 Ala. 622, 625, 173 So. 266, 268 (1937), citing Ex parte Milligan, 4 Wall.2, 120-121, 18 L.Ed. 281(1866).

• "'Public policy considerations cannot override constitutional mandates.'" Ex parte Bentley, 116 So. 3d 201, 203 (Ala. 2012), quoting Camp v. Kenney, 673 So. 2d 436, 438 (Ala. Civ. App. 1995).

• "[E]ven in a pandemic, the Constitution cannot be put away and forgotten." Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S. ___, ___, 141 S.Ct. 63, 68, 208 L.Ed. 2d 206, 210 (U.S. 2020).

Governor Ivey's Emergency Proclamations

On March 13, 2020, Governor Ivey declared a state of emergency in response to the COVID-19 pandemic and issued her first Emergency Proclamation.10 In her initial proclamation, Governor Ivey stated that any "alternative standards of care" adopted by health care facilities were declared to be "state-approved" and that the "degree of care" owed to patients by health care professionals under §§ 6-5-540 to -552 (the Alabama Medical Liability Act ("AMLA")) would be suspended as a result of her proclamation.

Governor Ivey issued 27 supplemental proclamations, each addressing miscellaneous topics impacting Alabama citizens.11 Of those, the Fifth and Eighth Supplemental proclamations purport to make substantive changes to Alabama civil tort and damages law. While these provisions of Governor Ivey's COVID-19 emergency proclamations expired by their own terms on October 31, 2021, they purport to impact all causes of action for personal injuries and wrongful deaths accruing while Alabama remained within a state of emergency.12

The Fifth Supplemental Proclamation was issued on April 2, 2020.13 It authorizes certain health care officials, such as certified registered nurse practitioners and nurse anesthetists, to have an expanded scope of practice during the state of emergency. It also requires state health agencies to allow expedited licensures or temporary permits for medical professionals from out of state to practice in Alabama and further calls for the expedited reinstatement of medical licenses for those who have maintained good standing in Alabama, who have no disciplinary history in Alabama or elsewhere, and are deemed competent by the Alabama Board of Medical Examiners and Medical Licensure Commission.

The Eighth Supplemental Proclamation was issued on May 8, 2020.14 This proclamation aims to confer broad immunity to health care providers who provide care arguably impacted by COVID. It also purports to confer on businesses broad immunity for liability from "death or injury to persons or for damage to property in any way arising from any act or omission related to, or in connection with, COVID-19 transmission...." The proclamation purports to immunize businesses even from claims arising from alleged failure to abide by public health guidance aimed at stopping or slowing the spread of COVID-19.

The proclamation consists of three key sections: "Findings," "Definitions," and "Emergency Protections." The Findings section contains a series of declarations in which Governor Ivey explains her reasoning for granting immunity to health care providers. For example, the governor references the poor economy, the closure of many businesses, and that mortality rates increase significantly during periods of high employment.

The Definitions section specifies the actions and inactions by health care providers deemed exempt from liability. The essential term is labeled as a "Covered COVID-19 response activity." This term is said to cover "any performance or provision of health care services or treatment... that resulted from, was negatively affected [or]... impacted by a lack of resources caused by, or... in response to the COVID-19 pandemic..." The pertinent excerpts from this proclamation are as follows:

1. "Covered COVID-19 response activity" means any or all of the following activities by a business, health care provider or other covered entity:

a. Any testing, distribution of testing materials, monitoring, collecting, reporting, tracking, tracing, investigating, or disclosing exposures or other information in connection with COVID-19 during the ongoing state of emergency;

b. Any performance or provision of health care services or treatment by a health care provider that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the COVID-19 pandemic or the State's response thereto;

c. Any design, manufacture, distribution, allowance, use, or non-use of precautionary equipment or supplies such as PPE in connection with COVID-19 during the ongoing state of emergency;

d. Any design or manufacture of testing materials done under the direction of ADPH and in accordance with ADPH's specifications.

May 8, 2020 Eighth Supplemental Emergency Proclamation, ¶I(B)(4)(a-d).

The Emergency Protections section purports to amend the standard of care owed by health care providers under Alabama law, the standard of proof to prove a breach of the standard of care and imposes limitations on recoverable...

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