Alabama's Supreme Court Up Close: What to Watch for on March 14
On March 14, 2024, eight members of Alabama’s Supreme Court will convene for a public hearing at the Gogue Performing Arts Center to consider oral arguments in SC-2023-0601 Ex Parte Jackson Hospital & Clinic, Inc., a case concerning the constitutionality of the Alabama COVID-19 Immunity Act (ACIA).
As part of its annual traveling oral argument, Auburn University is among several Alabama higher education institutions to host the proceedings in recent years. Open to members of the Auburn community, attendees will have the opportunity to witness petitioners from both sides address various legal issues associated with the medical malpractice case that addresses several additional legal issues, including amicus curiae briefs filed by Governor Kay Ivey, the Business Council of Alabama, the Alabama Civil Justice Reform Committee, and the Alabama Hospital Association.
We asked two of Auburn’s distinguished faculty members from the Department of Political Science in the College of Liberal Arts, Dr. Steven Brown, Morris Savage Endowed Chair and director of the Law and Justice Program and Ms. Debra Armstrong-Wright, JD, instructor and Pre-Law Program Coordinator, to weigh in on Thursday’s proceedings.
This interview has been edited for length and clarity.
Q. Why is it important that the Alabama Supreme Court hold public hearings like this?
Brown: Americans need to better understand the judicial process. I tell my students that the judiciary is the best known and the least known of our three branches of government. You know everything about the president. You know things going on in Congress, and you can watch C-SPAN if you want to know more. When it comes to the judiciary, people might know from TV crime shows about how trials work, but they have no idea about how oral arguments work or how a court of last resort at the state level or the Supreme Court level works. We elect our justices here in Alabama, but there's very little name recognition. People simply just check the box on their ballot. So, having an opportunity to give some exposure to this part of the judiciary that's not very well known is very important in terms of civic education.
Q. What are the most important issues the justices will be considering in this hearing?
Brown: The justices will consider the circuit court judge's interpretation of the ACIA, because his interpretation broadens the ability of people to bring suit, which the ACIA was designed to limit. If his decision stands, you're going to see a lot more cases filed against hospitals.
Armstrong-Wright: Another interesting issue relates to the hospital’s request for summary judgment [a court decision without a full trial] on the question of whether the hospital was entitled to immunity. A motion for summary judgment is based on an argument that there “are no genuine issues of material fact” so that the court can render a judgment by applying the applicable law to those facts. If the material facts are not in dispute, there is no need for a trial since that is usually how the facts are established. Normally a summary judgment would be entered after the parties have had ample time to discover the facts. In this case, it appears that Theresa Johnson’s attorney asked for the opportunity to depose the two respiratory therapists [who cared for her husband] after the trial court had entered summary judgement in favor of the hospital. By asking for leave to depose additional witnesses (both of whom would be key to determining whether the hospital was operating under an alternative standard of care, or was negligent, wanton, reckless, or willful) suggests there was a disagreement over the material facts of the case. I am very curious as to the timing.
In addition, the questions at hand include whether the governor had the authority to issue a proclamation that provided some limited liability and whether the Alabama COVID Immunity Act can be applied retroactively, and that's a significant question. Typically, laws don't apply retroactively to eliminate a vested right. Theoretically, Ms. Johnson’s claim would have vested, if at all, in December.
And then there are the constitutional issues. Apparently, the trial court judge didn't decide whether the immunity provisions themselves were constitutional, and I think the Alabama Supreme Court is going to have to address that.
Q. Why is it important that the Alabama Supreme Court hold public hearings like this?
Brown: Americans need to better understand the judicial process. I tell my students that the judiciary is the best known and the least known of our three branches of government. You know everything about the president. You know things going on in Congress, and you can watch C-SPAN if you want to know more. When it comes to the judiciary, people might know from TV crime shows about how trials work, but they have no idea about how oral arguments work or how a court of last resort at the state level or the Supreme Court level works. We elect our justices here in Alabama, but there's very little name recognition. People simply just check the box on their ballot. So, having an opportunity to give some exposure to this part of the judiciary that's not very well known is very important in terms of civic education.
Q. What are the most important issues the justices will be considering in this hearing?
Brown: The justices will consider the circuit court judge's interpretation of the ACIA, because his interpretation broadens the ability of people to bring suit, which the ACIA was designed to limit. If his decision stands, you're going to see a lot more cases filed against hospitals.
Armstrong-Wright: Another interesting issue relates to the hospital’s request for summary judgment [a court decision without a full trial] on the question of whether the hospital was entitled to immunity. A motion for summary judgment is based on an argument that there “are no genuine issues of material fact” so that the court can render a judgment by applying the applicable law to those facts. If the material facts are not in dispute, there is no need for a trial since that is usually how the facts are established. Normally a summary judgment would be entered after the parties have had ample time to discover the facts. In this case, it appears that Theresa Johnson’s attorney asked for the opportunity to depose the two respiratory therapists [who cared for her husband] after the trial court had entered summary judgement in favor of the hospital. By asking for leave to depose additional witnesses (both of whom would be key to determining whether the hospital was operating under an alternative standard of care, or was negligent, wanton, reckless, or willful) suggests there was a disagreement over the material facts of the case. I am very curious as to the timing.
In addition, the questions at hand include whether the governor had the authority to issue a proclamation that provided some limited liability and whether the Alabama COVID Immunity Act can be applied retroactively, and that's a significant question. Typically, laws don't apply retroactively to eliminate a vested right. Theoretically, Ms. Johnson’s claim would have vested, if at all, in December.
And then there are the constitutional issues. Apparently, the trial court judge didn't decide whether the immunity provisions themselves were constitutional, and I think the Alabama Supreme Court is going to have to address that.
Q. An hour -- 30 minutes for each side -- seems like a short period of time to hear multiple arguments. What are the justices attempting to do in this brief time frame?
Brown: Unlike the U.S. Supreme Court, the Alabama Supreme Court doesn’t always hold oral arguments on the cases they consider, but when they do, they usually give 30 minutes per side. The key is there’s nothing new that will come up. The justices have read all the briefs. They're familiar with the issues. What you don't get from the written brief though, is a little bit more clarity, maybe a little bit more application. The justices may want to know from each party, “If we rule for you, what are the ramifications generally?”
In the midst of their presentations, it’s likely that the attorneys will be interrupted by the justices, and they'll have to answer the questions and try to get back on track. It can be extremely nerve wracking for some of the attorneys. Others are very smooth, and they go with the flow, and it'll be a great thing for all of us who have a chance to view it. But if an attorney stumbles or the justices are hammering them with aggressive questions, don’t assume they’ve done a poor job and they’re going to lose. It’s not about the presentation itself. The justices are gaining information in the context of the presentation coupled with the written briefs.
Q. How are you preparing your students for the experience?
Armstrong-Wright: There are many misconceptions about courts in general, but appellate courts in particular. I teach health law and talk about the difference between trial courts and appellate courts in the beginning of the semester because we study opinions by appellate courts. I usually find that the typical student is unaware that there is a difference in the proceedings. Seeing oral argument will be eye opening to most students. We’re studying medical malpractice now and I'm having the students read the case. I’m asking them to look for evidence of what we have been covering in class in general, the direct application of the Alabama Medical Liability Act, and what happens on the appellate level. Several of the cases we have read and discussed in class are cited in the court documents for this case.
Brown: In my constitutional law classes, we conduct a moot court exercise where we'll take a case that's currently before the Supreme Court in which oral arguments have not yet been heard, and role play that. The U.S. Supreme Court's oral arguments, while they're recorded, are not televised. And so students have no idea what that actually looks like. It's going to be very beneficial for my students this semester who will be involved in our moot court.
Q. Are the outcomes of this case likely to have repercussions for hospitals and health care providers in Alabama going forward?
Armstrong-Wright: Absolutely. If a governor cannot declare an emergency and issue some kind of protection from liability for health care providers when they are asked to put their own lives and safety on the line without the fear of being sued, then what do we do? The legislature likely cannot respond in a timely manner. In this case, there is the protection for a patient who can show by clear and convincing evidence that a health care provider engaged in willful, wanton, and reckless or intentional conduct. In such cases, the hospital is in jeopardy of losing its immunity. If the Supreme Court justices decide not to overturn the decision of the lower court, it could have a dire impact on the future of health care, and other businesses, who must operate in unpredictable circumstances during a time of emergency.
Brown: I would add that when you're talking about executive orders by the president or by a governor, there may be a lot of criticism of their acting unilaterally, but oftentimes you can't get all the legislators together in a timely fashion to make decisions especially when you're talking about a pandemic. With all the time that goes into committee hearings and the legislative process generally, what greater danger has been created by failing to act quickly? Better to act now and deal with the repercussions later. It's one thing when you're talking about other issues, but when its health related, time is of the essence.
Q. Could this issue of immunity rise to the US Supreme Court?
Brown: I don't think so. People say you can take anything to the Supreme Court, but technically, that's not true. The Court will look at things that involve U.S. constitutional matters, questions grounded in federal statutes, federal policies, regulations, things like that. The Supreme Court previously denied certiorari [an order by which a higher court reviews the decision of a lower court] to a case out of California, in the Ninth Circuit, in which a nursing home claimed immunity under the 2005 Public Readiness Emergency Preparedness Act or PREP. The Ninth Circuit found that the issue should be considered under state law.
Armstrong-Wright: I didn't see anything arguing there was a violation of the U.S. Constitution.
Q. Will this case set the standard for future pandemics?
Brown: I would say it has implications not just for a future COVID pandemic, but a pandemic that's never been imagined. There's going to be something else down the road. There just has to be -- we're so intertwined globally as a people. And when you have to come up with a crisis response plan, you are under pressure to act. To handcuff healthcare professionals so they can't respond in a timely manner would seem to undermine the very thing they're trying to do.
Armstrong-Wright: Medical malpractice is “failure to do what a reasonable, prudent practitioner would have done in the same circumstances”. So, they are held to an established standard of care, but in this case the hospital was operating under an uncertain and evolving standard of care. In November of 2020 we did not know what we were dealing with. And I think Steve is exactly right; with the global society we have, this is only going to become more and more prevalent, so I think this is a very interesting case but a very important case as well.
Admission to the hearing is free, but registration is required. For more information, visit Auburn’s Oral Argument website.
