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Ex parte Cranman6/16/2000
ion. Sellers v. Thompson, 452 So. 2d 460 (Ala. 1984). Consequently, any statements made in Finnell v. Pitts, supra, and Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907) (the only Alabama authority on which the majority of this Court relied in Finnell), regarding the application of the qualified immunity defense should be considered in light of these later holdings." 605 So. 2d at 829-30.
This Court in Taylor noted that the sweep of Finnell had been restricted by DeStafney.
Our more recent cases dealing with the question when conduct constitutes the performance of a discretionary function as opposed to the performance of a ministerial function have used language that suggests a requirement that the actor be involved in "planning tasks" and "policy-level decision-making" in order to qualify for immunity. See Defoor v. Evesque, 694 So. 2d 1302, 1305 (Ala. 1997), followed in Town of Loxley v. Coleman, 720 So. 2d 907 (Ala. 1998). Recently, the Court of Civil Appeals referred to conduct that falls under the heading of "ministerial functions" as "characterized by operational tasks and minor decision-making." Kassaw v. Minor, 717 So. 2d 382, 385 (Ala. Civ. App. 1998). This language in these recent cases could be read as disallowing State-agent immunity in instances where the actor, even though he may be making a complex decision beyond the range of the lay person, is not involved at the time in decision-making that directly relates to the exercise of a governmental-policy judgment.
Under the most elementary elaboration of the DeStafney formulation, conduct related to policy and planning and involving the exercise of judgment carries immunity, while ministerial acts carrying out the commands of decision-makers do not. However, at least two primary problems arise in the application of this test drawn from the American Law Institute's appreciation of prevailing law from around the country.
First, as is the case with liability under the Federal Tort Claims Act, as discussed in Berkovitz v. United States, see note 17, cases from other jurisdictions often draw the line in the context of statutory remedies under which all agents enjoy immunity and therefore the point of demarcation relates only to the extent to which the public coffers will be open. These decisions arising in a context where all agents are immune do not have to reckon with the effect upon the rendition of governmental services if agents are inclined to indecision rather than risk personal liability. However, because we are bound by the aforementioned constitutional provisions, we cannot allow such extraconstitutional considerations to control the outcome.
Second, as long as the agent has not disobeyed clear instructions, almost any challenged conduct can be reduced to the exercise of some degree of judgment or discretion. However, judicial deference to all conduct in which judgment or discretion is employed would exalt the immunity of § 14 over the right to a remedy preserved by § 13. As an example, there should be some recognizable difference in legal consequence between, on the one hand, a prison warden's decision not to fire or not to sanction the entity contracting with the State Department of Corrections to provide medical services and, on the other hand, a decision by the driver of a pickup truck on how to drive through or around potholes while transporting prisoners. Each situation involves judgment or discretion. Under our recent cases, the warden is immune and the truck driver is not.
We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution o
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