Ex parte Bobby Scott, et al., [Ms. SC-2024-0473, Jan. 10, 2025] __ So. 3d __ (Ala. 2025). In a unanimous decision, the Court (Bryan, J.; Parker, C.J., and Shaw, Wise, Sellers, Mendheim, Stewart, Mitchell, and Cook, JJ., concur) grants in part and denies in part a mandamus petition filed by Bobby Scott, the mayor of the City of Center Point (“the city”); Roger A. Barlow, the former council president of the city; and D.M. Collins, the current council president of the city (collectively referred to as “the city officials”) seeking an order directing the Jefferson Circuit Court to dismiss claims filed against them based on allegations that they participated in enacting a city ordinance.
The Court reiterates that
Alabama’s common-law doctrine of legislative immunity is consistent with that of the Restatement (Second) of Torts, which states that “‘“[a] public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.”’” Id. (quoting Tutwiler Drug Co. v. City of Birmingham, 418 So. 2d 102, 105 (Ala. 1982), quoting in turn Restatement (Second) of Torts § 895D (Am. L. Inst. 1974)) (emphasis omitted). Legislative immunity is absolute, and it applies regardless of whether the motives of the legislator were pure or not. Id. Further, this Court has held that enacting a municipal ordinance is a legislative function. Ex parte Finley, 246 Ala. 218, 220, 20 So. 2d 98, 100 (1944).
Ms. **10-11.
The Court issues the writ as to the individual capacity claims and explains “[b]ecause the city officials’ alleged conduct was a legislative function, they are entitled to legislative immunity from all claims asserted against them in their individual capacities based on that conduct.” Ms. *11. The Court explains “dismissal [on the pleadings] of claims based on legislative immunity is appropriate if the only conduct alleged against a defendant falls within a legislative function.” Ms. *15. The Court also reiterates that “legislative immunity is not based on § 14 [of the Alabama Constitution]. Rather, it is a common-law immunity doctrine.” Ms. *16.
Reiterating that “the refusal to perform an imperative duty is an essential element for mandamus relief,” the Court denies the writ seeking dismissal of the official-capacity claims because in the trial court “the city officials failed to assert either type of immunity [legislative or state-agent] as a basis for the dismissal of the landlords’ official-capacity claims.” Ms. **9-10. The Court notes
State-agent immunity is an affirmative defense. Alabama State Univ. v. Danley, 212 So. 3d 112, 131 (Ala. 2016). As such, State-agent immunity, unlike State immunity, can be waived. McGilvray v. Perkins, [Ms. SC-2023-0966, June 21, 2024] ___ So. 3d ___, ___ n. 2 (Ala. 2024). This Court has not directly addressed whether legislative immunity can be waived. However, the city officials have not presented us with any argument that legislative immunity is jurisdictional and may not be waived, and we are aware of no precedent of this Court so holding. Under these circumstances, we conclude that the city officials have failed to demonstrate a clear legal right to a dismissal of the landlords’ official capacity claims based on the notion that legislative immunity is a jurisdictional issue that cannot be waived. See Ex parte Jones, [Ms. SC-2023-0812, Sept. 27, 2024] ___ So. 3d ___ (Ala. 2024).
Ms. *10, n. 2.