Substantive Immunity of Municipality

Ex parte City of Muscle Shoals, [Ms. SC-2022-0524, Mar. 31, 2023] __ So. 3d __ (Ala. 2023). The Court (Cook, J.; Parker, C.J., and Wise, Sellers, Stewart, and Mitchell, JJ., concur; Shaw, J., concurs in the result; Bryan and Mendheim, JJ., concur in the result) issues a writ of mandamus directing the Colbert Circuit Court to dismiss claims against the City of Muscle Shoals on the ground of substantive immunity. Residents of the Nathan Estates subdivision sued the City, seeking, “among other things, an injunction directing the City to enact a comprehensive stormwater-management plan or to enforce its existing stormwater-management ordinances to prevent its retention pond located in the subdivision from overflowing and damaging the residents’ property.” Ms. *2.

The Court reiterates that “‘substantive immunity … must be given operative effect only in the context of those public service activities of governmental entities ... so laden with the public interest as to outweigh the incidental duty to individual citizens.’” Ms. *10, quoting Rich v. City of Mobile, 410 So. 2d 385, 387-88 (Ala. 1982). The Court notes “[t]he ‘stormwater management plan’ that the residents seek would, by its nature, be ‘comprehensive’ and, thus, would apply to the entire City. The City correctly asserts that stormwater management is a public-service activity exercised for the collective benefit of all residents of the City, not just certain residents in the subdivision …” Ms. *14. The Court accordingly holds “[t]he City’s decisions about its enactment of a plan or its enforcement of existing ordinances concerning its drainage systems are public-policy decisions made in connection with the City’s responsibility to provide for the public’s safety, health, and general welfare and fall into the category of actions excepted from the general rule of liability.” Ms. *18.

The Court rejects the residents’ argument that the City had an adequate remedy by way of appeal and explains an immunity defense is “‘of such a nature that a party simply ought not to be put to the expense and effort of litigation.’ Ex parte Hodge, 153 So. 3d 734, 748 (Ala. 2014).” Ms. *20, some internal quotation marks omitted.

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