Ex parte Thomas, [Ms. SC-2022-0525, Mar. 3, 2023] __ So. 3d __ (Ala. 2023). In a per curiam plurality opinion, the Court (Parker, C.J., and Wise, Stewart, and Mitchell, JJ., concur; Shaw, Cook, and Bryan, JJ., concur in the result; Sellers, J., dissents, which Mendheim, J., joins) denies a mandamus petition filed by Lester Thomas challenging the Mobile Circuit Court’s denial of his motion for summary judgment predicated on state-agent immunity. Jennifer Peach sued Thomas on claims arising from a multi-vehicle accident that took place after Thomas, a State trooper with the Alabama Law Enforcement Agency, allegedly blocked both lanes of I-65 to perform a traffic stop.
Trooper Thomas carried his initial burden on state-agent immunity to establish he “was acting generally within the line and scope of his law-enforcement duties and was attempting to enforce the traffic laws of the State when he initiated the double traffic stop giving rise to this action.” Ms. *10. Peach argued that Thomas acted “beyond his authority … [because he] violated §§ 32-5A-212(a), 32-5A-215(b), and 32-5A-215(d), Ala. Code 1975 (collectively referred to as “the pedestrian statutes”), when he allegedly walked into the left inside lane of I-65 to stop the second speeder.” Ms. **10-11. The plurality concludes that Peach’s arguments raised questions of fact requiring denial of the petition.
At oral argument, Thomas invoked the predicate-act canon which holds that “whenever a power is given by a statute, everything reasonably necessary to effectuate that power is also granted.” Ms. *15, citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 192 (Thomson/West 2012). However, the Court declines to consider this and other arguments Thomas did not raise in circuit court. Ms. *15, quoting State v. Reynolds, 887 So. 2d 848, 851-52 (Ala. 2004)) (“It is well settled that we ‘will not … issue a writ of mandamus commanding a trial judge to rescind an order, based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge, regardless of the merits of a petitioner’s position in the underlying controversy.’”).
The opinion reiterates that on mandamus review of an immunity defense, the Court will not consider secondary arguments that summary judgment was appropriate on grounds other than immunity. Ms. *5 n. 3, citing Ex parte Smith, 327 So. 3d 184, 187 (Ala. 2020).