PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 96-7171

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D. C. Docket No. CV-94-PT-1566-M

ROBERT EUGENE WOODS, acting on his

behalf and on behalf of others

similarly situated, JAMES MICHAEL O’BRIEN,

acting on his behalf and on behalf of others

similarly situated,

Plaintiffs-Appellees,

versus

BEN GAMEL, in his individual capacity

and in his official capacity as the

prior Sheriff of Marshall County, et al.,

Defendants-crossclaimants,

NEAL FOSSETT, in his individual capacity

and in his official capacity as Marshall

County Commissioner,

GRADY BURT, in his individual capacity and in

his official capacity as Marshall County

Commissioner,

LARRY FLACK, in his individual capacity and in

his official capacity as Marshall County

Commissioner,

DWIGHT KELLY, in his individual capacity and

in his official capacity as Marshall County

Commissioner,
 1

Defendants filed a motion to dismiss

arguing that they were entitled to either

absolute legislative immunity or qualified

immunity. The district court concluded

that no immunity applied in this case and

2

ELTON SIMS, in his individual capacity and in

his official capacity as Marshall County

Commissioner,

Defendants-crossclaimants-Appellants,

ALABAMA DEPARTMENT OF CORRECTIONS,

THOMAS HERRING, Commissioner,

Defendants-Crossdefendants.

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Appeal from the United States District Court

for the Northern District of Alabama

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(January 14, 1998)

Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Defendants appeal the denial of a motion to dismiss based

upon immunity.1

 We conclude that defendants are entitled to
denied the motion.

3

absolute legislative immunity. We reverse and remand for

further proceedings.

Background

Plaintiffs instituted an action under 42 U.S.C. § 1983

against the commissioners of Marshall County, Alabama, in

their individual and official capacities. This appeal pertains to

the district court’s denial of defendant county commissioners’

motion to dismiss (treated as a motion for summary judgment

by the district court). Given the nature of the motion, only the

portion of the suit brought against the county commissioners

in their individual capacities for money damages is at issue in

this appeal.

Plaintiffs -- current and former inmates at the Marshall

County Jail -- sued the defendants alleging jail overcrowding,
4

poor health care and health care facilities in the county jail,

inadequate supervision by jail officials, and other deficiencies

in the county jail’s administration and supplies. According to

plaintiffs, the claim against the county commissioners stems

from the commissioners’ responsibility under Alabama law to

pass an annual budget for county expenses:

It shall be the duty of the county commission,

at some meeting in September of each calendar

year . . . to prepare and adopt an estimate of the

income of the county for the fiscal year beginning

on October 1 of the current calendar year for all

public funds under its supervision and control,

and to estimate for the same fiscal year the expense

of operations and to appropriate for the various 

purposes the respective amounts that are to be 

used for each of such purposes; provided, that

the appropriation so made shall not exceed the

estimated total income of the county available 

for appropriations.

Ala. Code § 11-8-3 (1975).

Defendants filed a motion to dismiss claiming that they

were entitled to absolute legislative immunity from the suit
 2

In the alternative, Defendants claimed

they were entitled to qualified immunity

because the right to certain funding for

the jail was not already clearly established.

Because we conclude that the county

commissioners are entitled to absolute

legislative immunity, we do not decide the

issue of qualified immunity.

5

against them in their individual capacities because the act of

passing a county budget was a legislative act.2

Discussion

A district court’s denial of a motion to dismiss based upon

absolute legislative immunity is reviewed by this Court de
 3

A denial of absolute legislative

immunity is immediately appealable under

the collateral order doctrine. See Crymes

v. Dekalb County, Ga., 923 F.2d 1482, 1484

(11th Cir. 1991). Issues such as this one are

immediately appealable because legislative

immunity provides immunity from suit,

not simply immunity from damages. See

Brown v. Crawford County, Ga., 960 F.2d

1002, 1010 (11th Cir. 1992). Thus, we have

jurisdiction over this appeal.

6

novo.

3

 See Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056,

1060 (11th Cir. 1992).

Legislative immunity was established in the Speech and

Debate Clause of the United States Constitution. U.S. Const. art.

I, § 6, cl. 1. The clause protects not only the speech and debate

of legislators, but also voting on legislative acts. See Kilbourn

v. Thompson, 103 U.S. 168, 204 (1880). This absolute legislative

immunity has been extended by the Supreme Court, beyond
 4

Even if the commissioners acted out of

evil intent, the legislative nature of the

act still controls. See Ellis v. Coffee County

Bd. of Registrars, 981 F.2d 1185, 1191 (11th Cir.

1993) (Absolute immunity is an absolute

protection, not a good faith protection

such as qualified immunity.).

7

federal legislators, to state and regional legislators. See

Supreme Court of Virginia v. Consumers Union, 446 U.S. 719,

732 (1980). And, absolute legislative immunity has been

extended further to include local legislators. See Hernandez v.

City of Lafayette, 643 F.2d 1188, 1193 (5th Cir. 1981). Thus,

county commissioners can be entitled to legislative immunity

when acting in their legislative capacities. 

Legislators have absolute immunity under section 1983

when they are “acting within their legislative roles,” performing

“legislative acts.”4

 Brown, 960 F.2d at 1011 (quoting Tower v.

Glover, 467 U.S. 914, 920 (1984)). But, the immunity “extends
8

only to actions taken within the sphere of legitimate legislative

activity.” Id. (quoting Finch v. City of Vernon, 877 F.2d 1497,

1505 (11th Cir. 1989)). It is the nature of the act, and not the

position of the actor, which determines when absolute

legislative immunity will apply. See Yeldell, 956 F.2d at 1062.

Thus, whether the Marshall County Commissioners are entitled

to such immunity depends upon whether when making

budgetary decisions -- including budgeting for the county jail --

they were acting in their legislative capacity: was approving

the budget a “legislative act”?

An act is deemed legislative, rather than administrative or

managerial, when it is policymaking and of general application.

See Brown, 960 F.2d at 1011. “Only those acts which are

‘necessary to preserve the integrity of the legislative process’

are protected.” Yeldell, 956 F.2d at 1062 (quoting United States

v. Brewster, 408 U.S. 501, 517 (1972)). “[V]oting, debate and

reacting to public opinion are manifestly in furtherance of
9

legislative duties.” DeSisto College, Inc. v. Line, 888 F.2d 755,

765 (11th Cir. 1989).

In this case, the commissioners’ act of passing the budget

was legislative: policymaking of general application. The

county commissioners deliberated and then voted on a budget

resolution for the entire county, not just the jail. The

commissioners had a duty to adopt a budget under Alabama

Statute § 11-8-3, which requires counties to pass annual

budgets for all county-funded agencies and to do so without

appropriating more funds than the county expects to collect for

that year. 

Plaintiffs argue that, although voting -- such as voting for

a budget -- is generally a legislative act, in this case the act of

voting on the budget (specifically for the jail) was no legislative

act because it was not an act of general application. This

concept was the district court’s premise as well. We cannot

agree.
 5

The budgeting process in Marshall County includes

(specifically as to the jail) a proposed budget by the sheriff,

which budget is then reviewed by the chairman of the

commission, who provides his recommendation to the whole

commission, which then debates the funding of each county

agency (including the jail). By the way, the amounts

appropriated for the Marshall County Jail never departed

significantly from the requested appropriations provided by the

sheriff: 1991-92 – requested $458, 955.80, appropriated $392,

564; 1992-93 – requested $476,186, appropriated $404,625;

1993-94 – requested $474,637, appropriated $455,177. Alabama

law prohibited budget deficits on the part of the county: the

county commissioners, when funding the county government,

are basically limited to the money to be collected in local taxes

each year.

10

Voting is not automatically a legislative act. See Crymes,

923 F.2d at 1485 (act of voting alone does not make act

legislative if the vote simply enforces existing policy instead of

creating policy); see also Smith v. Lomax, 45 F.3d 402, 405 (11th

Cir. 1995). But, in this case, the voting that was needed to pass

the county budget was legislative.

The statute under which the commissioners were given the

authority to pass this budget requires an annual budget for all

county expenses.5 Thus, a decision to provide more funds for

the jail necessarily results in fewer funds for other public
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projects: the budget creates policy by allocating limited

resources. See Rateree v. Rockett, 852 F.2d 946, 950-51 (7th

Cir. 1988) (“Budgetmaking is a quintessential legislative

function reflecting the legislators’ ordering of policy priorities

in the face of limited financial resources.”) (citation omitted).

Because the budget sets spending priorities, the passing of the

budget is both policymaking and of general application,

affecting all county residents. 

 Although we have not specifically ruled on the applicability

of legislative immunity to local budgetary decisions, other

circuits have addressed this issue and have held that absolute

immunity applies to budgetary decisions. See, e.g., Alexander

v. Holden, 66 F.3d 62, 65 (4th Cir. 1995) (budget decisions

generally made in a legislative capacity); Rateree, 852 F.2d at

950 (The budgetary process is a “uniquely legislative

function.”). Cf. Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)

(local legislators “absolutely immune from personal liability

under 42 U.S.C. § 1983 for making legislative decisions of the
12

sort present here, including budgetary allocations”). We agree

with those decisions. The budgetary decisions made by

defendants for funding the county -- including the jail -- are

legislative acts protected by legislative immunity.

Defendant commissioners are entitled to absolute

immunity from this suit, and their motion to dismiss (treated as

a motion for summary judgment) should have been granted in

favor of each commissioner sued for money damages in his

individual capacity.

REVERSED and REMANDED.