                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-7171.

 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,

                                                  v.

   Ben GAMEL, in his individual capacity and in his official capacity as the prior Sheriff of
Marshall County, et al., Defendants-cross-claimants,

     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, Elton Sims, in his individual capacity and in his official capacity
as Marshall County Commissioner, Defendants-cross-claimants-Appellants,

    Alabama Department of Corrections, Thomas Herring, Commissioner, Defendants-Cross-
defendants.

                                            Jan. 14, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-94-PT-
1566-M), Robert B. Propst, Judge.

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 absolute legislative immunity. We reverse and remand for further

proceedings.

                                             Background



   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 denied the motion.
        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, 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 against them in their individual capacities because the act of passing a

county budget was a legislative act.2

                                             Discussion



   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.
        A district court's denial of a motion to dismiss based upon absolute legislative immunity is

reviewed by this Court de 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, 26

L.Ed. 377 (1880). This absolute legislative immunity has been extended by the Supreme Court,

beyond federal legislators, to state and regional legislators. See Supreme Court of Virginia v.

Consumers Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (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, 104 S.Ct. 2820, 2824, 81 L.Ed.2d 758 (1984)). But, the immunity "extends 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



   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.
   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.).
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, 92 S.Ct. 2531, 2539, 33 L.Ed.2d 507

(1972)). "[V]oting, debate and reacting to public opinion are manifestly in furtherance of 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.

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

with those decisions.       The budgetary decisions made by defendants for funding the



   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.
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.
