In Ex parte State of Alabama, Ms. 1061553 (Dec. 7, 2007), the Alabama Supreme Court held that even a delay of five years in raising state immunity cannot waive the right to assert that defense.
Five years after suit was filed, the State filed a motion to dismiss based on State immunity in a case involving inverse condemnation. The Supreme Court held that a delay in asserting State immunity cannot constitute a waiver, as State immunity goes to subject matter jurisdiction, and issues of subject matter jurisdiction cannot be waived.
The Supreme Court noted that while the State was immune fromn suit, a suit against state officials would not be barred in this context because of an exception to State immunity for inverse condemnation cases. However, suit was only brought against the State, and not the state officials, so the suit was barred.