[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 10-14282

 

D. C. Docket No. 2:10-cv-01850-WMA

NATALIE VERSIGLIO,

Plaintiff-Appellee,

versus

BOARD OF DENTAL EXAMINERS OF ALABAMA,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Alabama

 

(July 13, 2012)

ON PETITION FOR REHEARING

Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.

DUBINA, Chief Judge:

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There is presently pending in this case a petition for rehearing filed by the

Appellant Board of Dental Examiners of Alabama (the “Board”). We grant the

Board’s petition for rehearing, vacate our prior panel opinion in this case, issued

on August 26, 2011, and published at 651 F.3d 1272, and substitute the following

opinion in lieu thereof. After a recent decision by the Alabama Supreme Court,

we now reverse the district court’s judgment finding that the Board does not

constitute an arm of the State of Alabama and is therefore not entitled to sovereign

immunity from suits. 

In the present case, the Board appeals the district court’s judgment denying

it sovereign immunity protection as an arm of the State of Alabama. Appellee

Natalie Versiglio contends that the Board is sufficiently independent from the

State of Alabama that it is not entitled to Eleventh Amendment immunity and that

her claim under the Fair Labor Standards Act should be allowed to continue. 

Thus, the question before this court is whether the Board is an arm of the state and

protected from suit by sovereign immunity. Based on a recent decision by the

Alabama Supreme Court, Wilkinson v. Bd. of Dental Exam’rs of Ala., __ So. 3d.

2

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__, 2012 WL 1890677, 2012 Ala. LEXIS 69 (Ala. May 25, 2012), we conclude

that it is and we reverse the judgment of the district court. 

1

I.

In Manders v. Lee, the Eleventh Circuit noted that “[i]t is also well-settled

that Eleventh Amendment immunity bars suits brought in federal court when the

State itself is sued and when an ‘arm of the State’ is sued.” 338 F.3d 1304, 1308

(11th Cir. 2003). Whether an agency qualifies as an arm of the state is a federal

question with a federal standard, but whether that standard is met will be

determined by carefully reviewing how the agency is defined by state law. 

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n.5, 117 S. Ct. 900, 904 n.5

(1997) (“Ultimately, of course, the question whether a particular state agency has

the same kind of independent status as a county or is instead an arm of the State,

and therefore ‘one of the United States’ within the meaning of the Eleventh

Amendment, is a question of federal law. But that federal question can be

answered only after considering the provisions of state law that define the

agency’s character.”); Tuveson v. Fla. Governor’s Council on Indian Affairs, Inc.,

734 F.2d 730, 732 (11th Cir. 1984) (“The state law provides assistance in

“The grant or denial of a state’s sovereign immunity defense is an issue of law subject to 1

de novo review by this court.” Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d

1288, 1290 (11th Cir. 2003) (per curiam).

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ascertaining whether the state intended to create an entity comparable to a county

or municipality or one designed to take advantage of the state’s Eleventh

Amendment immunity.”). States have “extremely wide latitude in determining

their forms of government and how state functions are performed.” Abusaid v.

Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1303 (11th Cir. 2005). 

But if a state creates an institution in such a way that gives it independence,

“[w]hatever may have been the state’s reason for doing it [that] way, it must live

with the consequences. It cannot claim an immunity based on a condition which it

itself sought to avoid.” Williams v. Eastside Mental Health Ctr, Inc., 669 F.2d

671, 678 (11th Cir. 1982). In conducting our analysis, this court “has stated the

most important factor is how the entity has been treated by the state courts.” 

Tuveson, 734 F.2d at 732 (citing Huber, Hunt & Nichols, Inc. v. Architectural

Stone Co., 625 F.2d 22, 25 (5th Cir.1980) ). 2

II.

When this court heard oral argument, the highest court in the State of

Alabama to analyze the issue of whether the Board constitutes an arm of the state

was the Court of Civil Appeals of Alabama, which found that the Board was not

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the 2

Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to

October 1, 1981.

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an arm of the state and not entitled to immunity from suit in Alabama state courts. 

See Wilkinson v. Bd. of Dental Exam’rs of Ala., __ So. 3d __, 2011 WL 1205669,

at *5, 2011 Ala. Civ. App. LEXIS 88, at *16 (Ala. Civ. App. Apr. 1, 2011), rev’d

Wilkinson, __ So. 3d. __, 2012 WL 1890677, 2012 Ala. LEXIS 69. Based on this

decision, we similarly held that the Board was not an arm of the state and was not

entitled to immunity from suit in federal courts. See Versiglio v. Bd. of Dental

Exam’rs of Ala., 651 F.3d 1272 (11th Cir. 2011). However, once this court

became aware of the Alabama Supreme Court’s decision to grant the Board’s

petition for a writ of certiorari, we withheld issuance of our mandate that could

have resulted in the incongruous result of having a “state agency” that is immune

from suit under state law but not federal law. Cf. Alden v. Maine, 527 U.S. 706,

793 n.29, 119 S. Ct. 2240, 2285 n.29 (noting in a different context that the

Framers of the Eleventh Amendment “would have considered it absurd that States

immune in federal court could be subjected to suit in their own courts”). 

III.

On May 25, 2012, the Alabama Supreme Court issued a decision holding

that the Board is in fact an arm of the state and is entitled to immunity from suits

in Alabama state courts. Wilkinson, __ So. 3d. __, 2012 WL 1890677, 2012 Ala.

5

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LEXIS 69. In so holding, the Alabama Supreme Court conclusively held “that the

3

Board is ‘an arm of the state’ rather than a mere ‘franchisee licensed for some

beneficial purpose.’ . . . Therefore, the Board . . . is entitled to immunity.” Id. at

__, 2012 WL 1890677 at *17, 2012, Ala. LEXIS 69 at *47–48. 

This court gives great deference to how state courts characterize the entity

in question. This practice is in keeping with the ordinary deference granted state

courts when they interpret matters of state concern. See Silverberg v. Paine,

Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983) (“A federal

court applying state law is bound to adhere to decisions of the state’s intermediate

appellate courts absent some persuasive indication that the state’s highest court

would decide the issue otherwise.”). Finding now that the Board is not entitled to

sovereign immunity would require this court to interpret Alabama law in a way

that is diametrically opposed to the findings of the highest state court to consider

the issue. We decline to do so. 

IV.

For the aforementioned reasons, we reverse the district court’s judgment

finding that the Board is not entitled to sovereign immunity protection as an arm

of the State of Alabama.

 We have attached the Alabama Supreme Court’s opinion as an appendix to this opinion. 3

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REVERSED.

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APPENDIX

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2011-2012

_________________________

1100993

_________________________

Ex parte Board of Dental Examiners of Alabama

PETITION FOR WRIT OF CERTIORARI 

TO THE COURT OF CIVIL APPEALS

(In re: Mary Ann Wilkinson

v.

Board of Dental Examiners of Alabama)

(Jefferson Circuit Court, CV-10-902491;

Court of Civil Appeals, 2100175)

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WISE, Justice.

We granted the petition for a writ of certiorari filed by the Board of Dental

Examiners of Alabama ("the Board") seeking review of the decision of the Court of

Civil Appeals in Wilkinson v. Board of Dental Examiners of Alabama, [Ms. 2100175,

April 1, 2011] ___ So. 3d ___ (Ala. Civ. App. 2011), in which the Court of Civil

Appeals held that the Board was not a State agency and thus was not entitled to

immunity pursuant to Art. I, § 14, Ala. Const. 1901. For the reasons set forth below,

we reverse the judgment of the Court of Civil Appeals. 

I. Facts and Procedural History

The pertinent facts are stated in the Court of Civil Appeals' opinion in

Wilkinson:

"Mary Ann Wilkinson was employed by the Board of Dental

Examiners of Alabama ('the Board') for several years, until the Board

terminated her employment in December 2009. During her tenure with

the Board, Wilkinson was employed pursuant to yearly contracts. 

Wilkinson's employment contracts provided that the 'sole remedy for the

settlement of any and all disputes arising under the terms of this

agreement shall be limited to the filing of a claim with the Board of

Adjustment for the State of Alabama.'

"In July 2010, Wilkinson sued the Board, seeking compensation

she alleged was due her pursuant to her employment contracts. 

Wilkinson based her breach-of-contract claim on an audit of the Board

covering the period between October 2003 and September 2007

conducted by the Department of Examiners of Public Accounts of

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Alabama, which was completed in February 2009. Wilkinson alleged

that the audit had revealed that the Board had not paid Wilkinson for her

attendance at Board meetings between October 2004 and September

2007 and that the Board had overpaid Wilkinson other compensation. 

According to Wilkinson's complaint, the audit determined that the Board

had underpaid Wilkinson $31,950 and had overpaid Wilkinson

$21,787.92. Thus, Wilkinson contended in her complaint that the Board

owed her $10,162.08. She also requested a further audit and

compensation for her attendance at Board meetings between October

2007 and December 2009.

"The Board filed a motion to dismiss Wilkinson's complaint, in

which it alleged that the complaintshould be dismissed pursuant to Rule

12(b)(1), Ala. R. Civ. P., on the ground that the trial court lacked

subject-matter jurisdiction because the Board, as a State agency, is

immune from suit under Ala. Const. 1901, Art. I, § 14; that the

complaint should be dismissed pursuant to Rule 12(b)(6), Ala. R. Civ.

P., because it failed to state a claim; and that the complaint should be

dismissed pursuant toRule 12(b)(3), Ala. R. Civ. P., for improper venue. 

The motion to dismiss contained legal argument concerning only the

immunity issue and whether the employment contracts, which provided

that Wilkinson's sole remedy would lie with the Board of Adjustment,

barred her complaint in the circuit court. Wilkinson responded to the

Board's motion to dismiss with a detailed brief, arguing that the Board 1

did not qualify for immunity under § 14 and that, therefore, her claim

could not be heard by the Board of Adjustment. See Ala. Code 1975, §

41-9-62(b) (stating that the Board of Adjustment has no jurisdiction 'to

settle or adjust any matter or claim of which the courts of this state have

or had jurisdiction'); see also Lee v. Cunningham, 234 Ala. 639, 641,

176 So. 477, 479 (1937); and Vaughan v. Sibley, 709 So. 2d 482, 486

(Ala. Civ. App. 1997) ('The Board of Adjustment has jurisdiction over

claims against the state that are not justiciable in the courts because of

the state's constitutional immunity from being made a defendant.').

After the Board replied to Wilkinson's response and after a hearing, the

trial court dismissed Wilkinson's complaint, finding in its order that the

Board was a State agency because 'the funds raised by the Board are

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appropriated by the State to the Board for use as provided by statute.' 

Wilkinson timely appealed to this court.

"__________________

" Wilkinson also attached to her response documentary evidence 1

indicating that the Board was self-supporting. However, that evidence

did not convert the Board's motion to dismiss into a motion for a

summary judgment because the motion was, by and large, a motion

seeking dismissal pursuant to Rule 12(b)(1) and attacking the trial

court'ssubject-matter jurisdiction based on the Board's assertion of § 14

immunity. See Williams v. Skysite Commc'ns Corp., 781 So. 2d 241,

245 (Ala. Civ. App. 2000) ('Evidentiarymatters may be freely submitted

on a motion to dismiss that attacks jurisdiction.'). None of the

arguments made by the Board was an argument that the complaint failed

to state a claim."

___ So. 3d at ___. 

Wilkinson's appeal to the Court of Civil Appeals challenged the Board's

entitlement to immunity under § 14. In addressing that issue, the Court of Civil

Appeals stated:

"'Section 14 of the Alabama Constitution provides

"that the State of Alabama shall never be made a defendant

in any court of law or equity." This court has held that the

use of the word "State" in Section 14 was intended to

protect fromsuit only immediate and strictly governmental

agencies of the State. Ex parte Board of School

Commissioners of Mobile County, 230 Ala. 304, 161 So.

108 (1935).'

"Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 480 (Ala.

1983). Wilkinson argues that the Board is not an 'immediate and strictly

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governmental agenc[y] of the State,' and, therefore, that it is not entitled

to § 14 immunity. 

"The Board relies on Delavan v. Board of Dental Examiners of

Alabama, 620 So. 2d 13, 18 (Ala. Civ. App. 1992), and Vining v. Board

of Dental Examiners of Alabama, 492 So. 2d 607, 610 (Ala. Civ. App.

1985). In both cases, this court described the Board as a State agency. 

In neither case was the immunity of the Board an issue, and in neither

case, as Wilkinson aptly points out, did this court undertake an analysis

of the factors relevant to a determination whether the Board is an

'agency' entitled to § 14 immunity. Thus, we agree with Wilkinson that

our inquiry cannot end with Delavan and Vining."

After discussing this Court's decisions in ArmoryCommission of Alabama v. Staudt,

388 So. 2d 991, 993 (Ala. 1980); White v. Alabama Insane Hospital, 138 Ala. 479,

482, 35 So. 454, 454 (1903); Ex parte Greater Mobile-Washington County Mental

Health-Mental Retardation Board, Inc., 940 So. 2d 990, 1004 (Ala. 2006) ("MHMRB"), the Court of Civil Appeals stated:

"Based on the above-quoted language from White, and the

outcome in Staudt, the Board argues that it, like other agencies created

for purposes benefiting the public interest, is immune under § 14 by

virtue of its creation by the legislature. The Board, however,

misunderstands the test enunciated in Staudt and followed since, which

focuses on much more than whether the alleged 'agency' was created by

the legislature for some purpose of benefit to the public. 

"To be sure, the functions and purpose of an entity seeking

immunity is an important factor under the Staudt test; however, our

supreme court has explained that the main, but not sole, focus of the

immunity determination must be whether the liability ofthe entity would

result in liability for the State and thus potentially impact the State

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treasury. Ex parte Greater Mobile-Washington County Mental HealthMental Retardation Bd., Inc., 940 So. 2d 990, 1004 (Ala. 2006) ('MHMRB'). As explained in MH-MRB, in most every case decided after

Staudt, the 'treasury factor' has been, if not the determinative factor, one

of the determinative factors in deciding whether an entity was a State

agency entitled to § 14 immunity. MH-MRB, 940 So. 2d at 1004. 

Immunity is designed to shield the State treasury, not to afford immunity

to each and every entity created by statute, even if the purpose of the

entity is to protect the public welfare.

"Based on Staudt and as explained in MH-MRB, we must

examine the 'complete relationship between the State and the Board,'

MH-MRB, 940 So. 2d at 1005, and we begin by first noting that, despite

the trial court's finding that 'the funds raised by the Board are

appropriated by the State to the Board,' it does not appear that the Board

receives any State funds at all. One of the statutes creating the Board

does contain language indicating that all money collected by the Board

is 'appropriated' to the Board. Ala. Code 1975, § 34-9-41. However,

thatsame statute further provides that the money collected by the Board

for fees and other receipts is paid to the secretary-treasurer of the Board

and is deposited in a bank selected by the members of the Board. Id. 

The money collected by the Board is never placed in the State treasury. 

Cf. Ala. Code 1975, § 34-43-14 (establishing a special revenue fund in

the State treasury for the Alabama Board of Massage Therapy Fund). 

The Board, from all that appears in the record, is fully self-supporting,

and no actual appropriation of funds to the Board from the State appears

to be required in order for it to perform its functions. Thus, the State

does not '"suppl[y] the means" by which [the Board is] maintained and

operated.' MH-MRB, 940 So. 2d at 1004 (quoting White, 138 Ala. at

482, 35 So. at 454).

"Another factor that the courts have found relevant to the

immunity issue is whether the statute creating the entity specifically

characterizesthe entity as an agency of the State. MH-MRB, 940 So. 2d

at 1005. The statutes creating the Board do not. Likewise, we must

look to the authority and power granted the Board and the level of State

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oversight of the Board and its functions. Id. at 1003. Nothing in the

pertinent statutes or the record indicates that the State oversees the

functions of the Board, which include, among other things,

administering examinations to those seeking a license to practice

dentistry or dental hygiene and investigating violations of laws or

regulations governing the practice of dentistry and dental hygiene. Ala.

Code 1975, §§ 34-9-43 & -43.1. The Board does not appear to have any

power to own or sell property in its own name, a factor that has been

considered relevant in other cases. See, e.g., Rodgers v. Hopper, 768

So. 2d 963, 967 (Ala. 2000); Tallaseehatchie Creek Watershed

Conservancy Dist. v. Allred, 620 So. 2d 628, 630 (Ala. 1993). The

Board can enter into certain contracts, including employment contracts

relating to administrative and investigative services and contracts for

legal services, a power that has been considered as indicium that the

alleged agency is actually a separate entity. Rodgers, 768 So. 2d at 967;

Allred, 620 So. 2d at 630. 

"Contracts for legal services, however, must be approved by the

attorney general, a fact that indicates incidental control over that aspect

of the Board's powers. Ala. Code 1975, § 34-9-43(8)b. Additionally,

the Board's accounts must be audited by a certified public accountant of

the State, and reports of the money received and disbursed and of the

activities of the Board together with the audit must be filed with the

State Finance Department. Ala. Code 1975, § 34-9-42. The level of

oversight over the Board by the State would appear to be minimal,

which, according to the MH-MRB court, is not indicative of Stateagency status. MH-MRB, 940 So. 2d at 1004.

"Based on our consideration of the relevant factors under Staudt

as applied in detail by our supreme court in MH-MRB, we conclude that

the Board does not qualify as an 'immediate and strictly governmental

agenc[y] of the State' and, therefore, that it is not entitled to § 14

immunity. Thomas[ v. Alabama Mun. Elec. Auth.], 432 So. 2d [470] at

480 [(Ala. 1983)]. Based on that conclusion, we must also agree with

Wilkinson that, despite the language contained in her employment

contracts, the Board of Adjustment is not the appropriate forum for her

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claims against the Board, because the Board of Adjustment provides a

forum for addressing those claims otherwise barred by § 14 immunity

and has absolutely no jurisdiction over claims or actions that may be

brought in the courts of this State. § 41-9-62(b); see also Lee[ v.

Cunningham], 234 Ala. [639] at 641, 176 So. [477] at 479 [(1937)]; and

Vaughan[ v. Sibley], 709 So. 2d [482] at 486 [(Ala. Civ. App. 1997)]."

___ So. 3d at ___ (footnote omitted).

In its petition for a writ of certiorari, the Board argues that this case presents

an issue of first impression regarding whether the Board is a State agency that is

entitled to § 14 immunity and whether the Board was entitled to invoke the

jurisdiction of the Board of Adjustment. 

II. Standard of Review

"In reviewing a decision of the Court of Civil Appeals on a

petition for a writ of certiorari, this Court 'accords no presumption of

correctness to the legal conclusions of the intermediate appellate court.

Therefore, we must apply de novo the standard of review that was

applicable in the Court of Civil Appeals.' Ex parte Toyota Motor Corp.,

684 So. 2d 132, 135 (Ala. 1996)."

Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).

The Court of Civil Appeals stated the following regarding the standard of review

applicable in that court:

"'In Newman v. Savas, 878 So. 2d 1147[, 1148-49]

(Ala. 2003), this Court set out the standard of review of a

ruling on a motion to dismiss for lack of subject-matter

jurisdiction:

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"'"A ruling on a motion to dismiss is

reviewed without a presumption of

correctness. Nance v. Matthews, 622 So. 2d

297, 299 (Ala. 1993). This Court must accept

the allegations of the complaint as true.

Creola Land Dev., Inc. v. Bentbrooke

Housing, L.L.C., 828 So. 2d 285, 288 (Ala.

2002). Furthermore, in reviewing a ruling on

a motion to dismiss we will not consider

whether the pleader will ultimately prevail but

whether the pleader may possibly prevail.

Nance, 622 So. 2d at 299."'

"Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 563 (Ala.

2005)."

Wilkinson, ___ So. 3d at ___.

III. Discussion

A.

The Board argues that the Court of Civil Appeals erred when it concluded that

the Board was not a State agency that is entitled to § 14 immunity. In Staudt, 388 So.

2d at 993, this Court stated:

"Whether a lawsuit against a body created by legislative enactment is a

suit against the state depends on [1] the character of power delegated to

the body, [2] the relation of the body to the state, and [3] the nature of

the function performed by the body. All factors in the relationship must

be examined to determine whether the suit is against an arm of the state

or merely against a franchisee licensed for some beneficial purpose. 

State Docks Commission v. Barnes, 225 Ala. 403, 406-07, 143 So. 581,

584 (1932)."

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1. Character of Power Delegated to the Body

In determining whether the Board is a State agency that is entitled to § 14

immunity, we must first look at the character of power delegated to the Board. In

Smeller v. Oregon State Board of Dental Examiners, 294 U.S. 608, 611 (1935), the

United States Supreme Court stated:

"That the state may regulate the practice of dentistry, prescribing the

qualificationsthat are reasonably necessary, and to that end may require

licenses and establish supervision by an administrative board, is not

open to dispute. Douglas v. Noble, 261 U.S. 165 [(1923)]; Graves v.

State of Minnesota, 272 U.S. 425, 427 [(1926)]. The state may thus

afford protection against ignorance, incapacity and imposition. Dent v.

West Virginia, 129 U.S. 114, 122 [(1889)]; Graves v. State of

Minnesota, supra. We have held that the state may deny to corporations

the right to practice, insisting upon the personal obligations of

individuals (State Board of Dental Examiners v. Miller, 90 Colo. 193,

8 P. (2d) 699 [(1932)]; Miller v. State Board of Dental Examiners, 287

U.S. 563 [(1932)]), and that it may prohibit advertising that tends to

mislead the public in thisrespect. Dr. Bloom Dentist, Inc. v. Cruise, 259

N.Y. 358, 363, 182 N.E. 16 [(1932)]; Id., 288 U.S. 588 [(1933)]."

Section 34-9-2, Ala. Code 1975, provides:4

"(a) The Legislature hereby declares that the practice of dentistry

and the practice of dental hygiene affect the public health, safety, and

welfare and should be subject to regulation. It is further declared to be

a matter of public interest and concern that the dental profession merit

and receive the confidence of the public and that only qualified dentists

Many of the sections in Chapter 9 of Title 34, "Dentists and Dental Hygienists," were 4

amended effective September 1, 2011. Unless otherwise indicated, we have quoted from the

amended version when the Code section was amended.

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be permitted to practice dentistry and only qualified dental hygienists be

permitted to practice dental hygiene in the State of Alabama. All

provisions of this chapter relating to the practice of dentistry and dental

hygiene shall be liberally construed to carry out these objects and

purposes.

"(b) The Legislature also finds and declares that, because of

technological advances and changing practice patterns, the practice of

dentistry and the practice of dental hygiene is occurring with increasing

frequency across state lines and that the technological advances in the

practice of dentistry and in the practice of dental hygiene are in the

public interest.

"(c) The Legislature further finds and declaresthat the practice of

dentistry and the practice of dental hygiene are each a privilege. The

licensure by this state of nonresident dentists who engage in dental

practice and persons who engage in the practice of dental hygiene within

this state are within the public interest. The ability to discipline the

nonresident dentists and dental hygienists who engage in dental practice

in this state is necessary for the protection of the citizens of this state

and for the public interest, health, welfare, and safety."

Chapter 9 of Title 34, Ala. Code 1975, provides detailed requirements and regulations

regarding the practice of dentistry and dental hygiene in the State. Section 34-9-

40(a), Ala. Code 1975, provides, in pertinent part: "In order to accomplish the

purposes and to provide for the enforcement of this chapter, there is hereby created

the Board of Dental Examiners of Alabama. The board is hereby vested with the

authority to carry out the purposes and enforce the provisions of this chapter." 

Additionally, § 34-9-43, Ala. Code 1975, provides:

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"(a) The board shall exercise,subject to this chapter, the following

powers and duties:

"(1) Adopt rules for its government as deemed

necessary and proper. 

"(2) Prescribe rules for qualification and licensing of

dentists and dental hygienists. 

"(3) Conduct or participate in examinations to

ascertain the qualification and fitness of applicants for

licenses as dentists and dental hygienists. 

"(4)Make rules and regulationsregarding sanitation. 

"(5) Formulate rules and regulations by which dental

schools and colleges are approved, and formulate rules and

regulations by which training, educational, technical,

vocational, or any other institution which provides

instruction for dental assistants, dental laboratory

technicians, or any other paradental personnel are

approved. 

"(6) Grant licenses, issue license certificates,

teaching permits, and annual registration certificates in

conformity with this chapter to such qualified dentists and

dental hygienists. 

"(7) Conduct hearings or proceedings to impose the

penalties specified in Section 34-9-18. 

"(8)a. Employ necessary persons to assist in

performing its duties in the administration and

enforcement of this chapter, and to provide

offices, furniture, fixtures, supplies, printing,

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or secretarial service to these persons and

expend necessary funds. 

"b. Employ an attorney or attorneys,

subject to the approval of the Attorney

General, to advise and assist in the carrying

out and enforcing of the provisions of this

chapter. Provided, however, if the board

contracts with an outside attorney to be

general counsel to the board, that attorney or

any member of a law firm with which he or

she is associated shall not function as the

board's prosecutor at disciplinary hearings. 

"(9)a. Investigate alleged violations of this

chapter and institute or have instituted before

the board or the proper court appropriate

proceedings regarding the violation. 

"b. Authorize and employ investigators who

comply with the Peace Officers' Minimum

Standards and Training Act to exercise the

powers of a peace officer in investigating

alleged violations of the drug or controlled

substances laws by persons licensed pursuant

to this chapter, including the powers of arrest

and inspection of documents. 

"(10) Adopt rules and regulations to implement this

chapter. 

"(11) Publish, on a quarterly basis, all minutes,

except minutes of executive sessions, financial reports,

schedules of meetings, including anticipated executive

sessions, and other pertinent information on the board's

website no later than 90 days following the date of

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occurrence. In addition, publish or post annually the rules

and regulations promulgated by the board, a copy of the

Dental Practice Act, and a list of all persons licensed to

practice under this chapter. 

"(12) Attend meetings, seminars, workshops, or

events that may improve the function and efficiency of the

board or improve the ability of the board to enforce and

administer this chapter. 

"(b) The board, in exercising its powers and duties, shall adhere

to guidelines and proceedings of the State Ethics Commission as

provided in Chapter 25 of Title 36. The board may adopt rules for the

purpose of establishing additional ethical guidelines."5

Also, § 34-9-46, Ala. Code 1975, gives the Board "the power to issue subpoenas and

compel the attendance of witnesses and the production of all necessary papers, books,

and records, documentary evidence and material or other evidence." Further, any

member of the Board has the authority to issue oaths to witnesses or to take witnesses'

affirmations. Additionally, § 34-9-18(a), Ala. Code 1975, sets forth conduct that

constitutes grounds for disciplinary action against a dentist or dental hygienist. 

Section 34-9-18(b) provides:

"(b) When the board finds any dentist or dental hygienist guilty

of any of the grounds set forth in subsection (a), it may enter an order

imposing one or more of the following penalties:

Subsection (b) was added by the amendment to § 34-9-43, Ala. Code 1975, effective 5

September 1, 2011.

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"(1) Refuse to issue the dentist or dental hygienist

license or permit provided for in this chapter. 

"(2) With the exception of negligence as defined in

paragraph (a)(6)a. revoke the license or permit of any

dentist or dental hygienist. 

"(3) Suspend the license or permit of any dentist or

dental hygienist. 

"(4) Enter a censure. 

"(5) Issue an order fixing a period and terms of

probation best adapted to protect the public health and

safety and to rehabilitate the dentist or dental hygienist. 

"(6) Impose an administrative fine not to exceed five

thousand dollars ($5,000) for each count or separate

offense. 

"(7) Impose restrictions on the scope of practice. 

"(8) Impose peer review or professional education

requirements. 

"(9) Assess the costs of the disciplinary

proceedings."

Finally, § 34-9-5, Ala. Code 1975, provides:

"Any person who shall engage in the practice of dentistry across

state lines or practice dentistry or dental hygiene in this state within the

meaning of this chapter without having first obtained from the board a

license and an annual registration certificate, when the certificate is

required by this chapter, or who violates this chapter, or who willfully

violates any published rule or regulation of the board, or who does any

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act described in this chapter as unlawful, the penalty for which is not

herein specifically provided, shall be guilty of a misdemeanor and upon

conviction shall be punished by a fine of not more than five thousand

dollars ($5,000) for each offense, to be fixed by the court trying the

case, and in addition thereto may be, in the discretion of the court,

sentenced to hard labor for the county for a period not to exceed 12

months."

(Emphasis added.)

The purposes of Chapter 9, Title 34, Ala. Code 1975, and the character of the

power and duties that are delegated to the Board support a finding that the Board is

a State agency that is entitled to § 14 immunity.

2. Relation of the Body to the State

Next, this Court must look at the relation of the Board to the State. In reaching

its decision in Wilkinson, the Court of Civil Appeals relied heavily on this Court's

decision in MH-MRB, stating:

"As explained in MH-MRB, in most every case decided after [Armory

Commission of Alabama v.] Staudt[, 388 So. 2d 991 (Ala. 1980)], the

'treasury factor' has been, if not the determinative factor, one of the

determinative factors in deciding whether an entity was a State agency

entitled to § 14 immunity. MH-MRB, 940 So. 2d at 1004. Immunity is

designed to shield the State treasury, not to afford immunity to each and

every entity created by statute, even if the purpose of the entity is to

protect the public welfare."

___ So. 3d at ___. The Court of Civil Appeals then reasoned:

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"Based on Staudt and as explained in MH-MRB, we must

examine the 'complete relationship between the State and the Board,'

MH-MRB, 940 So. 2d at 1005, and we begin by first noting that, despite

the trial court's finding that 'the funds raised by the Board are

appropriated by the State to the Board,' it does not appear that the Board

receives any State funds at all. One of the statutes creating the Board

does contain language indicating that all money collected by the Board

is 'appropriated' to the Board. Ala. Code 1975, § 34-9-41. However,

that same statute further provides that the money collected by the Board

for fees and other receipts is paid to the secretary-treasurer of the Board

and is deposited in a bank selected by the members of the Board. Id. 

The money collected by the Board is never placed in the State treasury. 

Cf. Ala. Code 1975, § 34-43-14 (establishing a special revenue fund in

the State treasury for the Alabama Board of Massage Therapy Fund). 

The Board, from all that appears in the record, is fully self-supporting,

and no actual appropriation of funds to the Board from the State appears

to be required in order for it to perform its functions. Thus, the State

does not '"suppl[y] the means" by which [the Board is] maintained and

operated.' MH-MRB, 940 So. 2d at 1004 (quoting White[ v. Alabama

Insane Hosp.], 138 Ala. [479] at 482, 35 So. [454] at 454 [1903)])."

___ So. 3d at ___. 

However, in Ex parte Troy University, 961 So. 2d 105, 109-10 (Ala. 2006), this

Court noted that, although significant, whether an entity receivesfunds fromthe State

is not the determinative factor:

"The receipt of funds from the State is a significant factor in

deciding whether an entity is a State agency. Likewise, the fact that a

judgment 'would result in a monetary lossto the State treasury,' Ex parte

Alabama Dep't of Mental Health & Mental Retardation, 937 So. 2d

1018, 1023 (Ala. 2006), is significant, if not determinative, in the

decision. However, neither factor is the sole basis for our extension of

§ 14 to State agencies. See, e.g., Ex parte Greater Mobile–Washington

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County Mental Health–Mental Retardation Bd., Inc., 940 So. 2d 990,

993 (Ala. 2006); Tallaseehatchie Creek Watershed Conservancy Dist.

v. Allred, 620 So. 2d 628, 630 (Ala. 1993); ArmoryComm'n of Alabama

v. Staudt, 388 So. 2d 991, 992–93 (Ala. 1980); White v. Alabama Insane

Hosp., 138 Ala. 479, 482, 35 So. 454, 454 (Ala. 1903). This Court

considers several factors in determining whether an entity is 'an

immediate and strictly governmental agenc[y]' and thus entitled to

protection from suit under § 14, including factors related to '(1) the

character of the power delegated to the body; (2) the relation of the body

to the State; and (3) the nature of the function performed by the body.' 

Rodgers v. Hopper, 768 So. 2d 963, 966 (Ala. 2000)(citing Staudt, 388

So. 2d at 993)."

(Emphasis added.) 

Additionally, the Court of Civil Appeals applies an overly narrow definition

of "State funds" that appears to misapprehend the true nature of the funds collected

and retained by the Board. Section 34-9-16, Ala. Code 1975, provides, in pertinent

part:

"The Board shall establish and collect reasonable fees provided

for in this chapter within the ranges set forth below and without having

to engage in the rulemaking process ...."

(Emphasis added.) That section also includes a detailed list of fees, such as "Dental

Examination Application Fee," Dental Examination Fee," and "Dental Examination

Materials Fee." It then sets forth a maximum amount that may be charged for each

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listed fee. Therefore, the legislature requires the Board to establish and collect fees. 

6

Additionally, although the legislature has given the Board some discretion in

establishing the amount of fees it will collect, it also limits that discretion by

providing the maximum fees that can be established and collected. 

Section 34-9-41, Ala. Code 1975, provides:

"The board shall annually elect from its membership a president,

vice-president, and secretary-treasurer and may employ staff members

who are not members of the board. The board shall have a common

seal. The board shall hold an annual meeting in Birmingham at the

University of Alabama School of Dentistry assoon as practical after the

graduation exercises of the dental school for the purpose of examining

or participating in the regional examination of applicants for a license

to practice dentistry and dental hygiene or atsuch other times and places

as the board may designate for the purpose of transacting its business

and examinations. A majority of the board shall constitute a quorum for

the transaction of business at any meeting except that in conducting

hearings involving any of the penalties outlined in Section 34-9-18, no

less than five members of the board shall be present. In conducting

hearings involving any of the penalties outlined in Section 34-9-18, a

majority of the board may appoint any former member of the board who

for such purposes shall have all the powers and privileges ofsuch office

as a regular board member possesses. In conducting or participating in

exams, a majority of the board may appoint any former member of the

board or such other licensed practicing dentists from a jurisdiction

recognized by the board who for such purposesshall have all the powers

and privileges of such office as a regular board member possesses. Out

of the funds of the board the members thereof shall receive as

Before its amendment effective September 1, 2011, § 34-9-16 also set a minimum 6

amount that could be charged for each fee.

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compensation a sum to be fixed by the board for each day actively

engaged in the duties of their office, and in addition board members

shall receive the same per diem and travel allowance as is paid by law

to state employees for each day actively engaged in the duties of their

office. The secretary-treasurer shall receive such compensation as may

be fixed by the board, which shall be in addition to his or her per diem

and expenses, provided no per diem or expensesshall be allowed unless

his or her duties require his or her absence from his or her office. The

secretary[-treasurer] shall receive such compensation as may be fixed by

the board. The secretary-treasurer shall be custodian of all property,

money, records and the official seal of the board. All money received

by the board under this chapter shall be paid to and received by the

secretary-treasurer of the board. The secretary-treasurer shall deposit to

the credit of the board all funds paid to the board in a bank selected by

its members. The board is authorized to expend such funds as shall be

necessary to enforce the provisions of this chapter; to pay salaries,

expenses and other costs herein provided; to promote the arts and

science of dentistry; and for such other purposes as the board shall

consider to be in the best interest of dentistry in this state. All the costs

herein provided for shall be paid by checks drawn by the

secretary-treasurer and countersigned by the president of the board;

except the board may authorize the administrative secretary or the

executive director to sign checks for costs that do not exceed a monetary

limit to be set by the board in its rules. Should the property be other

than money, the secretary-treasurer shall provide for the safekeeping

thereof for the use of the board. All money, including license fees,

annual renewal license certificate fees, examination fees and any and all

other fees and receipts under the provisions of this chapter, are hereby

appropriated to the Board of Dental Examiners to be used as herein

provided."

(Emphasis added.) In this section, the legislature specifically states that the fees and

receipts collected under Chapter 9, Title 34, Ala. Code 1975, are appropriated to the

Board. The reasoning of the Court of Civil Appeals regarding these amounts appears

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to be that, because the money collected by the Board is deposited into a bank account

rather than into a special fund in the State treasury, such money does not constitute

State funds; therefore, the Court of Civil Appeals reasoned, the Board does not

receive any State funds. In Opinion of the Justices No. 385, 69 So. 3d 847 (Ala.

2011), this Court addressed the constitutionality of Senate Bill 373, which would

have allowed certain approved entities to retain a percentage of state income taxes

withheld from the pay of eligible employees. In addressing this issue, this Court

stated:

"With regard to the disposition of the proceeds from state income

taxes, § 211.02[, Ala. Const. 1901,] provides:

"'[A]ll net proceeds of such tax, plus the earnings from

investment of the trust funds, must be used only in the

manner and in the order following: (1) To replace the

revenue lost to the several funds of the state by reason of

the exemption of homesteads fromthe state ad valoremtax. 

All homesteads in Alabama are hereby declared to be

exempt from all state ad valorem tax to the extent of at

least $2,000.00 in assessed value and a sufficient amount

is hereby appropriated from the proceeds of the income tax

in each fiscal year to replace the revenue lost to the several

funds of the state by reason of the homestead exemption

herein declared; (2) The residue shall be placed in the state

treasury to the credit ofthe Alabama special education trust

fund to be used for the payment of public school teachers

salaries only.'

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"(Emphasis added.) Section 211.02 clearly and unequivocally provides

that all net proceeds of the state income tax must be used only for the

two specific purposes designated therein. First, the proceeds must be

used '[t]o replace the revenue lost to the several funds of the state by

reason of the exemption of homesteads from the state ad valorem tax.' 

Second, the 'residue shall be placed in the state treasury to the credit of

the Alabama special education trust fund to be used for the payment of

public school teachers salaries only.' (Emphasis added.)

"S.B. 373 permits certain approved entities to retain a percentage

of state income taxes withheld from the pay of eligible employees. 

However, § 211.02 requires that 'all net proceeds of [the state income]

tax' be used for the specific purposes set forth in § 211.02. Therefore,

for S.B. 373 not to be violative of § 211.02, the percentage withheld by

the approved entities must not constitute 'net proceeds of [the state

income] tax.'

 

"The Constitution of Alabama of 1901 does not define the phrase

'all net proceeds of such tax' as used in § 211.02. Black's Law

Dictionary defines 'net proceeds' as'[g]ross proceeds, less charges which

may be rightly deducted.' Black's Law Dictionary 1041 (6th ed. 1990). 

S.B. 373 allows an approved entity to retain a percentage ofstate income

taxes withheld from eligible employees. If an approved entity collects

state income taxes due from its employees but does not remit those taxes

in their entirety to the State, is it possible that such retained amounts

would constitute 'charges which may be rightly deducted,' rather than

'net proceeds of the tax,' so that the Act would not run afoul of § 211.02?

The answer to that question is 'no.'

"In Opinion of the Justices No. 346, 665 So. 2d 1357, 1358-59

(Ala. 1995), this Court addressed the constitutionality of House Bill 586

in light of § 5(a) of Amendment No. 450 to the Constitution of Alabama

of 1901 (now § 219.02, Ala. Const. 1901 (Off. Recomp.)) and held: 

"'Our response to the first question ofthisResolution

[requesting the opinion] is that the appropriation that

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would be made by Section 11 of House Bill 586 would be

contrary to § 5(a) of Amendment No. 450 of the Alabama

Constitution, 1901. Section 5(a) of Amendment No. 450

states:

"'"The trust capital shall be held in perpetual

trust and shall not be appropriated by the

legislature or expended or disbursed for any

purpose other than to acquire eligible

investmentsin accordance with the provisions

of this amendment.... [But] any trust income

derived therefrom shall be paid directly into

the general fund as it isreceived by the board,

subject to appropriation and withdrawal by

the legislature."

"'(Emphasis added.) In the Amendment, "trust income" is

defined as "the net income received by the state,

subsequent to the transfer of the initial trust capital by the

state treasurer to the board, from the investment and

reinvestment of all assets of the trust fund, determined in

accordance with the provisions of this amendment."

"'Under this Bill, the legislature provides for a

continuing appropriation over a period of 30 years,

beginning in 1995, from the annual interest earned on

investments of the Alabama Trust Fund to the Alabama

Incentives Financing Authority. While the legislature's

broad governmental power is plenary in character, it is not

absolute and is subject to the express restrictions of the

state constitution. Van Hart v. deGraffenried, 388 So. 2d

1196, 1198 (Ala. 1980); see also, e.g., City of Birmingham

v. City of Vestavia Hills, 654 So. 2d 532 (Ala. 1995). 

Amendment No. 450, by express language, requires that

the interest earnings on investments be paid into the state's

General Fund upon receipt. After the trust income has

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been paid into the General Fund, the legislature may

appropriate it as it sees fit, subject to constitutional

restrictions. Article IV, § 71, of the Alabama Constitution,

1901, is one such constitutional restriction on the

legislature's power to appropriate funds. According to §

71:

"'"The general appropriations bill shall

embrace nothing but appropriations for the

ordinary expenses of the executive,

legislative, and judicial departments of the

state, for interest on the public debt, and for

public schools.... All other appropriations

shall be made by separate bills, each

embracing but one subject."

"'(Emphasis added.)

"'The legislature declares in § 11(a) of the Bill that

the appropriation "is made pursuant to and in accordance

with [Amendment No. 450] and that the interest income on

investments in the Alabama Trust Fund is not a part of the

General Fund of the State until deposited in the General

Fund." The Governor, in his brief, argues that the

appropriation of specified, annual installments of income

from the Alabama Trust Fund for 30 years, made by

Section 11 of H.B. 586, does not constitute an

appropriation of money in the state's General Fund because

the money is appropriated before it reaches the state's

General Fund. The simple answer to this contention is: 

The constitution itself states that the income from

investments of the Alabama Trust Fund shall be paid

directly to the state's General Fund. The legislature is

without power to override this express constitutional

provision by the subterfuge of diverting such funds before

they are actually paid into the General Fund. House Bill

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586 is invalid, because it is in direct conflict with the

constitutional provisions of Amendment No. 450. The

constitution has "earmarked" these funds for the General

Fund.

"'The Governorstatesin his brief that, because under

H.B. 586 the legislature would be powerless to control the

interest income earned by the Alabama Trust Fund, a fact

in contrast to its ability to increase a special tax to service

a debt, the scheme authorized by the Bill is not a debt of

the state. He assertsit isthe economic and legal equivalent

of an annual appropriation. We cannot agree. The

inescapable fact is: by constitutional mandate these funds

are required to be paid into the General Fund as received,

and the legislature is bound by the constitution to

appropriate those funds only as permitted by express

provisions of the constitution.

"'The legislature may not avoid constitutional

restrictions on its authority to appropriate state funds by

"diverting" such funds from the General Fund before they

are received by the General Fund.'

"(Emphasis, other than as indicated, added.) In that same opinion, this

Court also stated: 'No constitutional distinction exists between money

the state already has and that which it will receive.' 665 So. 2d at 1362. 

"Based on this Court's reasoning in Opinion of the Justices No.

346, the legislature may not prevent any amounts that are withheld from

employees' paychecks pursuant to state-income-tax laws frombecoming

state-income-tax proceeds to be deposited into the appropriate funds

simply by allowing an approved entity to retain those amounts once

collected, rather than turning them over to the State. As soon as an

employer withholds state income tax from an employee's paycheck, the

amount withheld becomes gross proceeds of the state income tax."

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69 So. 3d at 856-58. The reasoning this Court employed in Opinion of the Justices

No. 385, supra, and Opinion of the Justices No. 346, 665 So. 2d 1357 (Ala. 1995), is

persuasive here.

In this case, once the Board collects the funds established by the legislature,

those funds become State funds. The mere fact that the legislature appropriates those

funds before they reach the State treasury does not alter their status as State funds. 

Also, the fact that the legislature has allowed the Board to deposit those funds in a

bank rather than in the State treasury also does not alter their status as State funds. 

Although the funds appropriated to the Board are not deposited in the State treasury,

but in a bank, the Board does not have unbridled discretion regarding the expenditure

of those funds. Section 34-9-41, Ala. Code 1975, specifically authorizes the

expenditures of such funds for only certain specific purposes. Additionally, § 34-9-

41, Ala. Code 1975, even provides for the manner in which the costs for such

expenditures will be paid and who has the authority to sign checks on behalf of the

Board. Finally, our conclusion that the funds appropriated directly to the Board are

State funds is further buttressed by the provisions of the Alabama Sunset Law, § 41-

20-1 et seq., Ala. Code 1975, which provides for the continuation or termination of

State agencies. The Board of Dental Examiners is one of the agencies enumerated in

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§ 41-20-3(a)(2)q., Ala. Code 1975. Section 41-20-12, Ala. Code 1975, provides that

all unexpended funds of an enumerated agency that has been terminated will revert

"back to the state fund from which its appropriation was made, unless otherwise

provided by law." 

The Court of Civil Appeals incorrectly concluded that "the State does not

'"suppl[y] the means" by which [the Board is] maintained and operated.' MH-MRB,

940 So. 2d at 1004 (quoting White[ v. Alabama Insane Hosp.], 138 Ala. [479] at 482,

35 So. [454] at 454 [(1903)])." ___ So. 3d at ___.

Further, other provisions in Chapter 9, Title 34, Ala. Code 1975, regarding the

relationship between the Board and the State indicate that the Board is a State agency. 

Section 34-9-41, Ala. Code 1975, provides that members of the Board "shall receive

the same per diem and travel allowance as is paid by law to state employees for each

day actively engaged in the duties of their office." Also, § 34-9-42, Ala. Code 1975,

provides, in pertinent part:

"The secretary-treasurer of the board shall compile an annual report

which shall contain an itemized statement of all money received and

disbursed and a summary of the official acts of the board during the

preceding year, and the report shall have attached thereto a certified

report and audit made by a certified public accountant of the State of

Alabama. A copy of the report and audit shall be filed of record in the

office of the Department of Finance of the State of Alabama, and a copy

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shall be retained by the secretary-treasurer to be rendered upon request,

to the dentists at large in the State of Alabama."

(Emphasis added.) Although § 34-9-43(8)b. authorizes the Board to hire an attorney

or attorneys to advise and assist it in carrying out and performing its duties under the

provisions of Chapter 9, Title 34, Ala. Code 1975, that hiring is "subject to the

approval of the Attorney General." Additionally, § 34-9-43.1, Ala. Code 1975,

provides:

"(a) The board may employ investigators, attorneys, agents, and

any other employees and assistants to aid in the administration and

enforcement ofthe duties ofthe board. The board may request assistance

from the Attorney General, district attorneys, or other prosecuting

attorneys of this state in the various circuits and counties. All

prosecuting attorneys throughout the state shall assist the board, upon

request of either, in any action for injunction or any prosecution without

charge or additional compensation."

(Emphasis added.) Section 34-9-45, Ala. Code 1975, provides:

"The board and its members and officers shall assist prosecuting

officers in the enforcement of this chapter, and it shall be the duty of the

board, its members and officers to furnish the proper prosecuting

officers with such evidence as it or they may ascertain to assist them in

the prosecution of any violation of this chapter, and the board is

authorized for such purposesto make such reasonable expendituresfrom

the funds of the board as it may deem necessary to ascertain and furnish

such evidence."

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All these various provisions of Chapter 9, Title 34, Ala. Code 1975, show that the

relationship between the Board and the State supports the conclusion that the Board

is a State agency that is entitled to § 14 immunity.

3. Nature of the Function Performed by the Board

 Finally, the nature of the function performed by the Board also supports a

finding that the Board is entitled to State immunity. In addition to examining and

licensing those who wish to engage in the practice of dentistry or dental hygiene in

the State, the Board also promulgates rules and regulations governing the practice of

dentistry and the practice of dental hygiene; investigates violations ofChapter 9, Title

34, Ala. Code 1975; institutes proceedings or has proceedings instituted before it

regarding violations ofChapter 9, Title 34; and takes disciplinary action against those

found guilty of conduct set forth in § 34-9-18(a), Ala. Code 1975. Additionally, § 34-

9-5, Ala. Code 1975, provides that willful violations of the rules and regulations

promulgated by the Board constitutes a misdemeanor. 

In Rodgers v. Hopper, 768 So. 2d 963 (Ala. 2000), this Court addressed the

issue whether the Alabama Corrections Institute Finance Authority ("ACIFA") was

a State agency entitled to State immunity:

"Rodgers arguesthat ACIFA is not entitled to sovereign immunity

because, he argues, it is not an agency of the State and thus is not

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protected by Art. I, § 14, of the Constitution. Section 14 provides:

'[T]he State of Alabama shall never be made a defendant in any court of

law or equity.' This Court has held that 'the use of the word "State" in

Section 14 wasintended to protect from suit only immediate and strictly

governmental agencies of the State.' Tallaseehatchie Creek Watershed

Conservancy Dist. v. Allred, 620 So. 2d 628, 631 (Ala. 1993) (quoting

Thomas v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 480 (Ala. 1983)). 

Thus, we must determine what constitutes an 'immediate and strictly

governmental agenc[y].' The test for determining whether a legislatively

created body is an immediate and strictly governmental agency for

purposes of a sovereign-immunityanalysis involves an assessment of(1)

the character of the power delegated to the body; (2) the relation of the

body to the State; and (3) the nature of the function performed by the

body. ArmoryComm'n of Alabama v. Staudt, 388 So. 2d 991, 993 (Ala.

1980)). In Tallaseehatchie Creek Watershed Conservancy Dist. v.

Allred, supra, we applied these factors to an entity with powers similar

to those of ACIFA. The Legislature had organized the Tallaseehatchie

Creek Watershed Conservancy District ('Tallaseehatchie Creek') as a

watershed conservancy district ('WCD'), pursuant to § 9-8-50 et seq.,

Ala. Code 1975. As a WCD, [Tallaseehatchie] Creek was authorized to

act as an agent of the State. It enjoyed the customary governmental

power of eminent domain; it was exempt from State and local taxation;

and it benefited from legislative appropriations. See §§ 9-8-61(1), 9-8-

61(7), and 9-8-67. Despite these decidedly governmental

characteristics, we held that Tallaseehatchie Creek, as a WCD, was an

independent entity, and, thus, was not entitled to sovereign immunity. 

Tallaseehatchie Creek, 620 So. 2d at 631.

"This Court based its holding in that case on several key

characteristics that distinguished WCDs as entities separate from the

State. Those characteristics included the ability to: (1) sue and be sued;

(2) enter into contracts; (3) sell and dispose of property; and (4) issue

bonds. Id. at 630 (citing §§ 9-8-25(a)(13), 9-8-61(6), and 9-8-61(4) and

(5)). Notably, the Legislature also had expressly provided that debts and

obligations of a WCD were not the State's debts and obligations. Id.

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(citing § 9-8-61(3)). We found thisfinal characteristic to be dispositive,

stating:

"'This last provision clearly contemplates that WCDs are

entities separate and apart from the State; the provision

also introduces an element of ambiguity into the crucial

question of the financial responsibility for any judgment

adverse to a WCD.'

"Tallaseehatchie Creek, 620 So. 2d at 630. 

"In the present case, ACIFA has these same qualities, qualities

suggesting that it is an entity independent of the State. These qualities

include: (1) the power to sue and be sued; (2) the power to enter into

contracts; (3) the power to sell and dispose of property; (4) the power to

issue bonds; and (5) exclusive responsibility for its financial obligations

(the same quality that we found dispositive in Tallaseehatchie Creek). 

See §§ 14-2-8(2), 14-2-8(5) through (7), 14-2-12, and 14-2-24. 

"ACIFA argues that, notwithstanding that it has those qualities,

it is organizationally intertwined with the State by virtue of the State's

oversight power regarding ACIFA's chief operating activity -- prison

construction. This oversight power, however, is not different from the

power to direct operations that is commonly exercised by the owner of

any ordinary business. In this case, the State's power to direct

operationsincludesthe power to approve prison-construction plans and

the use of prison labor. ACIFA's relationship with the State does not

persuade us to accept its argument. 

"Rather than looking to ACIFA's operations, we must look to its

organizational and financial structure, as we did with the WCDs in

Tallaseehatchie Creek. Accordingly, we conclude that ACIFA and,

derivatively, its officials are not entitled to sovereign immunity."

768 So. 2d at 966-67.

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In this case, the Board has the authority to enter into employment contracts and

to enter into contracts to employ attorneys. However, as we previously noted, the

Board's authority to employ attorneys is subject to approval by the attorney general. 

See § 34-9-43(8)b., Ala. Code 1975. 

Unlike ACIFA in Rodgers, the Board was not granted the carte blanche

authority to sue and be sued. Instead, § 34-9-29, Ala. Code 1975, merely authorizes

the Board to bring an action in its name in any court of the State for the purpose of

enjoining a person from violating the provisions of Chapter 9, Title 34, Ala. Code

1975. Also, § 34-9-18(f), Ala. Code 1975, provides:

"Members of the board, any agent, employee, consultant, or attorney for

the board, and the members of any committee of dentists or dental

hygienists impaneled by the board, shall be immune from suits for any

conduct in the course of their official duties with respect to

investigations or hearings; provided, that the persons act without malice

and in good faith that such investigations or hearings are warranted by

the facts, known to them after diligent effort to obtain the facts of the

matter relative to the investigations or hearings."

Additionally, unlike ACIFA in Rodgers, the Board was not specifically

authorized by the legislature to sell and dispose of property. At most, the legislature

provided that the Board could "provide offices, furniture, fixtures, supplies, printing,

or secretarial service" to those persons it employed to assist in its duties and in

administering and enforcing the provisions of Chapter 9, Title 34, Ala. Code 1975.

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§ 34-9-43(a)(8)a., Ala. Code 1975. Further, the legislature did not authorize the

Board to issue bonds or to incur indebtedness. Finally, in Rodgers, this Court relied

heavily on the fact that the legislature expressly provided that the debts and

obligations of ACIFA were not the debts and obligations of the State. Chapter 9,

Title 34, Ala. Code 1975, does not contain any similar provisions. Therefore,

Rodgers is distinguishable. 

The facts of this case are more clearly akin to those in Mooneyham v. State

Board of Chiropractic Examiners, 802 So. 2d 200 (Ala. 2001). In Mooneyham, this

Court addressed the issue whether the Board of Chiropractic Examiners was an agent

of the State and therefore entitled to State immunity:

"We next address the immunity of the Board itself. The Board

argues that it is a State agency and that as a State agency it enjoys

absolute immunity from any lawsuit. We agree.

"Article I, § 14, of the Constitution of 1901, provides: '[T]he State

of Alabama shall never be made a defendant in any court of law or

equity.' With respect to the word 'State,' we have said:

"'This Court has held that "the use of the word 'State' in

Section 14 was intended to protect from suit only

immediate and strictly governmental agencies ofthe State." 

Tallaseehatchie Creek Watershed Conservancy Dist. v.

Allred, 620 So. 2d 628, 631 (Ala. 1993) (quoting Thomas

v. Alabama Mun. Elec. Auth., 432 So. 2d 470, 480 (Ala.

1983)). Thus, we must determine what constitutes an

"immediate and strictly governmental agenc[y]." The test

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for determining whether a legislatively created body is an

immediate and strictly governmental agency for purposes

of a sovereign-immunity analysis involves an assessment

of (1) the character of the power delegated to the body; (2)

the relation of the body to the State; and (3) the nature of

the function performed by the body. Armory Comm'n of

Alabama v. Staudt, 388 So. 2d 991, 993 (Ala. 1980).'

"Rodgers v. Hopper, 768 So. 2d 963, 966 (Ala. 2000).

"The Board of Chiropractic Examiners is a legislatively created

body. § 34-24-140, Ala. Code 1975. The Board is authorized to control

the licensing of chiropractors, § 34-24-161, and is charged with

regulating the chiropractic profession, § 34-24-166. Although the Board

may collect certain fees to generate revenue, it is required by law to

deposit those funds in the State Treasury, which sets aside those funds

for the Board's use. § 34-24-143. Under § 34-24-143, those funds are

appropriated to the Board 'to defray the expenses incurred' in carrying

out the Board's charges. Our examination of the statutes creating

and empowering the Board shows that the Board is a regulatory body

that receivesits funding from the State. Therefore, we conclude that the

Board is a State agency and, consequently, is entitled to § 14 immunity. 

Because this immunity, when applied to a governmental entity, is

absolute, the circuit court properly dismissed all the claims against the

Board." 

802 So. 3d at 203-04. Like the Board of Chiropractic Examiners, the Board "is a

regulatory body that receives its funding from the State." 802 So. 2d at 204.

Based on the foregoing, it is clear that the Board is "an arm of the state" rather

than a mere "franchisee licensed for some beneficial purpose." Staudt, 388 So. 3d at

993. Therefore, the Board is an "immediate and strictly governmental agenc[y] of the

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State," Mooneyham, 802 So. 2d at 203-04, that is entitled to immunity pursuant to

Art. I, § 14, Ala. Const. 1901, and the Court of Civil Appeals erred when it concluded

otherwise.7

B.

The Board also argues that the Court of Civil Appeals erred when, based on its

conclusion that the Board was not a State agency, it concluded that the Board of

Adjustment was not the proper forum for Wilkinson's claims against it. 

In Vaughan v. Sibley, 709 So. 2d 482, 486 (Ala. Civ. App. 1997), the Court of

Civil Appeals stated:

"Because ofthe sovereign immunity clause, the courts ofthis state

are without jurisdiction to entertain a suit seeking damages, including

back pay, for breach of contract against the state. State Bd. of

Adjustment v. Department of Mental Health, 581 So. 2d 481 (Ala. Civ.

App. 1991). Vaughan's remedy, if any, is with the Board of Adjustment.

Sections 41-9-62(a)(4) and (a)(7), Code of Alabama 1975, provide:

In Versiglio v. Board of Dental Examiners of Alabama, 651 F.3d 1272 (11th. Cir. 2011), 7

decided after Wilkinson, the United States Court of Appeals for the Eleventh Circuit addressed

the issue whether the Board was entitled to Eleventh Amendment immunity from Versiglio's

claims asserted pursuant to the Fair Labor Standards Act. In addressing this issue, the Eleventh

Circuit noted that the Board "appear[ed] to have a viable argument that it is an arm of the State

under" the test set forth in Miccosukee Tribe of Indians v. Florida State Athletic Commission,

226 F. 3d 1226 (11th Cir. 2000). 651 F.3d at 1274. However, in light of the Court of Civil

Appeals' decision in Wilkinson, the Eleventh Circuit ultimately determined that "a holding by

[the Eleventh Circuit] that the Board is an arm of the state for purposes of sovereign immunity

would be inappropriate." 651 F.3d at 1277.

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"'(a) The Board of Adjustment shall have the power

and jurisdiction and it shall be its duty to hear and

consider:

"'....

"'(4) All claims against the State of

Alabama or any of its agencies, commissions,

boards, institutions or departments arising out

of any contract, express or implied, to which

the State of Alabama or any of its agencies,

commissions, boards, institutions or

departments are parties, where there is

claimed a legal or moral obligation resting on

the state;

"'....

"'(7) All claims for underpayment by

the State of Alabama or any of its agencies,

commissions, boards, institutions or

departments to parties having dealings with

the State of Alabama or any of its agencies,

commissions, boards, institutions or

departments.'

"(Emphasis added.) The Board of Adjustment has jurisdiction over

claims against the state that are not justiciable in the courts because of

the state's constitutional immunity from being made a defendant. Lee v.

Cunningham, 234 Ala. 639, 641, 176 So. 477 (1937)."

Further, § 41-9-62(b), Ala. Code 1975, provides, in pertinent part:

"[T]he jurisdiction of the Board of Adjustment is specifically limited to

the consideration of the claims enumerated in subsection (a) of this

section and no others; ... nothing contained in this subdivision shall be

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construed to confer jurisdiction upon the Board of Adjustment to settle

or adjust any matter or claim of which the courts of this state have or

had jurisdiction ...."

In Lee v. Cunningham, 234 Ala. 639, 176 So. 477 (1937), this Court stated the

following with regard to the original act creating the Board of Adjustment:

"Our judgment, however, isthat the legislative purpose disclosed

in the act ... was to confer on said board jurisdiction over claims against

the state, colorable legally and morally well grounded, not justiciable in

the courts because of the state's constitutional immunity from being

made a defendant (Const. 1901, § 14), and to exclude from its

jurisdiction claims well grounded in law or equity, cognizable by the

courts."

234 Ala. at 641, 176 So. at 479 (emphasis added). 

The Court of Civil Appeals based its conclusion that the Board of Adjustment

was not the proper forum for Wilkinson's claims on its erroneous holding that the

Board was not entitled to § 14 immunity. However, because we have determined that

the Board is a State agency and therefore entitled to immunity pursuant to § 14, the

courts of this State are without jurisdiction in this case, and the Board of Adjustment

would have jurisdiction over Wilkinson's claims. 

For these reasons, the Court of Civil Appeals erred when it reversed the trial

court's judgment dismissing Wilkinson's complaint against the Board and remanded

the case for further proceedings. Accordingly, we reverse the judgment of the Court

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of Civil Appeals and remand the case to that court for the entry of a judgment

consistent with this opinion.

REVERSED AND REMANDED.

Malone, C.J., and Woodall, Stuart, Bolin, Parker, Murdock, Shaw, and Main,

JJ., concur.

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