Natalie Versiglio v. Board of Dental Examiners of Alabama

Case: 10-14282 Date Filed: 07/13/2012 Page: 1 of 45
[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:
Case: 10-14282 Date Filed: 07/13/2012 Page: 2 of 45
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
Case: 10-14282 Date Filed: 07/13/2012 Page: 3 of 45
__, 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
1
“The grant or denial of a state’s sovereign immunity defense is an issue of law subject to
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).
3
Case: 10-14282 Date Filed: 07/13/2012 Page: 4 of 45
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
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to
October 1, 1981.
4
Case: 10-14282 Date Filed: 07/13/2012 Page: 5 of 45
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.
5Case: 10-14282 Date Filed: 07/13/2012 Page: 6 of 45
LEXIS 69.3 In so holding, the Alabama Supreme Court conclusively held “that the
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.
3
We have attached the Alabama Supreme Court’s opinion as an appendix to this opinion.
6
Case: 10-14282 Date Filed: 07/13/2012 Page: 7 of 45
REVERSED.
7
Case: 10-14282 Date Filed: 07/13/2012 Page: 8 of 45
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)
8
Case: 10-14282 Date Filed: 07/13/2012 Page: 9 of 45
1100993
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
9
Case: 10-14282 Date Filed: 07/13/2012 Page: 10 of 45
1100993
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 complaint should 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 to Rule 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,1 arguing that the Board
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
10
Case: 10-14282 Date Filed: 07/13/2012 Page: 11 of 45
1100993
appropriated by the State to the Board for use as provided by statute.'
Wilkinson timely appealed to this court.
"__________________
"1 Wilkinson also attached to her response documentary evidence
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's subject-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) ('Evidentiary matters 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 from suit 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
11
Case: 10-14282 Date Filed: 07/13/2012 Page: 12 of 45
1100993
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 Armory Commission 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) ("MH-
MRB"), 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 of the entity would
result in liability for the State and thus potentially impact the State
12
Case: 10-14282 Date Filed: 07/13/2012 Page: 13 of 45
1100993
treasury. Ex parte Greater Mobile-Washington County Mental Health-
Mental Retardation Bd., Inc., 940 So. 2d 990, 1004 (Ala. 2006) ('MH-
MRB'). 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,
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, 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
characterizes the 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
13
Case: 10-14282 Date Filed: 07/13/2012 Page: 14 of 45
1100993
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 State-
agency 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
14
Case: 10-14282 Date Filed: 07/13/2012 Page: 15 of 45
1100993
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:
15
Case: 10-14282 Date Filed: 07/13/2012 Page: 16 of 45
1100993
"'"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)."
16
Case: 10-14282 Date Filed: 07/13/2012 Page: 17 of 45
1100993
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
qualifications that 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 this respect. 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
4
Many of the sections in Chapter 9 of Title 34, "Dentists and Dental Hygienists," were
amended effective September 1, 2011. Unless otherwise indicated, we have quoted from the
amended version when the Code section was amended.
17
Case: 10-14282 Date Filed: 07/13/2012 Page: 18 of 45
1100993
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 declares that 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:
18
Case: 10-14282 Date Filed: 07/13/2012 Page: 19 of 45
1100993
"(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 regulations regarding 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,
19
Case: 10-14282 Date Filed: 07/13/2012 Page: 20 of 45
1100993
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
20
Case: 10-14282 Date Filed: 07/13/2012 Page: 21 of 45
1100993
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:
5
Subsection (b) was added by the amendment to § 34-9-43, Ala. Code 1975, effective
September 1, 2011.
21
Case: 10-14282 Date Filed: 07/13/2012 Page: 22 of 45
1100993
"(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
22
Case: 10-14282 Date Filed: 07/13/2012 Page: 23 of 45
1100993
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:
23
Case: 10-14282 Date Filed: 07/13/2012 Page: 24 of 45
1100993
"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 receives funds from the 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 loss to 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
24
Case: 10-14282 Date Filed: 07/13/2012 Page: 25 of 45
1100993
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); Armory Comm'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
25
Case: 10-14282 Date Filed: 07/13/2012 Page: 26 of 45
1100993
listed fee.6 Therefore, the legislature requires the Board to establish and collect fees.
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 as soon 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 at such 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 of such 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 purposes shall 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
6
Before its amendment effective September 1, 2011, § 34-9-16 also set a minimum
amount that could be charged for each fee.
26
Case: 10-14282 Date Filed: 07/13/2012 Page: 27 of 45
1100993
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 expenses shall 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
27
Case: 10-14282 Date Filed: 07/13/2012 Page: 28 of 45
1100993
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 from the state ad valorem tax.
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 of the Alabama special education trust
fund to be used for the payment of public school teachers
salaries only.'
28
Case: 10-14282 Date Filed: 07/13/2012 Page: 29 of 45
1100993
"(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 of state 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 of this Resolution
[requesting the opinion] is that the appropriation that
29
Case: 10-14282 Date Filed: 07/13/2012 Page: 30 of 45
1100993
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
investments in accordance with the provisions
of this amendment.... [But] any trust income
derived therefrom shall be paid directly into
the general fund as it is received 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
30
Case: 10-14282 Date Filed: 07/13/2012 Page: 31 of 45
1100993
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
31
Case: 10-14282 Date Filed: 07/13/2012 Page: 32 of 45
1100993
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 Governor states in 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 asserts it is the 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 from becoming
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."
32
Case: 10-14282 Date Filed: 07/13/2012 Page: 33 of 45
1100993
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
33
Case: 10-14282 Date Filed: 07/13/2012 Page: 34 of 45
1100993
§ 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
34
Case: 10-14282 Date Filed: 07/13/2012 Page: 35 of 45
1100993
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 of the duties of the 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 purposes to make such reasonable expenditures from
the funds of the board as it may deem necessary to ascertain and furnish
such evidence."
35
Case: 10-14282 Date Filed: 07/13/2012 Page: 36 of 45
1100993
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 of Chapter 9, Title
34, Ala. Code 1975; institutes proceedings or has proceedings instituted before it
regarding violations of Chapter 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 argues that ACIFA is not entitled to sovereign immunity
because, he argues, it is not an agency of the State and thus is not
36
Case: 10-14282 Date Filed: 07/13/2012 Page: 37 of 45
1100993
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 was intended 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-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)). 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.
37
Case: 10-14282 Date Filed: 07/13/2012 Page: 38 of 45
1100993
(citing § 9-8-61(3)). We found this final 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
operations includes the 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.
38
Case: 10-14282 Date Filed: 07/13/2012 Page: 39 of 45
1100993
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.
39
Case: 10-14282 Date Filed: 07/13/2012 Page: 40 of 45
1100993
§ 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 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
40
Case: 10-14282 Date Filed: 07/13/2012 Page: 41 of 45
1100993
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 receives its 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
41
Case: 10-14282 Date Filed: 07/13/2012 Page: 42 of 45
1100993
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 of the sovereign immunity clause, the courts of this 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:
7
In Versiglio v. Board of Dental Examiners of Alabama, 651 F.3d 1272 (11th. Cir. 2011),
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.
42
Case: 10-14282 Date Filed: 07/13/2012 Page: 43 of 45
1100993
"'(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
43
Case: 10-14282 Date Filed: 07/13/2012 Page: 44 of 45
1100993
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, is that 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
44
Case: 10-14282 Date Filed: 07/13/2012 Page: 45 of 45
1100993
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.
45