Wilkinson v. Bd. of Dental Exam'rs of Ala. (Ex parte Bd. of Dental Exam'rs of Ala.)

• Citation: 102 So.3d 368
• Decision Date: 25 May 2012
• Docket Number: 1100993.
• Parties: Ex parte BOARD OF DENTAL EXAMINERS OF ALABAMA. (In re Mary Ann Wilkinson v. Board of Dental Examiners of Alabama).
• Court: Alabama Supreme Court

102 So.3d 368

Ex parte BOARD OF DENTAL EXAMINERS OF ALABAMA.

(In re Mary Ann Wilkinson

v.Board of Dental Examiners of Alabama).

1100993.

Supreme Court of Alabama.

May 25, 2012.

Luther Strange, atty. gen., and Prim Escalona and Hendon Blaylock Coody, deputy attys. gen., for petitioner.

J. Bradley Medaris and Robert N. Barber of Barber Medaris, LLC, Hoover, for respondent.

William F. Addison, Alabama Board of Medical Examiners, Montgomery; and Wayne P. Turner, Medical Licensure Commission of Alabama, Montgomery, for amici curiae Alabama Board of Medical Examiners and the Medical Licensure Commission of Alabama, in support of the petitioner.

Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery; and Jack R. Bierig of Sidley Austin LLP, Chicago, Illinois, for amici curiae American Dental Association and the Alabama Dental Association, in support of the petitioner.

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, 102 So.3d 362 (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 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. SeeAla.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 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.”

102 So.3d at 363–64.

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 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.”

102 So.3d at 363–64.

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 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]...