Section 14 of the 1901 Alabama Constitution provides that the state can never be made a defendant in any court. However, the scope of this state immunity is restricted to “true” governmental agencies of the state. As a result of a recent case, the Alabama Board of Dental Examiners (ABDE) has been found not to be a true governmental agency and thus is not immune from suit in a breach-of-contract action.
The plaintiff was employed by the ABDE for several years until she was terminated in 2009. As a result of an audit by the Alabama Department of Examiners of Public Accounts, she discovered that she had not been properly compensated. She sued the ABDE, but the Jefferson County Circuit Court ruled that it did not have subject-matter because the ABDE was immune from suit under Section 14. The plaintiff appealed this decision to the Alabama Court of Civil Appeals, which found that the ABDE is not entitled to Section 14 immunity. In reaching its decision, the appeals court applied the “treasury test.” Even though state law declares that all funds raised by the board are appropriated to the board, the court found that the ABDE receives no funds appropriated by the legislature for its support. The board is funded by the fees it collects, which are never deposited in the state treasury. See Wilkinson v. Board of Dental Examiners, decided on April 1, 2011.
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