Any agency considered to be an “arm of the state” is generally immune from liability in federal court under the provisions of the 11th Amendment to the United States Constitution. In August, the 11th Circuit Court of Appeals ruled that the Alabama Board of Dental Examiners was not immune from liability because under state law it was not an “arm of the state.” While the immunity issue is one of federal law, federal courts defer to the state law as to whether the an entity is the State. In Miciosuki Tribe of Indians v. Fla. Athletic Commission, 226 F 3d 1226 (11th Cir. 2000), the federal court defined the analytic criteria for a determination of immunity listing 4 factors: 1) how state law defines the entity; 2) the degree of control the state maintains over the entity; 3) where the entity derives its funds; and 4) what entity is responsible for judgments against the entity.
In the past, the analysis of the impact of a suit on the state treasury was usually the determinative factor. Here, however, the federal court noted that the Alabama Court of Appeals in Wilkerson v. Board of Dental Examiners, 2011 WL 1205669, had previously ruled that the agency was not an “arm of the state” after considering such factors as the character of the power delegated, the relationship of the entity with the state, and the nature of the functions performed. While the federal circuit seemed primed to rule for immunity in this case, Versiglio V. Board of Dental Examiners of Ala. ( 11th Cir. August 26, 2011), the anomalous state court action provided and easy resolution. In its opinion the court noted that the same counsel participated in the Wilkerson case and neither side brought the case to the court’s attention. There must be an interesting story here somewhere.