A Narrow Eleventh Amendment Immunity for Political Subdivisions: Reconciling the Arm of the State Doctrine With Federalism Principles

1.The eleventh amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."U.S. Const.amend.XI.Although the language of the amendment only bars federal jurisdiction over suits by a citizen of a foreign state or nation, the Supreme Court has consistently held that the eleventh amendment bars suits by a citizen against his own state.Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); see Employees v. Department of Pub.Health & Welfare, 411 U.S. 279, 280 (1973); Parden v. Terminal Ry., 377 U.S. 184, 186 (1964); Great N. Life Ins.Co. v. Read, 322 U.S. 47, 51 (1944); Hans v. Louisiana, 134 U.S. 1, 15 (1890).2. In Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)326, 373, 377 (1824), Chief Justice Marshall construed the eleventh amendment as barring suit only when the state was the party of record.The Chief Justice, however, later recanted and held that the eleventh amendment barred a suit against the Governor of Georgia.See Governor of Ga.v. Sundry Afr.Slaves, 26 U.S. (1 Pet.) 84, 93-94 (1828).Courts thereafter have applied the eleventh amendment whenever the state is the real party in interest.See Edelman v. Jordan, 415 U.S. 651, 663 (1974); Ford Motor Co. v.Department of Treasury, 323 U.S. 459, 464 (1945); In re Ayers, 123 U.S. 443, 505-06 (1887); Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981); Hander v. San Jacinto Junior College, 519 F.2d 273, 278-79 (5th Cir.1975); George R. Whitten, Jr., Inc. v. State Univ.Constr.Fund, 493 F.2d 177, 179-80 (Ist Cir.1974).3. See e.g., Cory v. White, 457 U.S. 85, 91 (1982) (reaffirming the holding in Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937), that the eleventh amendment bars suits against state officers unless the officials are alleged to be acting against federal or state law); Edelman v. Jordan, 415 U.S. 651, 668-69 (1974) (eleventh amendment bars suits against state officials that seek retroactive monetary relief that will be paid with state funds); Ford Motor Co. v.Department of Treasury, 323 U.S. 459, 462-64 (1945) (eleventh amendment bars action against state officials when it seeks a monetary recovery from the state).4. See, eg., Morris v. Washington Metro.Transit Auth., 781 F.2d 218, 224-28 (D.C.Cir.1986) (eleventh amendment extends to Washington Metropolitan Transit Authority); Garcia v. Board of Educ., 777 F.2d 1403, 1407 (10th Cir.1985) (eleventh amendment protects local school board), cert denied, 55 U.S.L.W. 3231 (U.S. Oct. 7, 1986) (No. 85-1728); Stones v. Los Angeles Community College Dist., 572 F. Supp.1072, 1078 (C.D. Cal.1983) (community college district entitled to eleventh amendment protection), aff'd on other grounds, 796 F.2d 270 (9th Cir.1986); cf.Carey v. Quern, 588 F.2d 230, 233-34 (7th Cir.1978) (director of Cook County Department of Public Aid, as an officer of an arm of state government, entitled to eleventh amendment protection).1986] ELEVENTH AMENDMENTso closely related to the state that it receives eleventh amendment protection.14 Municipalities and counties epitomize the political subdivision.' 5 Other local governmental entities, however, are not as easily categorized. 1 6 On two occasions the Supreme Court has relied on a balancing test to determine whether different entities are instrumentalities of the state entitled to eleventh amendment immunity, or political subdivisions subject to suit.7 The Court, however, has yet to articulate the reason a political subdivision's embodiment of the state's sovereign power is insufficient to merit eleventh amendment protection.Recent Supreme Court developments provide the background for a reevaluation of the arm of the state doctrine.In Pennhurst State School & Hospital v. Halderman 8 and Atascadero State Hospital v. Scanlon,' 9 the 391, 401 (1979); Mount Healthy City School Dist.v. Doyle, 429 U.S. 274, 280 (1977); Morris v. Washington Metro.Area Transit Auth., 781 F.2d 218, 224 (D.C.Cir.1986); Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984), cert.denied, 469 U.S. 1113 (1985); Unified School Dist.No. 480 v. Epperson, 583 F.2d 1118, 1121-22 (10th Cir.1978).14.See, eg., Fincher v.Florida Dep't of Labor, 798 F.2d 1371, 1371-72 (11th Cir.1986) (Florida Unemployment Appeals Commission is an arm of the state); Clark v. Tarrant County, 798 F.2d 736, 743-45 (5th Cir.1986) (Tarrant County Adult Probation Department is an arm of the state); Martinez v. Board of Educ., 748 F.2d 1393, 1396 (10th Cir.1984) (under New Mexico law, local school boards are arms of the state).15.See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979) ("[T]he Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities .... "); Crane v. Texas, 759 F.2d 412, 416-17 (5th Cir.) (eleventh amendment does not extend to counties), modified on other grounds, 766 F.2d 193 (1985), cert.denied, 106 S. Ct. 570 (1985); Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984) (eleventh amendment does not extend to municipalities and counties), cert.denied, 469 U.S. 1113 (1985); Tuveson v.Florida Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984) (same); Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520 (1lth Cir.1983) (same); Morris v. Washington Metro.Area Transit Auth., 583 F. Supp.1522, 1524 (D.D.C. 1984) (same), aff'd, 781 F.2d 218 (D.C.Cir.1986).16.Compare Holley v. Lavine, 605 F.2d 638, 643-44 (2d Cir.1979) (County Department of Social Services not entitled to eleventh amendment protection), cert.denied, 446 U.S. 913 (1980) with Carey v. Quern, 588 F.2d 230, 233-34 (7th Cir.1978) (director of Cook County Department of Public Aid is an officer of an arm of the state and therefore benefits from the state's eleventh amendment immunity); Jackson Sawmill Co. v. United States, 580 F.2d 302, 302, 308 (8th Cir.1978) (Illinois Toll Highway Authority is a state