County Covered By 11th Amendment Immunity

Generally, immunity under the 11th Amendment extends only to states and not to local government. But local government can sometimes be protected by the 11th Amendment if it is considered an arm of the state in connection with the subject matter of a lawsuit.

For example, the Ninth Circuit has found local school boards in California to be state agents under the 11th Amendment. Belanger v. Madera Unified School District, 963 F. 2d 248 (9th Cir. 1992), cert. den. 507 U.S. 919 (1993). A recent decision involving zoning, a traditionally local matter, extends immunity to the county. Lui v. Commission Adult Entertainment Establishment of the State of Delaware, 213 F.R.D. 166 (D. Del 2003).

An owner of a bar sued the state and county for damages, among other things, alleging that a zoning provision barring adult entertainment within 2800 feet of a school or place of worship violated the First Amendment. The plaintiff conceded that the damage claim against the state was barred by the 11th Amendment. The court then dismissed the damage claim against the county under the state agent doctrine.

The Federal Circuits apply differing tests in determining state agency, but a common thread is whether the payment of a judgment will come from the state treasury or local government. In the Lui case, the record did not contain any information on this point, and the court moved to the two other criteria utilized by the Third Circuit, the status of the local government under state law and the degree of autonomy of the local entity.

Applying the second criteria, the court finds that under Delaware law the power exercised by the county in zoning matters is not its own but is delegated by the state. Under the third criteria, the county has no autonomy with respect to the 2800 foot requirement, as it is mandatory under state law in all zoning decisions. Even though the restriction was adopted by the county prior to the adoption of the state law, the state law has made it binding on all local governments.

Although the application of the third criteria may not be of great concern, at least to the extent it is limited to a facial challenge to the constitutionality of the state law, the application of the second criteria is troublesome. Local governments are almost always creatures of state law, either the state constitution or state legislation, so that in one sense all powers of local government may arguably be deemed delegated by the state to the county. The authority cited by the district court is simply a passing remark of the truism that the legislature has fundamental power to regulate land use. New Castle County Council v. BC Development Associates, 567 A. 2d 12171, 1275 (Del. 1989). That the court applies the state agent doctrine to zoning as a delegated state power indicates the potential for applying immunity to local governments in a variety of situations under the delegation criteria.