IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30964

KEITH HUDSON,

Plaintiff-Appellant,

UNIDENTIFIED PARTIES,

DefendantsAppellees,

versus

CITY OF NEW ORLEANS; DISTRICT ATTORNEY’S

OFFICE; SUSAN RICHARDSON; MAURICE LANDRIEU,

Defendants-Appellees.

Appeals from the United States District Court

for the Eastern District of Louisiana

May 13, 1999

Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge:2

The question before us is whether the Orleans Parish District Attorney’s Office is an arm of

the state of Louisiana and therefore immune from suit in federal court under the Eleventh

Amendment. We find that it is not, and REVERSE the decision of the district court.

F ACTUAL & P ROCEDURAL B ACKGROUND

In 1994, Plaintiff-appellant Keith Hudson was convicted in Louisiana state court for battery

and illegal possession of a firearm. After conviction and while an inmate, Hudson filed a federal

lawsuit under 42 U.S.C. § 1983 alleging se veral civil rights violations based on the circumstances

surrounding his February 22, 1994 arrest and subsequent detention. One of the defendants named

was the Orleans Parish District Attorney’s Office.

In July 1995, the magistrate judge recommended t hat Hudso n’s claim against the Orleans

Parish District Attorney’s Office be dismissed on grounds of Eleventh Amendment immunity. The

magistrate judge reasoned that the Orleans Parish District Attorney’s office was an office within the

st ate government, and so was entitled to this immunity. The district court agreed, and ent ered a

judgment in favor of the defendants in August 1995.

Hudson appealed this decision, along with several other decisions the district court had made

with respect to other defendants in the lawsuit, to t his Co urt. We severed the issue of Eleventh

Amendment immunity from the other questions presented for review, and then remanded this issue

for further development o f bo th the evidentiary record and the law bearing on the entitlement to

immunity. In particular, we noted that the question presented would be governed by the six-factor

test we established in Clark v. Tarrant County

, 798 F.2d 736, 744-45 (5 th Cir. 1986), and that in its3

Clark analysis the district court should defer to Louisiana’s interpretation of its statutes and case law.

Those factors are:

1. Whether the state statutes and case law view the agency as an arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned primarily with local as opposed to statewide,

problems;

5. Whether the entity has the authority to sue and be sued in its own name; and

6. Whether the entity has the right to hold and use property.

Id.

After holding an evidentiary hearing, the magistrate judge issued a recommendation urging

the district co urt again to dismiss Hudson’s case on Eleventh Amendment grounds. As we had

required, the magistrate analyzed Defend ant -appellee Orleans Parish District Attorney’s office’s

e ntitlement to immunit

y under the Clark factors. He concl uded that: (1) i

n accordance with the

Louisiana Supreme Court’s opin ion in Diaz v. Allstate Ins. Co. , 433 So.2d 699 (La. 1983), the

Orleans Parish District Attorney’s office is under state control; (2) it is unclear who would be liable

to pay a judgment against the office; (3) the office does not enjoy local autonomy; (4) the Orleans

Parish District Attorney’s office is primarily concerned with state rather than local concerns; (5) a suit

against the office necessarily raises claims against the District Attorney in his official capacity; (6) and

that the office holds and uses property titled both in the name of the City of New Orleans and in the

name of the State of Louisiana.

The district court subsequently adopted the magistrate’s opinion with additional comments,

and dismissed Hudson’s claim. Most importantly, the district court rejected part of the magistrate’s

analysis under the first prong of the Clark test, and noted that the Louisiana’s Supreme C ourt’s4

opinion in Diaz had been legislatively overruled. The district court nevertheless ruled that D iaz did

not alter the o ut co me of the case, and again ordered Hudson’s claim against the Orleans Parish

District Attorney’s office be dismissed.

D ISCUSSION

I

Before directly addressing the Eleventh Amendment issue, we pause for a moment to consider

how this suit was pled in federal district court. Among other defendants, Hudson brought this § 1983

suit against the Orleans Parish District Attorney’s office. However, Louisiana law does not permit

a district attorney’s office to be sued in its own name. S ee L A

. C ONST

. art. V,§ 24. Rather, it requires

that the claim be brought against the district attorney in his official capacity. S ee Riley v. Evangeline

Parish Sheriff’s Office

, 637 So.2d 395 (La. 1994) (treating a claim against a She r iff’s Office as

actually one against the Sheriff in his official capacity). Because we generally follow state law on this

issue, see F ED

. R. C IV

. P. 17(b); Gegenheimer v. Galan

, 920 F.2d 307, 310 (5 th Cir. 1991), the district

court treated the claim as one against District Attorney Harry F. Connick, in his official capacity as

District Attorney for the Parish of New Orleans. Both parties argue that this treatment was correct.

We agree, although we point out that for purposes of the Eleventh Amendment we do not

generally distinguish between suits bro ught against an entity and suits brought against the entity’s

officers in their official capacity. See Hafer v. Melo , 502 U.S. 21, 25 (1991); K entucky v. Graham

,

473 U.S. 159, 166 (1985) (“[A]s long as the government entity receives notice and an opportunity

to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against

the entity.”). The sole exception to this rule is when the plaintiff seeks prospective relief. S ee Darlak

v. Bobear

, 814 F.2d 1055, 1060-61 (5 th Cir. 1987) (observing that the Ex Parte Young

, 209 U.S. 1235

(1908) exception to the Eleventh Amendment applies when a suit is brought against a state o fficial,

as opposed to a state entity, challenging the constitutionality of his action, and the relief involved is

prospective); Voisin’s Oyster House, Inc. v. Guidry

, 799 F.2d 183, 188 (5 th Cir. 1986). The plaint iff

in this case does not meet this exception as he is seeking retroactive monetary relief. See Darlack

, 814

F.2d at 1062 n.7.

Thus, while the nominal defendant is the Orleans Paris h Dist rict Attorney’s office, for all

purposes except our Eleventh Amendment analysis the court will consider the defendant as being

District Attorney Harry Connick in his official capacity.

II

Hudson argued to the district court, and again urges on appeal, that we have already decided

in Mairena v. Foti

, 816 F.2d 1061, 1064 n.1 (5 th Cir. 1987) that the Orleans Parish District Attorney’s

office is not protected by the Eleventh Amendment. M airena involved a § 1983 lawsuit br o ught

against the Orleans Parish District Attorney in his official capacity. In a footnote we explained that

we did not see any basis to distinguish Crane v. Texas , 766 F.2d 193 (5 t h Cir. 1985) (holding that

Texas district attorney s were not protected by the Eleventh Amendment). S ee Mairena

, 816 F.2d at

1064 n.1. Consequently, we held that district attorney s in Louisiana are not arms of the state and not

entitled to sovereign immunity under the Eleventh Amendment.

Hudson claims that our Mairena decision is binding precedent, and can only be overruled by

an en banc court. Because we hold that the M airena decision was correct, we need not address

Hudson’s contention. Several district courts, including the one below, have argued that Mairena ’s

precedential value is questionable, however, because there we had not applied the six-factor Clark6

test. Additionally, we have held that “analogies between like entities cannot replace consideration

of the six relevant factors.” Flores v. Cameron County, Texas

, 92 F.3d 258, 268 (5 th Cir. 1996); see

also McDonald v. Board of Mississippi Levee Commissioners

, 832 F.2d 901, 908 (5 th Cir. 1987). We

t herefore take this opportunity to clarify why the Eleventh Amendment does not immunize the

Orleans Parish District Attorney’s office.

III

Generally speaking, the Elev ent h Amendment to the United States Constitution prevents

states from being sued in federal court. Underneath this perhaps simple statement, however, lies great

ambiguity. S ee John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983

, 84 V A

.

L. R EV . 47, 47 (1998) (“As everyone knows, the Eleventh Amendment is a mess”) (omitting

footnote). At the heart of this case is the issue of what is included in the term “state.” The view that

the amendment only prevents the state from being a named defendant to a federal action was rejected

long ago. Instead, a “suit may nonetheless be barred by the Eleventh Amendment if the state is the

real, substantial party in interest because the suit seeks to impose a liabilit y which must be paid from

public funds in the state treasury.” See, e.g., Pendergrass v. The Greater New Orleans Expressway

Commission

, 144 F.3d 342, 344 (5 th Cir. 1998) (citing Edelman v. Jordan

, 415 U.S. 651, 663 (1974)).

Of course, ident ifying when the state is a real, substantial party in interest is often not an easy

task. Courts are frequently put in the position of deciding whether the defendant being sued is better

described as an arm of the state partak ing in the privileges of Eleventh Amendment immunity or

whether the defendant is actual ly part o f a political subdivision unprotected by the Eleventh

Amendment. To help identify when a suit against a governmental entity, or an official of the entity1 The Orleans Parish District Attorney’s office cites McMillian v. Monroe County , 520 U.S. 781,

117 S.Ct. 1734 (1997), in support of a different approach to the arm o f the state analysis. In

McMillian , the Court held that the Monroe County Sheriff was a state policymaker, as opposed to

a county policymaker, for purposes of county liabilit y under 42 U.S.C. § 1983. In drawing this

conclusion, the Court observed that it did not look to whether the sheriff acted for the state in an “all

or nothing manner” but rather whether he did so while acting in a law enforcement capacity. S ee id.

at

__, 117 S.Ct. at 1737. From McMillian

, the Orleans Parish District Attorney’s office fashions a test

in which we would look at the function of the officer being sued. Applying this test here, the Orleans

Parish District Attorney’s office would have us conclude it is a state office because Hudson’s lawsuit

focuses around an action the office took in a criminal prosecution on behalf of the State of Louisiana.

McMillian did not concern the Eleventh Amendment. Instead, it dealt with the issue of county

liabilit y in § 1983 lawsuits. While we look at the function of the o fficer being sued in the latter

context, we do not in our Eleventh Amendment analysis. See Esteves v. Brock

, 106 F.3d 674, 677-78

(5 th Cir. 1997) (dealing with county liabilit y in the § 1983 context) (distinguishing the result reached

in the Eleventh Amendment case of Crane v. Texas , 766 F.2d 193 (5 th Cir. 1985)).

7 sued in his official capacity, is considered to be a suit against the state, we have in the past utilized

six factors:

1. Whether the state statutes and case law view the agency as an arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned primarily with local as opposed to statewide,

problems;

5. Whether the entity has the authority to sue and be sued in its own name; and

6. Whether the entity has the right to hold and use property.

Clark

, 798 F.2d at 744. 1 A defendant need not possess each of the above attributes to benefit from

the Eleventh Amendment. Nor are these factors necessarily equal to one another. Indeed, it is well

established that the second is the most important. S ee Delahoussaye v. City of New Iberia , 937 F.2d

144 147-48 (5 th Cir. 1991) (“Because an important goal of the Eleventh Amendment is the protecti on

of state treasuries, [this is] the most significant factor in assessing an entity’s status.”); see also Hess

v. Port Authority Trans-Hudson Corp

., 513 U.S. 30, 48-49 (1994) (citing Jacintoport Corp. v.

Greater Baton Rouge Port Comm’n , 762 F.2d 435, 440 (5 th Cir. 1985)); Pendergrass

, 144 F.3d at8

345. In contrast, we typically deal with t he last t wo factors in a fairly brief fashion. S ee

, e.g.,

Pendergrass

, 144 F.3d at 347; Delahoussaye , 937 F.2d at 147. Rather than forming a precise test,

these factors help us balance the equities and determine as a general matter “wheth er t he suit is in

reality a suit against the state itself.” Laje v. R.E. Thomason General Hosp. , 665 F.2d 724, 727 (5 th

Cir. 1982).

In the instant case, we must resolve whether the Orleans Parish District Attorney’s office is

an arm of the state of Louisiana for purposes of the Eleventh Amendment. Before turning to the

specific facts involved here and reviewing them through the filt er of the Clark test, however, it is

useful to note that we addr e ssed this same question, and in fact ultimately reached opposite

conclusions, with respect to district attorneys in both Texas and Mississippi.

In Crane v. Texas , 766 F.2d 193 (5 th Cir. 1985), we held that Texas district attorney s were

not protected by the Eleventh Amendment. We conceded that Texas district attorneys were created

by the state constitution and therefore were in some senses officers of the state. See id. at 194. In

the end, however, we concluded that the balance had to be struck against Eleventh Amendm ent

immunit y. We pointed out that the office was funded by the county, no t t he state, and that a

judgment against the district attorney in his o fficial capacity would expend itself on the county’s

treasury. S ee id. We also observed that the powers of a district attorney were limited to a county,

that the state could not oversee prosecutorial decisions, and that district attorney s were elected by

voters of the county. See id.

In contrast, in Chrissy F. by Medley v. Mississippi Dept. of Public Welfare

, 925 F.2d 844, 849

(5 th Cir. 1991), we held that protecti ons of the Eleventh Amendment encompassed Mississippi district9

attorneys. While this result differed from that reached in Crane

, the reasoning in both cases focused

around the same issues. Most importantly, we found that Mississippi district attorney offices were

primarily state-funded. S ee id. We also noted that the Mississippi district attorney could represent

the state in judicial proceedings outside the district in which he or she served. See id.

Having examined the most relevant precedent, we can now turn directly to the facts specific

to the Orleans Parish District Attorney’s office. We review de novo the district court’s decision to

dismiss on Eleventh Amendment grounds. See Kenedy Memorial Foundation v. Mauro , 21 F.3d 667,

670 (5 th Cir. 1994) (reviewing the dismissal for lack of subject-matter jurisdiction de novo); W arnock

v. Pecos County , 88 F.3d 341, 343 (5 th Cir. 1996) (noting the Eleventh Amendment deprives a

federal court of subject-matter jurisdiction). After a very careful review, we conclude that the

Orleans Parish District Attorney’s office is not an arm of the state and therefore not entitled to the

benefits of the Eleventh Amendment. The question is a close one; as we will elaborate upon below,

the state’s constitutional framework classifies district attorneys as state officials, and there exists a

potential constitutional mechanism for the Louisiana Attorney General to oversee at least some of

the district attorneys’ prosecutorial decisions. Nevertheless, we perceive the balance as tilting against

sovereign immunit y. The two most important considerations pointing towards sovereign immunit y

are both significant ly undermined by Louisiana’s political realities. Despite the state constitution, the

Louisiana legislature has treated district attorney s more like representatives o f t he state’s political

subdivisions than of the state itself. And although the Attorney General theoretically could oversee

local prosecutions, that power is greatly hampered by the requirements that such intervention occur

only with cause and with judicial authorization. Ultimately we are most persuaded by the fact that the10

state treasury will in all likelihood be left untouched if damages were to be levied against the Orleans

Parish District Attorney’s office. It is well established that this second factor is crucial to our

Eleventh Amendment arm of the state analysis. See Delahoussaye v. City of New Iberia

, 937 F.2d

144, 147-48 (5 th Cir. 1991). In sum, we conclude that the Orleans Parish District Attorney’s office

is not protected from suit in federal court by the Eleventh Amendment.

A

The first factor we take into account is how the state, through its constitution, laws, judicial

opinions, attorney general’s opinions, and other official statements, perceives the entity in question.

See Pendergrass v. The Greater New Orleans Expressway Commission , 144 F.3d 342, 344-45 (5 th

Cir. 1998 ). If t he state characterizes the office in question as an arm of the state, this factor is

counted in favor of Eleventh Amendment immunit y. S ee id. The district court described this factor

as “a mixed bag.” We agree, and consider this factor as neither cutting towards or against Eleventh

Amendment immunit

y.

1

On the one hand, the Louisiana constitution considers the Orleans Parish District Attorney’s

office an arm of the st ate. The Louisiana constitution divides its attention between the state

government, which is further subdivided into the legislative, executive, and judicial branches, and the

local government. C ompare L A

. C ONST

. art. II, § 1 (dividing the state government into three

branches) with id. at art. VI (dealing with local government). Importantly, the provisions establishing2 Hudson contends that our analysis overlooks the fact that the Louisiana constitution in two places

refers to district attorney as “parish” officials. See L A

. C ONST . art. VI, §§ 5(g) & 7(b). This exact

argument has already been rejected by the Louisiana Supreme Court. S ee Diaz

, 433 So.2d at 701

n.3.

11 the offices of district attorney are cont ained within the articles that deal with state government --

specifically in article V, which deals with the Judicial Branch. S ee id. at art. V, § 26. The relevant

provision creates the office of district attorney for each judicial district, specifies that they are elected

officials, limits their term of office to six years, establishes qualifications for the office, and permits

them the power to appoint assistant district attorneys. S ee id. at. art. V, § 26(a). It also specifies that

the district attorney

, or a designated assistant, “shall have charge of every criminal prosecution by the

state before the grand jury in his district, be the representative of the state before the grand jury in

his district, and be the legal advisor to the grand jury.” See id. at art V, § 26(b). Given its method

of organization, we suspect that the framers of the state constitution assumed that district attorney s

were officers of the state. 2

This suspicion is confirmed by the Louisiana Supreme Court, which has mentioned on several

occasions that the district attorney is a state officer who exercises constitutional duties . First, the

Louis iana Supreme Court appears to view district attorneys as state officials as opposed to parish

officials. See Diaz v. Allstate Ins. Co.

, 433 So.2d 699, 701 (La. 1983). Interpreting article V, § 26

of the state constitution, the Diaz court held:

A district attorney is a constitutional officer who serves in the judicial b ranch and

exercises a porti on of the sovereign power of the state within the district of his office.

His office, duties and powers are governed by the constitution and the legislature, and

are not subject to local control. His office, therefore, is an office of state, not local

government.3 This porti on of Diaz is still good law. The part of the Diaz opinion interpreting L A

. R EV

. S TAT

.

A NN . §13:5108.2, however, has been legislatively overruled. See La. Atty . Gen. Op. No. 89-210A

(Sept. 8, 1989).

4 In drawing this conclusion, we do not rely on abstract references to Louisiana district attorney s

as state officers. See, e.g., Knapper

, 681 So.2d at 947. We have declined to cons ider similar

references in the past. See Crane , 766 F.2d at 194 n.1.

12 Id. at 701 (citations omitted). 3 While only two justices agreed with this part of the opinion at the time

Diaz was handed down, subsequent decisions by that court rei terate thi s concl usi on wi thout

reservation. S ee Knapper v. Connick , 681 So.2d 944, 945 (La. 1996) (citing this portion of D iaz );

Board of Commissioners of the Orleans Levee District v. Connick

, 654 So.2d 1073, 1077 (La. 1995)

(same). Additionally, in State v. Saizan , 692 So.2d 1045, 1050 (La. 1997), the Louisiana Supreme

Court distinguished between municipal prosecutors and district attorneys, noting that the former

enforce local ordinances and represent specific localities, while the latter enfo rce state l aw and

represent the state. S ee id. The state’s view, at least when the state constitution is involved, appears

to be that the Orleans Parish District Attorney’s office is an extension of the state. 4

The parties strongly disagree as to how significant a role this conclusion should play in our

analysis under this factor: Hudson suggests it should barely matter, if at all, while the Orleans Parish

District Attorney’s office considers it decisive. We reject both extremes, and simply consider it one

glimpse into how the state of Louisiana characterizes its district attorneys.

Hudson contends that our precedent require s us to put little stock in the fact that the state

constitution creates the district attorney. We disagree. Although we held in C rane v. Texas , 788

F.2d 193 (5 th Cir. 1985) (per curiam) that a Texas district attorney sued in his official capacity could

not share in the state’s Eleventh Amendment immunit y despite the fact that the Texas constitution13

created the district attorney’s office, our analysis did not ignore the state constitution. S ee id

. at 194.

Rather, we closely read the document and concluded that the significance derived from its creation

of the office was d iminished because “other local officers are created by it as well.” I d. This

d ist inct ion does not apply to the case at bar. Unlike the Texas constitution, which intermingles its

discussions of state and local governmental entities, the Louisiana Constitution carefully divides its

at tention between the two and primarily discusses the district attorneys’ office in the po rt io ns

reserved for state government. Therefore, we can give the fact that the state constitution views the

district attorney’s office as a state office the full weight it deserves.

That is not to say that our analysis considers this fact decisive with respect to the first factor.

The Orleans Parish District Attorney’s office suggests that this fact should end our inquiry because

our analysis of this factor is governed by a test fashioned by the Louisiana Supreme Court to resolve

whether an entity is a state office or a local office. S ee Mullins v. State , 387 So.2d 1151, 1152 (La.

198 0). Under t hat test, “‘[i]f the office is created by the legislature, or is established in the first

instance by the constitution, it is a state office.’” See id. at 1152 (quoting State v. Taylor , 11 So.132

(La. 1892)).

We cannot adopt this approach, however. W hile we refer to the provisions of state law to

assess an entity’s entitlement to Eleventh Amendment immunit y, se e Regent s of the University of

California v. Doe

, 51 9 U.S. 425, __ n.5, 117 S.Ct. 900, 904 n.5 (1997), federal law ultimately

controls the scope of our Eleventh Amendment analysis. See id. ; see also Earles v. State Board of

Certified Public Accountants

, 139 F.3d 1033, 1036 (5 th Cir. 1998). That is, federal law has designed

our Eleventh Amendment analysis, and it alone sets the bounds of what we look to in conducting our14

inquiry. Although federal precedent requires that we look to the state’s view of the entity in question

to help us reach our conclusion, and that we do so by looking at state law, this state law is relevant

only to the extent that it gives us insight into how the state perceives the entity. It certainly does not

limit the scope of our inquiry, as the Orleans Parish District Attorney’s office suggests.

Applying this understanding, we do not look to, for instance, t he Lo uisiana constitution

because the Louisiana Supreme Court instr ucted us to do so, but rather because our precedent

requires that we do so. See Crane

, 766 F.2d at 194 (examining the Texas constitution). It is entirely

a matter of coincidence that the Mullins test would have us look at the same document. More visibly,

the fact that we find that the Louisiana constitution creates the office of district attorney in its articles

dealing with state government does not end our inquiry, as it might under M ullins

. Rather, we

continue with our analysis of the first facto r, examining o ther provisions of state law to find the

Orleans Parish District Attorney’s office’s “place in the overall scheme of Louisiana government.”

Earles , 139 F.3d at 1037.

2

Although the state constitution characterizes the Orleans Parish District Attorney’s office as

an arm of the state, the state legislature seems to take the opposite view. First, the legislature has not

hesitated in assigning local functions to district attorneys. See L A

. C ONST

. art V, § 26(b) (noting that

district attorney s “shall perform other duties provided by law”). For example, district attorneys, in

the name of a parish, have the right to file suits to abate public nuisances. See L A

. R EV

. S TAT

. A NN

.

§ 13:4722. Also, in all suits against political subdivisions of the state, service is proper on the district5 Section 42:1441 only forbids the state from being named as an actual party to a lawsuit. Reading

this provision in isolation, the state could still be require d t o indemnify the district attorney in the

event of an unfavorable judgment. This conclusion is illustrated by § 42:1441(b), which provides that

“the provisions of said Subsection A [should not] be construed to amend or repeal R.S. 13:5108.1.”

As we conclude later in this opinion, however, the legislature eliminated its obligation to indemnify

the district attorney under § 13.5108.1.

The Orleans Parish District Attorney’s o ffice argues we should ignore § 42:1441 because it is

constitutionally infirm. Only a single state district court has found this to be true, however, and that

decision was set aside by the Louisiana Supreme Court. See Diaz , 433 So.2d at 701 (setting aside

l ower court determ i nati on that § 42:1441 vi ol ated L A

. C ONST

. art. XII, § 10(a)). Moreover, the

Orleans Parish District Attorney’s office concedes that § 42:1441 may be constitutional following the

1995 amendment to L A

. C ONST

. art. XXII, § 10. Our own review of the constitutional provisions in

question, unaided by actual arguments by the parties, suggests that the Orleans Parish District

Attorney’s office’s concession is probably a wise one. In any event, we utilize § 42:1441 not for its

legal force but to highlight the state legislature’s view of the district attorney’s office.

15 attorney for the district in which the political subdivision is found if no agent has been designated for

service of process. See L A

. R EV

. S TAT

. A NN . § 13:5107(b). Similarly, Louisiana district attorneys

can advise the governing authority of the parish on compromising or settling any claim against the

parish. See L A

. R EV

. S TAT

. A NN

. § 13:5109. Moreover, district attorney s can act as counsel for

parish boards and commissions, and even city school boards, wit hin t heir districts. S ee L A

. R EV

.

S TAT

. A NN . § 16:2(A). In these ways, the Louisiana legislature has treated district attorneys more

like local officials than officers of the state.

Additionally, the state legislature has put considerable distance between itse lf and district

attorneys. This is illust

rated by L A

. R EV

. S TAT

. A NN

. § 42:1441(a), which declares that the state

cannot be named as a party when the basis of the lawsuit are the acts or omis sio ns by a district

attorney or an employee of a district attorney

. 5 See Gibson v. State of Louisiana , 644 So.2d 1148

(La. App. 4 th Cir. 1994) (relying on § 42:1441(a) when holding that “[t]he District Attorney’s Office

is not the State and the State is not liable for the acts of the District Attorney or his employees.”);16

Obermier v. State of Louisiana

, 606 So.2d 937, 939 (La. App. 3 rd Cir. 1992) (relying on § 42:1441(a)

when holding that “[i]f a party is seeking recovery for damages against a district attorney of the state

of Louisiana, the path of recourse does not lead to the state. The statute mandates that the state shall

n o t be liable for any damages caused by the district attorney.”). Further, the legislature recently

forbade courts from holding the state vicariously liable for the “offenses and quasi offenses” of the

district attorney. See L A

. R EV

. S TAT

. A NN . §§ 42:1441.1 & 42:1441.2.

Finally, recent opin io ns o f the Attorney General suggest that the Orleans Parish District

Attorney’s office is more properly considered a local rather than a state entity. In La. Atty. Gen. Op.

No. 89-210A (Sept. 8, 1989), the Attorney General noted that the legal position of district attorney s

and similar o fficials has become “perhaps the most unsettled area of local go vernment law.” Hi s

evaluation rested on dramatic changes in the state legislature’s view of these officials, specifically

referring to the 1985 passage of L A

. R EV

. S TAT

. A NN

. §§ 42:1441.1-.4, which legislatively overruled

several Louisiana Supreme Court decisions including Mullins

, and the 1984 amendments to L A

. R EV

.

S TAT

. A NN

. § 13:5108.2, which overruled the Louisiana Supreme Court’s decision in Diaz

. Most

importantly, he observed that these changes indicated a legislative intent to shift responsibility over

the district attorney s from the state to the local level. Thus, while the Attorney General had opined

in 1987 that for most circumstances the district attorney is not a political subdivision, see La. Atty.

Gen. Op. No. 87-328 ( July 1, 1987), by 1990 he had concluded that district attorneys and their

employees are considered employees of their respective parishes despite the fact that they exercise

constitutional and statutory authority. See La. Atty. Gen. Op. No. 90-194 (May 25, 1990).17

In sum, the state’s view of the district attorney s is complex and perhaps even still changing.

On the one hand, the state appears to place them as officers of the state in its constitutional scheme.

On the other, the state indicates through its legislation and opinions of the attorney general that they

are part of local government. We agree with the district court’s assessment that this factor points in

different directions, and as such, we decline to count it either in support for, or denial of, Eleventh

Amendment immunity. See Earles v. State Board of Certified Public Accountants , 139 F.3d 1033,

1038-39 (5 th Cir. 1998) (considering a co nflict ing factor not to impact the Eleventh Amendment

conclusion).

B

The second factor we look to is the source o f funding for the Orleans Parish District

Attorney’s Office. See Clark

, 798 F.2d at 744. We conduct this examination to determine whether

a judgment against it will be paid with state funds. S ee, e.g.,Pendergrass

, 144 F.3d at 3 45-46

(examining the source of funding to determine if the judgment wou ld be paid out of the state

treasury); Earles , 139 F.3d at 1037 (same). It bears repeating that this is the most important factor

in our Eleventh Amendment arm of the state analysis. S ee Delahoussaye

, 937 F.2d at 147-48. In

assessing this second factor, we conduct inquiries into, first and most importantly, the state’s liabilit y

in the event there is a judgment a gainst the defendant, and second, the state’s liability for the

defendant’s general debts and obligations. See Jacintoport Corp. , 762 F.2d at 441.

16 That section provides in pertinent part:

A. It is hereby declared to be the public policy of this state that the state shall hold

harmless and indemnify all officers and employees of the state from any financial

loss which, for purposes of this Section, shall mean and include

. . . judgment in

federal court brought pursuant to the provisions of Sections 1981 through 1983

of Title 42 of the United States Code by reason of alleged negligence or other act

by an officer or employee, provided that such officer or employee at the t ime

damages were sustained was acting in the discharge of his duties and within the

scope of his employment and that such damages did not result from the

intentional wrongful act or gross negligence of such officer or employee.

See L A

. R EV

. S TAT

. A NN

. § 13:5108.1 (emphasis added). That is, § 13:5108.1 deals with

indemnification in the event of a federal civil rights lawsuit. This is in contrast to § 13:5108.2, which

deals with indemnification in the event of a state negligence lawsuit.

7 With respect to indemnification statutes, it is import a nt to remember that this lawsuit was not

brought against District Attorney Harry Connick in his personal (sometimes referred to as individual)

capacity. The Eleventh Amendment does not come into play in personal capacity suits, s ee Flowers

v. Phelps

, 964 F.2d 400, 401 n.2 (5 th Cir. 1992) (per curiam), and the existence of an indemnification

statute promising to pay judgments when an officer is sued in his individual capacity does not extend

the Eleventh Amendment’s protecti ons around the officer. See Flowers

, 964 F.2d at 401 n.2 (citing

Downing v. Williams

, 624 F.2d 612, 626 (5 th Cir. 1980) (“Such an indemnity statute is only an

agreement between the state and these individuals and cannot thereby be converted into an extension

of Eleventh Amendment immunit y by the state.”), vacated on other grounds

, 645 F.2d 1226 (5 th Cir.

1981) ).

18 The Orleans Parish District Attorney’s Office submits that the state is requi red under L A

. R EV

.

S TAT

. A NN . § 13:5108.1 to indemnify it in the event of an unfavorable § 1983 judgment. 6 We have

before considered an indemnification statute, obliging the state to pay for judgments rendered against

the defendant in his official capacity, sufficient to fulfill this factor. 7 S ee Voisin’s Oyster House, Inc.

v. Guidry

, 799 F.2d 183, 188 (5 th Cir. 1986). In fact, V oisin’s dealt with the very statute the Orleans

Parish District Attorney’s office cites today. There, we confronted a § 1983 suit brought against the

Secretary of the Louisiana Department of Wildlife and Fisheries in his official capacity. In assessing

the Secretary’s i mmunity under the Eleventh Amendment, we relied upon both §§ 13:5108.1 and8 The apparent cause of this statutory ame ndment was a Louisiana Supreme Court decision

interpreting § 13:5108.2 to include district attorneys. S ee Diaz v. Allstate Insurance Company

, 433

So.2d 699 (La. 1983).

9 In addition, it is possible that § 13.5108.1 has no application here even if it included district

attorney s . First , t hat section requires that the Attorney General be contacted five days after the

lawsuit is filed. S ee L A

. R EV

. S TAT

. A NN

. § 13:5108.1(b). According to testimony from Camille

Grace Buras, first assistant to District Attorney Harry Connick, that has not occurred in this case. (In

fact, Ms. Buras testified that to her knowledge the Attorney General’s office is never contacted as

required by § 13:5108.1(b) when Mr. Connick in his official capacity is the subject of a civil rights

19 13:5108.2 in concluding that, because the state would be obliged under Louisiana law to indemnify

the Secretary, the lawsuit was really one against the state. S ee id. at 188; see also Hughes v. Savell

,

902 F.2d 376, 379 n.5 (5 th Cir. 1990).

However, § 13:5108.1 d o es not apply to district attorneys. The section explains that its

protecti ons extends to “officers and employees of the state,” see L A

. R EV

. S TAT

. A NN

. § 13:5108.1,

but relies on § 13:5108.2 to clarify whom this phrase includes. S ee La. Atty. Gen. Op. No. 80-105A

(Jan. 8, 19 81); s ee also Voisin’s

, 799 F.2d at 188 (citing both §§ 13:5108.1 and 13:5108.2, even

tho ugh t he case dealt with a § 1983 suit, and § 13:5108.2 primarily deals with indemnification in

negligence suits). In 1984, the state legislature amended § 13:5108.2 to exclude district attorneys

from state indemnification. 8 See L A

. R EV

. S TAT

. A NN

. § 13:5108.2 (explaining that the phrase “an

o fficial, officer, or employee of the state” no longer includes “parish o fficials set forth and named in

Article VI, Sections 5(G) and 7(B) of the Constitution of Louisiana.”); L A

. C ONST

. art. VI, §§ 5(g)

& 7(b) (mentioning distric t at t orney s in both); s ee also La. Atty. Gen. Op. No. 89-210A (Sept. 8,

1989) (recognizing this turn of events).

We t hus conclude that § 13:5108.1 is properly read to exclude district attorneys from

indemnification in the event of a § 1983 suit. 9 Because we conclude that the state will not be requiredlawsuit, suggesting that the Orleans Parish District Attorney’s office does not actually believe it could

be indemnified under the provision.). Second, § 13.5108.1 requires that indemnification occur only

when “negligence or other act by an officer or employee” is the subject of the lawsuit. See L A

. R EV

. S TAT

. A NN

. § 13:5108.1(b) Presumably, this means to exclude indemnification when the defendant

acted willfully, knowingly, or with deliberate indifference. Our review of the record does not reveal

with which state of mind the district attorney’s office is alleged to have acted.

10 In Regents of the University of California v. Doe

, the Supreme Court confronted the question

of “whet her t he fact that the Federal Government has agreed to indemnify a state instrumentality

against the costs o f lit igation, including adverse judgments, divests the state agency of Eleventh

Amendm ent immunit y.” 519 U.S. at 426. The Court unanimously answered this question in the

negative, reasoning t hat “with respect to the underlying Eleventh Amendment question, it is the

entity’s potential legal liabilit y, rather than its abilit y or inabilit

y to require a third party to reimburse

it, or to discharge the liability in the first instance, that is relevant.” Id. at 431.

Hudson interprets Doe to render indemnificat ion entirely irrelevant for purposes of Eleventh

Amendment analysis. While we do not reach the question, we cannot help but notice that the Court

made sure to observe that “the question whether a money judgment against a state instrumentality

or official would be enforceable against the State is of considerable importance to any evaluation of

the relationship between the state and the entity or individual being sued.” Id. at 430.

20 under § 13.5108.1 to indemnify the Orleans Parish District Attorney’s office, we need not consider

Hudso n’s alternative argument that the Supreme Court’s decision in R egents of the University of

California v. Doe

, 519 U.S. 425 (1997) overrules our holding in Voisin’s that a state’s

indemnification statute is sufficient to count this factor in favor of Eleventh Amendment immunit y. 10

The sum of our first inquiry, then, is that damages awarded against the Or l eans Parish District

At t o rney’s office are not required under Louisiana indemnification law to come from the state’s

treasury.

2

Yet this does not end our inquiry. We can still count this factor in favor of Eleventh

Amendment immunit

y if it is nonetheless clear that a judgment will be paid with state funds because11 The remainder of funds came from the federal government or from private sources.

21 the state is responsible for the defendant’s general debts and obligations. S ee Jacintoport

, 762 F.2d

441. We do not find this to be the case, however.

Our conclusion is best illustrated by examining the 1995 budget of the Orleans Parish District

Attorney’s office, which totaled about $6.59 million. Of this amount, the State paid approximately

$3.7 millio n, while the Cit y o f New Orleans contributed a little more than $1.75 million. 1 1

Importantly, either all or substantially all of t he funds fro m the State are earmarked for specific

purposes, n amely salaries for the attorneys working there and for the prosecution costs of child

support cases. These funds cannot be used to pay a § 1983 judgment. On the other hand, the funds

from the City are discretionary, meaning the office can use those funds for any purpose whatsoever.

Moreover, the exact amount of these discretionary funds significantly fluctuates from year to year.

Peter Brandt, the Orleans P arish Dist rict Attorney’s office’s executive assistant district attorney,

testified that the City was obligated by state statute to fund the operation of the office, and that the

exact amount is identified after the office prepares a budget and approaches the city council with a

number based on the amount of funding it thinks is needed to run the office properly. Given this, we

find it considerably easier to say that the City of New Orleans, rather than the state, is responsible for

the general debts and obligations of the Orleans Parish District Attorney’s office.

Of course, the City might decline to pay the portions of the budget dealing with the judgment.

Putting aside Hudson’s contention that the office would be able to compel the City, either though the

state judicial system or through the state legislature, to pay the judgment under L A

. R EV

. S TAT

. A NN

.

§ 13:5108.1(b), it is within the realm of possibility that the Orleans Parish District Attorney’s office12 For one thing, it is woven out of pure speculation. Even ignoring the complexities of the state

legislative procedure, and the even more chaotic nature of the budgeting process, we cannot help but

notice that after the state paid the Mairena judgment, it passed two provisions arguably in an attempt

to prevent this event from recurring: (1) § 42:1441.3, which according to Hudson assigns legal

liabilit y for such judgments to the City as opposed to the State; and (2) § 42:1441.2(b), whi ch

requires that the offices of the district attorney secure general liabil it y insurance for itself and its

officers. Remarkably, various officers of the Orleans Parish District Attorney’s office testified that

they were not even aware of § 42:1441.2(b). At best, the Orleans Parish District Attorney’s office

can only hope that the state will actually pass th e bill it requests when there is an outstanding

judgment.

22 would be forced to go to the state legislature and appear before the appropri ate com m ittees i n an

attempt to have the state treasury pay the judgment. In fact, the office argues, this is what happened

when a judgment was rendered against it in Mairena v. Foti , 816 F.2d 1061 (5 th Cir. 1987).

However, we do not believe this thread arguably connecting the state and the Orleans Parish

District Attorney’s office is strong enough to bear the weight of the Eleventh Amendment. 12 It is not

enough that there be a simple connection between the state and the defendant. Rather, “[w]e must

look to see whether the entity “‘stands in the shoes of the state i tsel f.’” E arles

, 139 F.3d at 1036

(citation omitted). If we cannot say that the Orleans Parish District Attorney’s office is the “alter ego”

of the state, we cannot provide it the protections of the Eleventh Amendment. See id. And this we

cannot sa y. It is o nly a remote possibility that the state will elect to pay a judgment against the

Orleans Parish District Attorney’s office . Moreover, even if we were to assume that a state’s

voluntary, after-the-fact payment could be considered a “liabilit y” on the state’s treasury, the distance

between the state and the office “discourages u s from conferring immunity.” S ee Jacintoport

, 762

F.2d at 441-42 (finding the possibility that the State could be liable for a judgment if two other parties

defaulted as having “o nly an ancillary effect on the State treasury” and therefore insufficient for

purposes of the Eleventh Amendment).23

Having inquired as to the state’s liabilit y for both an unfavorable judgment and the office’s

general debts and obligations, we find that the state is fiscally isolated from the Orleans Parish District

Attorney’s office. As such, we count this factor against Eleventh Amendment immunity.

C

“The t hird factor we look to focuses on the degree of local autonomy the entity at issue

enjoys.” Pendergrass

, 144 F.3d at 346. Because this case concerns a district attorney’s office, we

look with particularly keen interest at the amount of freedom the office has in prosecuting cases. See

Crane , 766 F.2d at 194.

According to the state constitution, the Attorney General can interfere in the prosecution of

cases, but only if it has cause and judicial authorization. S ee L A

. C ONST

. art. IV, § 8. Naturally, the

parties characterize this provision quite differently. Hudson submits that, in the vast majority of cases

at least, Louisiana district attorneys’ offices are completely unsupervised by the Attorney General.

In fact, he points out that the Attorney General has never exercised his constitutional authority with

respect to the Orleans Parish District Attorn ey’s office. In contrast, the Orleans Parish District

Attorney’s office characterizes the state constitutional provision as providing the exact level of state

oversight needed given the importance of prosecutorial independence.

Weighing these arguments against one another, we find that the balance tilts slightly towards

Eleventh Amendment immunit y. Louisiana law creates a viable check over the Orleans Parish District

Attorney’s office, an oversight mechanism by the Attorney General that was entirely absent in Crane

.

See Crane

, 766 F.2d at 194 (describing T EX

. R EV

. C IV

. S TAT

. A NN

. art. 333 (1973) as only requiring1 3 Admittedly, the Orleans Parish District Attorney’s office has a point. The crimes it prosecutes

are violations of state criminal law as opposed to local ordinances. Yet this fact has not given us

pause in the past. See Chrissy F. by Medley v. Mississippi Dept. of Public Welfare

, 925 F.2d 844,

849 (5 th Cir. 1991); Crane

, 766 F.2d at 194. Indeed, we never even mentioned this fact in C hrissy

24 reports by the district attorney upon the Texas Attorney General’s demand). Nevertheless, the state’s

involvement is at best infrequent, limit ed to cases where the state has cause and judicial authorization.

This fact cautions us in attaching undue weight to this factor.

D

The next factor we look to is “[w]hether the entity is concerned with primarily lo cal, as

opposed to state-wide problems.” Pendergrass

, 144 F.3d at 347. According to Hudson, three facts

signal the local focus of the Orleans Parish District Attorney’s office: first, that the district attorney

is elected by, and accountable only to, voters in the relevant judicial district, see L A

. R EV

. S TAT

. A NN

.

§16.1; second, that the state constitution requires the district attorney to have resided in that district

for two years, see L A

. C ONST

. art. V, § 26(a), presumably to ensure that the dist rict attorney i s

intimately familiar with t he pro blems encountered by the people in that district; and third, that the

district attorney’s prosecutorial powers end at the boundary line of the district in which he serves.

In response, the Orleans Parish District Attorney’s office points out that it prosecutes crimes against

the state, not just Orleans Parish. It is only for the sake of convenience, the office says, that the state

legislature decided to divide the state into districts.

As we have twice before dealt with district attorneys’ claims of Eleventh Amendment

immunity, these arguments are not new ones. We find Hudson’s argument persuasive because our

case law directs us to the same factors he cites. 13 Our analysis has emphasized two concerns. First,F. and Crane

. As our analysis with respect to this fourth factor did not take this fact into account,

we similarly decline to so in the instant case.

25 we have found it highly useful to examine the geographic reach of the district attorney’s prosecutorial

powers. For example, when concluding that Texas district attorneys were local officials we thought

it significant that their prosecutorial powers were “limit e d to the terri tory of [thei r] di stri ct.” S ee

Crane

, 766 F.2d at 194. On the other hand, when we came to the opposite conclusion with respect

to Mississippi district attorney s we found it important that the state’s law provided them the power

to represent the state outside the district. S ee Chrissy F. by Medley v. Mississippi Dept. of Public

Welfare

, 925 F.2d 844, 849 (5 th Cir. 1991). Second, we have looked at whether the district attorney

is elected by voters locally or state-wide. S ee Crane

, 766 F.2d at 194 (holding that the local election

of Texas district attorneys indicated they are local officials).

Conducting these same inquiries, we c o nclude that the Orleans Parish District Attorney’s

office is concerned with local problems. First, the parties stipulated to the fact that the Orleans Parish

District Attorney has jurisdiction extending only to the limit s o f t he geo graphical confines of his

judicial district. Second, the parties stipulated to the fact that Louisiana district attorneys are elected

by only those voters of the judicial district in which they serve. As such, we count this factor against

Eleventh Amendment immunity.

E

The fifth factor we look to is the entity’s “capacity to sue and be sued.” Earles , 139 F.3d at

1038. We count this factor against Eleventh Amendment immunity if the entity has these abilities.

See Pendergrass

, 144 F.3d at 347. The parties agree that the Orleans Parish District Attorney’s office,26

as an entity, cannot itself sue nor be sued; ra t her all suits are brought by or against the district

attorney in his official capacity. As we observed earlier, however, the distinction between the entity

and an ent it y’s o fficer sued in his official capacity is irrelevant for purposes of this Eleventh

Amendment inquiry. Thus, this factor cuts against Eleventh Amendment immunity.

F

Finally, our last inquiry concerns whether the entity has the right to hold and use property

.

See Pendergrass

, 144 F.3d at 347. If it does, we consider this factor as counseling against Eleventh

Amendment immunit y. S ee id

. The district court found that different facts uncovered in this inquiry

pointed in different directions, an assessment with which we agree. The property used by the Orleans

Parish District Attorney’s office is either in the name of the office (for example, all of the automobiles

and computers used by the office) or in the name of the City of New Orleans (for example, the titles

to the buildings housing t he office). On the other hand, the property used by the Orleans Parish

District Attorney’s office is subject to the property control laws of the Division of Administration for

the State, and the automobiles used by the office were all purchased with funds from the state. Given

the conflict, this factor has little effect on our analysis. See id.

C ONCLUSION

Although th e question is a close one given the presence of some facts suggesting a close

relationship between the Orleans Parish District Attorney’s office and the state, the balance ultimately

tilts against Eleventh Amendment immunit y. Most importantly, our review of Louisiana law indicates27

that public funds from the state treasury will not be used to cover an adverse judgment against the

entity. Furthermore, the indications of a close relationship between the Orleans Parish District

At t orney’s office and the state are at least undermined, if not equaled, by facts suggesting a mo re

distant relationship. After carefully weighing these factors against one another, we conclude that the

Orleans Parish District Attorney’s office is not an arm of the state. Accordingly, we REVERSE the

d ecision of the district court and REMAND the case to the district court for further proceedings

consistent with this opinion.