PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WAYNE HARTER; ROBERT PAYNE,
Plaintiffs-Appellees,

v.

C. D. VERNON, individually and in
his official capacity as Sheriff of
                                                                   No. 96-1434
Rockingham County; ROCKINGHAM
COUNTY,
Defendants-Appellants,

GUILFORD COUNTY,
Movant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Rockingham.
Frank W. Bullock, Jr., Chief District Judge.
(CA-95-75-3)

Argued: September 25, 1996

Decided: November 22, 1996

Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer joined. Judge Russell concurred only in the
judgment.

_________________________________________________________________

COUNSEL

ARGUED: James Redform Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Martha Anne Geer, PATTERSON, HARKAVY &
LAWRENCE, L.L.P., Raleigh, North Carolina, for Appellees. ON
BRIEF: Melinda Lawrence, PATTERSON, HARKAVY & LAW-
RENCE, L.L.P., Raleigh, North Carolina, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The district court concluded that a sheriff in North Carolina is not
a state official for purposes of Eleventh Amendment immunity.
Because the state treasury would not pay any judgment against a sher-
iff and because the state would suffer no indignity to its soverign
integrity if immunity were not accorded to a sheriff, we affirm.

I.

The sheriff of Rockingham County, North Carolina, C.D. Vernon,
hired Wayne Harter as a dispatcher in 1988; Vernon hired Robert
Payne as a deputy sheriff in 1989. Five years later, in 1994, Vernon
faced competition from a former deputy, Sam Page, for the Demo-
cratic nomination for sheriff. According to Harter and Payne, Vernon
directly pressured his employees to campaign actively on his behalf,
and to donate funds to his re-election. Sheriff's department employees
were solicited for campaign contributions during shift meetings, and
were told to post signs supporting Sheriff Vernon in their yards. Ver-
non assertedly threatened to discharge deputies after the primary if
they failed to support him. Payne and Harter minimally supported
Vernon's campaign. Payne donated ten dollars to the campaign, and
did not vote. Harter told Sheriff Vernon that he supported him, but
preferred not to campaign for him. Nonetheless, Vernon defeated his
challenger in the primary election.

At approximately the time of the primary election, Sheriff Vernon
began to investigate alleged wrongdoings by certain deputies. Ver-
non's investigation revealed that five members of Payne's work shift
repeatedly failed to check-out with the dispatcher before taking their
breaks. Vernon spoke to three of these deputies about their behavior,

                    2
and fired the other two -- Payne and Richard Lintecum -- without
speaking to them. Payne and Lintecum were the only two of the five
who did not support Vernon's campaign. The same investigation also
assertedly unearthed difficulties with Harter's work, and Vernon dis-
charged him as well. In all, Vernon fired Harter and Payne, and seven
other employees. Harter and Payne allege that all of these employees
failed to support Vernon's campaign. Harter and Payne also assert
that they were never told that their job performance was "in any way
inadequate."

On January 31, 1995, Harter and Payne filed suit against Rocking-
ham County and Sheriff Vernon, in his individual and official capaci-
ties. Harter and Payne alleged violations of the United States and
North Carolina Constitutions. The County and Vernon moved for
summary judgment on all counts.

The district court granted summary judgment to the County on all
claims, explaining that in its view, Vernon "was not acting pursuant
to a policy of the County," and "under state law the sheriff is not an
agent of the County in employment decisions." In addition, the court
granted Vernon summary judgment on the constitutional claims
asserted against him in his personal capacity. The court, however,
held that the Eleventh Amendment did not bar claims against Vernon
in his official capacity. The court reasoned that since it was uncontro-
verted that a judgment against the sheriff would not affect the state
treasury, this factor "largely, if not wholly" disposed of any claim to
immunity, and that other relevant factors also indicated that a North
Carolina sheriff is not a state officer.

Vernon appealed; Harter and Payne did not cross appeal. Accord-
ingly, the Eleventh Amendment ruling is the only issue presented for
our review. We do not address, and express no opinion as to the cor-
rectness of, any of the district court's other holdings.

II.

Denial of summary judgment on the basis of Eleventh Amendment
immunity is immediately appealable. Puerto Rico Aqueduct and
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47 (1993).
We review questions of the applicability of Eleventh Amendment

                    3
immunity de novo. Ristow v. South Carolina Ports Auth., 27 F.3d 84,
86 (1994), vacated on other grounds, 115 S.Ct. 567 (1994).

The Eleventh Amendment provides: "[t]he 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 by its terms the Amendment
applies only to suits brought against a state by"Citizens of another
State," it is well established that "an unconsenting State is immune
from suits brought in federal courts by her own citizens as well as by
citizens of another State." Puerto Rico Aqueduct, 506 U.S. at 144.
This immunity applies to state agencies that may be properly charac-
terized as "arm[s] of the State," Mt. Healthy City Board of Ed. v.
Doyle, 429 U.S. 274, 280 (1977), as well as to state employees acting
in their official capacity. Will v. Michigan Dep't of State Police, 491
U.S. 58, 71 (1989).

The Eleventh Amendment, however, affords no protection to local
government entities and employees. Id. at 70. The crucial question,
therefore, in many Eleventh Amendment cases is whether an agency
or official is properly characterized as an arm of the state, or of the
local government.

Vernon makes two principal arguments as to why the district court
erred in holding that a North Carolina sheriff is not a state official for
Eleventh Amendment purposes. First, he claims that the court fol-
lowed the wrong test in determining whether a sheriff is an arm of the
state because the court did not properly weigh the state's "sovereign
integrity and dignity." Alternatively, Vernon asserts that even if the
district court articulated the proper test, it applied that test incorrectly.
We consider each argument in turn.

III.

The test employed in the Fourth Circuit for determining whether an
agency or employee constitutes an arm of the state was first stated in
Ram Ditta v. Maryland Nat'l Capital Park and Planning Comm., 822
F.2d 456 (4th Cir. 1987). That case set forth a four-part, non-
exclusive test for determining whether an entity is an alter ego of the

                      4
state. The first, and "most important consideration is whether the state
treasury will be responsible for paying any judgment that might be
awarded." Ram Ditta, 822 F.2d at 457. The other three inquiries
include, but are "not necessarily limited to,[1] whether the entity
exercises a significant degree of autonomy from the state, [2] whether
it is involved with local versus statewide concerns, and [3] how it is
treated as a matter of state law." Id. at 457-58. (internal citations omit-
ted). Ram Ditta made clear that "[a]lthough a federal court may con-
sider how an entity is treated under state law,`the question of whether
an agency is an alter ego of the state . . . is a question of federal, not
state, law.'" Id. at 458 n. 5 (quoting Blake v. Kline, 612 F.2d 718, 722
(3rd Cir. 1979), cert. denied, 447 U.S. 921 (1979)).

This court continued to apply the Ram Ditta test until the Supreme
Court's most recent Eleventh Amendment "arm of the state" case,
Hess v. Port Auth. Trans-Hudson, ___, U.S. ___, 115 S.Ct. 394
(1994). Hess announced that Eleventh Amendment inquiries should
be guided by the Eleventh Amendment's twin reasons for being: pre-
venting judgments from depleting state treasuries, and maintaining
"the integrity retained by each State in our federal system." Hess, 115
S.Ct. at 400, 404.

In Hess, the Court proceeded in two steps to find that the New
York/New Jersey Port Authority was not to be regarded as a state
entity entitled to Eleventh Amendment immunity. First, the Court
considered "indicators" of state entities: whether local or state gover-
nance controlled the entity, whether the implementing legislation
characterized the entity as a state agency and how state courts have
ruled on the issue, whether the entity's functions have traditionally
been regarded as state or local, and whether a state has financial
responsibility for the entity. Id. at 402-3.

The Court found that these factors, which echo the factors articu-
lated in Ram Ditta, pointed in opposite directions for purposes of
determining the Eleventh Amendment immunity of the Port Author-
ity. The Hess Court reasoned that when this is the case, a court must
focus on "the impetus for the Eleventh Amendment: the prevention of
federal court judgments that must be paid out of a State's treasury. . . .
Accordingly, Courts of Appeals have recognized the vulnerability of
the State's purse as the most salient factor in Eleventh Amendment

                     5
determinations." Hess, 115 S. Ct. at 404. Thus, Hess established that
in making a determination as to entitlement to Eleventh Amendment
immunity a number of factors must be considered, but that Ram Ditta
was correct that the state treasury factor is the most important.

We recognized this in Gray v. Laws, 51 F.3d 426, 434 (4th Cir.
1995), holding that Hess had not "materially altered the Eleventh
Amendment analysis we formulated in Ram Ditta ," and that "the
changes in our circuit's Eleventh Amendment analysis wrought by
Hess [were] not significant. . . [but] neither [were] they inconsequen-
tial." Rather than articulating the particulars of the Eleventh Amend-
ment inquiry in Gray, we remanded the case to the district court
because it was "in the best position to address in the first instance the
competing questions of fact and state law necessary to resolve the
eleventh amendment issue." Gray, 51 F.3d at 434 (internal quotations
omitted).

Although remand was entirely appropriate in Gray , leaving the par-
ticulars of the Eleventh Amendment analysis somewhat undefined has
resulted in confusion among the district courts, including the split in
the district courts in North Carolina as to the Eleventh Amendment
immunity of North Carolina sheriffs. Three judges in the Eastern Dis-
trict of North Carolina have held that the Eleventh Amendment bars
official capacity claims against a North Carolina sheriff, while judges
in the Middle District and Western District have held that it does not.
Compare Braswell v. Ellis, No. 5:94-CV-325-D3 (E.D.N.C. July 19,
1995) (Order Den. Mot. for Recons.) (holding a North Carolina sher-
iff to be a state actor and immune from official capacity suits under
the Eleventh Amendment), and Merritt v. Beckham , No.
5:94-CV-462-BO(3) (E.D.N.C. Mar 8, 1995) (Order) (same), and
Edwards v. Sheriff Billy Smith, 5:94-CT-24-BR (E.D.N.C. Sept. 22,
1994) (Order) (same), with Harter v. Vernon, No.3:95CV75
(M.D.N.C. March 22, 1996) (Memorandum Opinion) (holding that
Sheriff is not a state official for Eleventh Amendment immunity pur-
poses), and Carter v. Good, 4:94CV200 (W.D.N.C. June 7, 1996)
(Memorandum Opinion) (same).1
_________________________________________________________________
1 Some of these cases also evidence confusion on one additional point
-- whether a defendant state official can claim immunity from suit in

                     6
In light of this confusion we here explain more fully the appropri-
ate process for determining whether an entity or official is an arm of
the state for Eleventh Amendment purposes. As we have recognized
in virtually all of our Eleventh Amendment jurisprudence, the most
important factor is whether the state treasury will pay any resulting
judgment. Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996);
Gray, 51 F.3d at 433; Bockes v. Fields, 999 F.2d 788, 790-91 (4th Cir.
1993), cert. denied, 510 U.S. 192 (1994); Ram Ditta, 822 F.2d at 457.
Recognizing this as the dominant inquiry in the courts of appeals, and
"the correct legal theory," in Hess the Supreme Court noted that a
finding that the state treasury will pay the judgment is usually "dispo-
sitive." Hess, 115 S. Ct. at 404-6.

In light of the importance of the state treasury factor, we held in
Bockes, and reiterated in Gray, that if the state treasury will pay the
judgment, the entity is immune from suit, and the other Ram Ditta
factors need not be considered. Gray, 51 F.3d at 433-34 (citing
Bockes, 999 F.2d at 790-91).

The state treasury factor is also significant when the state treasury
will not pay the judgment. If that is the case, then"the most salient
factor in Eleventh Amendment decisions" weighs against a finding of
_________________________________________________________________

federal court because he is not "a person" under § 1983. "Personhood"
vel non does not provide a basis for a state official to avoid suit in federal
court. Rather, a defendant state official must plead Eleventh Amendment
immunity. The Eleventh Amendment is a bar to the jurisdiction of a fed-
eral court, and as such, it precedes the statutory question of "personhood"
under § 1983. Once the Eleventh Amendment inquiry is complete, there
is no need to consider "personhood." If an official or entity is not
immune from suit under the Eleventh Amendment that official or entity
is a "person" subject to suit under § 1983. See Will 491 U.S. at 70-71
(holding that states, and state officials and entities, are not "persons"
under § 1983 and stating "our holding here.. . applies only to States or
governmental entities that are considered `arms of the State' for Eleventh
Amendment purposes"). The opposite is also true, if the Eleventh
Amendment applies, the entity or official is not a person under § 1983.
Id. Therefore, federal courts should approach these issues solely under
the rubric of the Eleventh Amendment, and should not consider an argu-
ment of "personhood" under § 1983.

                     7
immunity. Hess, 115 S. Ct. at 404. Although in that situation, a court
should consider the other Ram Ditta factors, Hess makes clear that the
impact on the state treasury is generally determinative when the state
will not have to pay for a judgment: "If the expenditures of the enter-
prise exceed the receipts, is the state in fact obligated to bear and pay
the difference? When the answer is `No' -- both legally and practi-
cally, then the Eleventh Amendment's core concern is not impli-
cated." Id. at 406. Thus the district court correctly held that "a
determination that the state treasury will be liable for a particular
judgment is largely, if not wholly, dispositive of entitlement to Elev-
enth Amendment immunity."

Nevertheless, Vernon argues that the state treasury factor is only
determinative if the state will pay; he claims that if the state is not
responsible for the judgment, the sovereign dignity of the state
becomes the determinative factor. Vernon relies on the Supreme
Court's recent discussion of state sovereignty in Seminole Tribe of
Florida v. Florida, ___ U.S. ___, 116 S. Ct. 1114 (1996), and Hess
itself; neither case provides support for Vernon's theory.

Seminole Tribe held Congress has no power under Article III of the
Constitution to abrogate the Eleventh Amendment immunity of a
state; the case had nothing to do with who the Eleventh Amendment
applies to. Rejecting the petitioner's argument that Congress has
power to abolish a state's Eleventh Amendment immunity when an
"Act authorizes only prospective injunctive relief rather than retroac-
tive monetary relief," the Court held that the choice of remedy --
damages or prospective relief -- has no effect on Congressional
power. Seminole Tribe, 116 S. Ct. at 1124. In the course of this dis-
cussion the Court stated that "[t]he Eleventh Amendment does not
exist solely in order to `preven[t] federal court judgments that must
be paid out of a State's treasury,' Hess v. Port Authority, Trans-
Hudson Corporation, 115 S. Ct. 394, 404 (1994); it also serves to
avoid the indignity of subjecting a State to the coercive process of
judicial tribunals. . . ." Seminole Tribe, 116 S. Ct. at 1124 (parallel
citations omitted). This is certainly true, but contrary to Vernon's sug-
gestion, this one sentence quotation of Hess for a black letter rule of
Eleventh Amendment law does not address what entities are subject
to the Eleventh Amendment, and does not overrule, or even undercut,
the Court's explicit holding in Hess two years earlier.

                     8
Moreover, Vernon's reliance on Hess for the proposition that the
state treasury factor is only crucial if the state will pay the judgment
(and not if the state will not pay it) is misplaced. Hess itself renders
that argument untenable. The Hess Court made no distinction between
cases where the state treasury would be affected and those in which
it would not be affected, in holding the state treasury factor "disposi-
tive." Hess, 115 S. Ct. at 405. Instead, the Court cited with approval
a number of cases holding that if a state would not be liable for the
judgment, the Eleventh Amendment does not apply. Id. at 404-5 (cit-
ing and quoting Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and
Sewer Auth., 991 F.2d 935, 942-43 (1st Cir. 1993) ("First, and most
fundamentally [the entity's] inability to tap the Commonwealth trea-
sury or pledge the commonwealth's credit leaves it unable to exercise
the power of the purse. On this basis, [the entity] is ill deserving of
Eleventh Amendment protection"); Barkett, Levy & Fine, Inc. v. St.
Louis Thermal Energy Corp., 948 F.2d 1084, 1087 (8th Cir. 1991)
("Because Missouri and Illinois are not liable for judgments against
Bi-State, there is no policy reason for extending the states' sovereign
immunity to Bi-State."). Perhaps most significantly, Hess itself con-
cerned a suit where state treasuries were not responsible for the judg-
ment, and treated the state treasury factor as critical in denying
Eleventh Amendment immunity. Id. at 406. The court could not have
done this if, as Vernon maintains, the state treasury factor is only crit-
ical when the state is responsible for a judgment.

Vernon's theory is also contrary to our case law and to logic. Ver-
non asserts that when the state treasury will not be responsible for a
judgment, the sole consideration becomes whether the state's "integ-
rity" will be injured by any judgment and he treats the "integrity" fac-
tor as if it requires an inquiry separate from examination of the Ram
Ditta factors. Our decision in Gray established that Hess did not "ma-
terially alter[ ] the Eleventh Amendment analysis we formulated in
Ram Ditta." Gray, 51 F.3d at 434. We recognize that "the sovereign
dignity of the states" is a principal concern of the Eleventh Amend-
ment, Gray, 51 F.3d at 432, but the possible harm to a state's sover-
eign dignity is not a separate, free-floating factor outside of the Ram
Ditta considerations. Instead, we utilize the Ram Ditta factors to mea-
sure whether the sovereign dignity of a state would be affected by a
suit against an entity or official.

                     9
In sum, when determining if an officer or entity enjoys Eleventh
Amendment immunity a court must first establish whether the state
treasury will be affected by the law suit. If the answer is yes, the offi-
cer or entity is immune under the Eleventh Amendment. Bockes, 999
F.2d at 790-91. If the answer is no, the most decisive factor weighs
against Eleventh Amendment immunity, but the court should also
consider the other three Ram Ditta factors.

Because Vernon also challenges the district court's application of
the other Ram Ditta factors, we now turn to that issue.

IV.

The four Ram Ditta factors are "whether the state treasury will be
responsible for paying any judgment that might be awarded . . . .
[W]hether the entity exercises a significant degree of autonomy from
the state, whether it is involved with local versus statewide concerns,
and how it is treated as a matter of State law." Ram Ditta, 822 F.2d
at 457-58. The inquiry begins with the first factor, because "the most
important consideration is whether the state treasury will be affected."
Id. at 457. It is undisputed that North Carolina does not have to satisfy
judgments against sheriffs. Because the "state treasury will not be
affected" by any such judgment, we examine the remaining Ram Ditta
factors, keeping in mind that the most important consideration weighs
against immunity.

A.

As to the degree of a sheriff's autonomy from or control by the
state, Vernon is correct that North Carolina exercises considerable
authority over the office of sheriff. The State Constitution creates the
office. N.C. Const. art. VII, § 2. North Carolina statutes set the sher-
iff's term of office, N.C. Gen. Stat. § 162-1 (1995) (sheriff to serve
a four year term), and the qualifications for office. § 162-2. North
Carolina statutes also require the sheriff to perform multiple duties,
for example, the duty to receive and execute process, § 162-13 to -14,
the duty to keep the county jail, § 162-22 to -23, and the duty to issue
concealed weapons permits. § 14-415.10 to 14-415.23.

                     10
Vernon ignores, however, a series of indicia suggesting substantial
county control of sheriffs. Residents of a county elect their sheriff.
N.C. Const. art. VII, § 2; N.C. Gen. Stat.§ 162-1. The Board of
County Commissioners determines the number of salaried employees
in the sheriff's office. § 153A-103. The county sets and pays the sala-
ries of a sheriff and his deputies and the county determines and pays
the overall budget. §§ 153A-103, 153A-9. If a vacancy arises in the
position of sheriff, either by resignation or removal, the Board of
County Commissioners appoints a new sheriff for the remainder of
the sheriff's term. § 162-5. A petition for removal of a sheriff is pros-
ecuted by the county attorney, § 128-17, before a judge of the Supe-
rior Court in the county where the sheriff resides.§ 128-16. If a
sheriff resigns, he forwards his resignation to the county commission-
ers. § 162-3. Sheriffs must also furnish a bond to the county commis-
sioners, with the amount of the bond set by the commissioners. § 162-8.2

Therefore, county government controls many significant aspects of
North Carolina sheriffs' employment. County residents hire the sher-
iff (through election), the county government sets their pay, the
county provides for the number of deputies, and the county attorney
is the official with the power to move to dismiss the sheriff. In con-
trast, no state agency or official oversees the activities of sheriffs.
_________________________________________________________________

2 These statutes supply some of the reasons why Vernon's reliance on
Cromer, 88 F.3d 1315, is misplaced. In Cromer we held that South Caro-
lina sheriffs were state officials for Eleventh Amendment purposes.
However, in South Carolina, unlike North Carolina, the state legislature
provides for the sheriff's compensation. S.C. Const. art. V, § 24. See S.C.
Code Ann. §§ 23-11-10 et seq. (Law Co-op 1994). Moreover, the South
Carolina governor, unlike the North Carolina governor, is the public offi-
cial empowered to remove a sheriff from office for misconduct and to fill
a vacancy in the sheriff's office. S.C. Code Ann.§§ 1-3-240 and
23-11-40 (Law Co-op 1994). South Carolina also mandates training for
its sheriffs within the first year of their elected terms. § 23-11-110(C).
North Carolina does not require training for "the Sheriff elected by the
people." N.C. Stat. § 17E-11(a) (1995). Finally, and most significantly,
while in Cromer we could not discern whether the South Carolina trea-
sury would pay for some, or all, of a resulting judgment, in this case it
is undisputed that the North Carolina treasury will not pay any judgment.

                    11
A sheriff also has significant autonomy from both the state and the
county in the performance of his duties. For example, the sheriff has
freedom "to hire, discharge and supervise the employees in his
office." N.C. Gen. Stat. § 153A-103(1). 3

The question of the autonomy of a sheriff is mixed. Although a
sheriff's duties are set forth in a number of North Carolina statutes,
the individual county in which a sheriff serves exercises significant
control over him, and the sheriff also enjoys considerable autonomy
from both state and county control. This factor does not weigh
strongly in either direction.

B.

We next consider "whether [the entity] is involved with local ver-
sus statewide concerns." Ram Ditta, 822 F.2d at 458. In Hess the
Supreme Court inquired whether an entity's functions are "classified
as typically state or unquestionably local." Hess, 115 S.Ct. at 403.

It has long been understood that a sheriff is a"law enforcement
officer of the county." Southern Ry. Co. v. Mecklenburg County, 56
S.E.2d 438, 440 (N.C. 1949). See also Webster's Third New Int'l
Dictionary 2094 (3d ed. 1993) (defining sheriff as"an important
county officer in the U.S."); Black's Law Dictionary 1376 (6th Ed.
1990) (defining sheriff as "[t]he chief executive and administrative
officer of a county."). Sheriffs have been considered county officers
_________________________________________________________________
3 In finding that Vernon was not a state official the district court
focused on the sheriff's autonomy in employment decisions, because
"[t]he inquiry must focus narrowly on the actions alleged since the sher-
iff may be a state officer for some purposes, but not others." We note that
in Gray we warned against using this type of"functional" approach:

          While it is true that whether a judgment against an official is
          payable from the state treasury on occasion may depend upon the
          function being performed by the official at the time of the
          alleged illegal conduct, the primary consideration for Eleventh
          Amendment immunity is whether the state is liable for the judg-
          ment against the employee, not the function performed by the
          employee.

Gray, 51 F.3d at 435.

                    12
from the creation of that office in England. "The title sheriff is said
to be derived from the Saxon word `seyre,' a shire or county, and
`reeve,' bailiff or keeper; the `seyre-reeve' or bailiff of a county." 39
Words and Phrases 246 (quoting Commonwealth v. Cluley, 56 Pa.
270, 275 (1867)).

It is true that sheriffs are involved in state concerns, notably enforc-
ing state laws, and performing multiple duties for the benefit of the
state. But, generally a sheriff may only enforce these laws, or perform
these duties, within a given county. Furthermore, a sheriff is ulti-
mately elected by a county, and responsible to the county.

The office of the sheriff has generally been involved with local
rather than state concerns; its functions are typically local. Thus, this
factor weighs against Eleventh Amendment immunity.

C.

The last factor involves "how [the entity] is treated as a matter of
state law." Ram Ditta, 822 F.2d at 458.

This factor has engendered great confusion. Some cases have mis-
takenly treated a state court decision as to whether an entity is a state
actor as determinative. See, e.g. Levinson-Roth v. Parries, 872
F.Supp. 1439, 1447 (D. Md. 1995) (according Eleventh Amendment
immunity to Maryland sheriffs because "[t]he Court determines the
status of Sheriff Kight and Deputy Popkin by referring to Maryland
law."); Gulledge v. Smart, 1989 WL 69302, **2 (4th Cir., June 19,
1989) (relying solely on a South Carolina state court case to find sher-
iff immune under the Eleventh Amendment). In fact,"the question of
whether an agency is . . . immune from federal jurisdiction under the
Eleventh Amendment is a question of federal, not state, law." Ram
Ditta, 822 F.2d at 458 n. 5.

As a matter of federal law, a court may consider both the relevant
state statutes, regulations, and constitutional provisions which charac-
terize the entity, and the holdings of state courts on the question. See
Hess, 115 S.Ct. at 403 (examining both the relevant state statutes, and
the decisions of state courts); Mt. Healthy City Board of Ed. v. Doyle,

                     13
429 U.S. 274, 280-81 (1977) (examining state statutes); Gray, 51 F.3d
at 435-37 (examining state statutes and a state court ruling). A federal
court may "give deference to the rationale used by a state court," but
the holding is not dispositive as a matter of federal law. Ram Ditta,
822 F.2d at 460. See also Gray, 51 F.3d at 437 (cautioning district
court against overreliance on a state court decision if "there is no rea-
soning provided for the [state] court's conclusion").

Vernon argues that because North Carolina courts have twice held
that a sheriff is a state official we are bound by those decisions. See
Messick v. Catawba County, 110 N.C. App. 707, 713-14, 431 S.E.2d
489, 493 (N.C. Ct. App. 1993), disc. review denied, 334 N.C. 621,
435 S.E.2d 336 (N.C. 1993) (dismissing § 1983 official capacity
claim against a sheriff); Slade v. Vernon, 110 N.C.App. 422, 429
S.E.2d 744 (N.C. Ct. App. 1993) (same). As we did in Gray, we find
the proffered state court holdings here unpersuasive in view of the
fact that neither was decided by the state's highest court, and "there
is no reasoning provided for [either] court[s'] conclusion." Gray, 51
F.3d at 437. We find more instructive another North Carolina case,
Hull v. Oldham, 104 N.C. App. 29, 41, 407 S.E.2d 611, 618 (N.C. Ct.
App. 1991), disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (N.C.
1991), which discussed the relevant sections of the North Carolina
Constitution and held that a sheriff is a local official.

Nonetheless, Vernon argues that if we do not follow Messick and
Slade, we will violate the dignity of North Carolina. This is simply
incorrect. When this court has ruled on an issue of North Carolina law
in a diversity case, we lose no dignity if a North Carolina court dis-
agrees and corrects us. Our holdings on questions of state law do not
bind state courts, nor do state court determinations on questions of
federal law control us.

The relevant state constitutional and statutory provisions indicate
that sheriffs in North Carolina are not state officials. The North Caro-
lina legislature itself has provided that "[t]he sheriff is the only officer
of local government required by the Constitution." N.C. Stat. § 17E-1
(1995) (emphasis added). The office of sheriff is created under Article
VII of the North Carolina Constitution, entitled"Local Government."
N.C. Const. art. VII, § 2. See Hull v. Oldham, 104 N.C. App. at 41,
407 S.E.2d at 618. As discussed within, North Carolina statutes pro-

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vide the county with control over many relevant aspects of the sher-
iff's employment and also permit sheriffs considerable autonomy.

Thus, examination of the relevant constitutional and legislative
provisions and the better reasoned case law lead us to conclude state
law treats sheriffs as local officials. The state law factor also weighs
against Eleventh Amendment immunity.

V.

In sum, the Eleventh Amendment does not bar a suit against a
North Carolina sheriff in his official capacity. The North Carolina
treasury will be unaffected by any judgment against a sheriff, and the
other three Ram Ditta factors are either equivocal, or militate toward
denial of immunity. The order of the district court denying Eleventh
Amendment immunity to Sheriff Vernon is hereby

AFFIRMED.

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