I thought I'd better come back and support my statements in the preceeding post.
The first decision on who and what can be sued is trying to determine whether the target of the lawsuit is an 'arm of the state' or a local government entity.
This distinction is important because an "arm of the state" can claim 11th Amendment immunity, while a local government entity (e.g., a county, municipal corporation, or other political subdivision of the state) generally cannot. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 369 (2001).
Factors for assessing whether an entity is an arm of the state are described in, among other cases, Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), Chisholm, supra, 275 F.3d at 323; Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001) and Brotherton v. Cleveland, 173 F.3d 552, 561 (6th Cir. 1999) .
You should also have your attorney look at "Circumventing the Eleventh Amendment in the Third Circuit," 43 Vill. L. Rev. 923, 937 n.83 (1998); Wright & Miller, Federal Practice & Procedure § 3524 at nn.30-45.4.
There are exceptions however. Some courts have granted 11th Amendment immunity to local governments when their actions were compelled by state law. See Wright & Miller, Federal Practice & Procedure § 3524 at nn. 251-253 (2001 Supp.).
Furthermore, other kinds of immunity may apply. For a case discussing the effect of judicial immunity on ADA and § 504 claims, for example, see Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001).
As to my OPINION, after reading several of the above citations, it seems that yes the village can be sued, but that the venu should be at the district court level or above so that the same conflict of interest concerns will not be an issue.
