Russell v. Jones

• Decision Date: 19 September 2022
• Docket Number: 21-20269
• Citation: 49 F.4th 507
• Parties: Dwight RUSSELL ; Johnnie Pierson; Joseph Ortuno; Maurice Wilson; Christopher Clack, Plaintiffs—Appellees, v. Judge Hazel B. JONES; Nikita Harmon; Robert Johnson; Kelli Johnson; Randy Roll ; DaSean Jones; Abigail Anastasio; Jason Luong ; Greg Glass ; Frank Aguilar; Chris Morton; Josh Hill; Hilary Unger; Amy Martin; Herb Ritchie; Ramona Franklin; Jesse McClure, III; George Powell; Brock Thomas ; Colleen Gaido; Ana Martinez, Movants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

49 F.4th 507

Dwight RUSSELL ; Johnnie Pierson; Joseph Ortuno; Maurice Wilson; Christopher Clack, Plaintiffs—Appellees,
v.
Judge Hazel B. JONES; Nikita Harmon; Robert Johnson; Kelli Johnson; Randy Roll ; DaSean Jones; Abigail Anastasio; Jason Luong ; Greg Glass ; Frank Aguilar; Chris Morton; Josh Hill; Hilary Unger; Amy Martin; Herb Ritchie; Ramona Franklin; Jesse McClure, III; George Powell; Brock Thomas ; Colleen Gaido; Ana Martinez, Movants—Appellants.

No. 21-20269

United States Court of Appeals, Fifth Circuit.

FILED September 19, 2022

Kirti Datla, Earthjustice Legal Defense Fund, Washington, DC, Jeremy Dakota Cutting, Alec George Karakatsanis, Esq., Elizabeth Anne Rossi, Civil Rights Corps, Washington, DC, Catherine Emily Stetson, Esq., Patrick Cannon Valencia, Hogan Lovells US, L.L.P., Washington, DC, for Plaintiff-Appellee Dwight Russell.

Kirti Datla, Earthjustice Legal Defense Fund, Washington, DC, Jeremy Dakota Cutting, Alec George Karakatsanis, Esq., Elizabeth Anne Rossi, Jeffrey Stein, Civil Rights Corps, Washington, DC, Catherine Emily Stetson, Esq., Patrick Cannon Valencia, Hogan Lovells US, L.L.P., Washington, DC, for Plaintiffs-Appellees Johnnie Pierson, Joseph Ortuno.

Kirti Datla, Earthjustice Legal Defense Fund, Washington, DC, Jeremy Dakota Cutting, Elizabeth Anne Rossi, Jeffrey Stein, Civil Rights Corps, Washington, DC, Catherine Emily Stetson, Esq., Patrick Cannon Valencia, Hogan Lovells US, L.L.P., Washington, DC, for Plaintiffs-Appellees Maurice Wilson, Christopher Clack.

William Francis Cole, Esq., Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Courtney Brooke Corbello, Assistant Attorney General, Office of the Attorney General for the State of Texas, General Litigation Division, Austin, TX, for Movants-Appellants.

Brianne Jenna Gorod, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Before Stewart, Clement, and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

49 F.4th 510

Plaintiffs have sued Harris County and its Sheriff to enjoin enforcement of Harris County's allegedly unconstitutional felony-bail system. While doing so, plaintiffs served subpoenas duces tecum on county district judges (Felony Judges)—the non-party movant-appellants here—seeking information about their roles in creating and enforcing Harris County's bail schedule. The Felony Judges moved to quash on several grounds, including sovereign immunity, judicial immunity, Federal Rule of Civil Procedure 45's undue-burden standard, and the "mental processes" rule. The district court denied the motion in part and granted it in part, denying sovereign immunity, judicial immunity, and the mental processes rule and allowing the bulk of the subpoenas to proceed. Because sovereign immunity bars these subpoenas and the mental processes rule might also apply, we REVERSE in part the district court's order.

I.

Plaintiffs are individuals who have been held in Harris County jails after being unable to post cash bond. The appellants, referred to by the parties as "Felony Judges," are county district-court judges who handle felony cases and promulgate Harris County's bail schedule. In their Second Amended Complaint, plaintiffs sued Harris County, its Sheriff, and the Felony Judges, arguing that the cash bail system violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

About six months later, a panel of this court released its decision in a similar case, Daves v. Dallas County , 984 F.3d 381 (5th Cir. 2020), vacated en banc , 22 F.4th 522 (5th Cir. 2022). In Daves , the panel held that the plaintiffs' 42 U.S.C. § 1983 claims against county district-court judges in that case were barred by sovereign immunity. Id. at 400 (holding that the district-court judges receive sovereign immunity and "lack[ed] a sufficient connection to the enforcement of the felony bail schedules" to satisfy Ex parte Young ). In the wake of that decision, the plaintiffs here voluntarily dismissed the Felony Judges from the lawsuit.¹ Instead of persisting

49 F.4th 511

against the Felony Judges as defendants, plaintiffs served them with third-party subpoenas under Federal Rule of Civil Procedure 45, seeking "information the judges possess about their role in, and the effect of their orders, policies, and practices on, the [bail] system." This case is about those subpoenas.

In total, the plaintiffs served three sets of subpoenas: two sets of document subpoenas and one set of deposition subpoenas. These amounted to 27 requests for production on 17 Felony Judges and four deposition demands served on four others. In response, some of the Felony Judges moved to quash. Marshalling several arguments, they contended that the subpoenas were barred by (1) sovereign immunity, (2) judicial immunity and the mental-process privilege, and (3) Rule 45 for, among other reasons, being unduly burdensome and requesting information that is privileged, irrelevant, or otherwise obtainable by the remaining defendants.

The district court granted in part and denied in part the motion to quash. Finding no decision "that sovereign immunity categorically bars seeking third-party fact discovery from state officials," the district court determined that it could "carefully balance[ ] sovereignty interests and the burdens to government officials with the need for relevant fact discovery from third parties ... [,] weigh[ing] the burdens and necessities of discovery under the framework set out in the Federal Rules of Civil Procedure."

The district court also largely denied judicial immunity and the mental processes rule. Distinguishing between judicial and nonjudicial acts, the court determined that the Felony Judges' promulgation of the bail schedule was a nonjudicial act to which neither judicial immunity nor the mental processes rule applies. However, the district court precluded plaintiffs from asking about how the judges decide any individual cases.

Finally, the district court addressed the Felony Judges' objection that the subpoenas are unduly burdensome under Rule 45. While the district court declined to remove or modify Requests for Production 19,² 20,³ 25,⁴ and 27,⁵ it removed Requests for Production 21⁶ and 22⁷ for being insufficiently

49 F.4th 512

related to the plaintiffs' claims. Otherwise, the district court held that the subpoenas were not unduly burdensome, citing the documents' relevance, the plaintiffs' efforts to mitigate duplicative discovery, the information's necessity, and the relatively small number of documents at issue.

II.

The district court had jurisdiction over this 42 U.S.C. § 1983 claim under 28 U.S.C. §§ 1331 and 1343. This court has appellate jurisdiction under 28 U.S.C. § 1291. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 141, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ; Mitchell v. Forsyth , 472 U.S. 511, 525–27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

This court reviews the existence of sovereign immunity and judicial privilege de novo. Moore v. La. Bd. of Elementary & Secondary Educ. , 743 F.3d 959, 962 (5th Cir. 2014) ; Brewer v. Blackwell , 692 F.2d 387, 390–91 (5th Cir. 1982). It reviews "the district court's decision on a motion to quash for abuse of discretion." Whole Woman's Health v. Smith , 896 F.3d 362, 369 (5th Cir. 2018). "The district court's legal conclusions should be reviewed de novo , and its factual findings should not be disturbed unless they are clearly erroneous." Marceaux v. Lafayette City-Par. Consol. Gov't , 731 F.3d 488, 491 (5th Cir. 2013).

III.

The Felony Judges first contend that sovereign immunity bars the subpoenas. We agree.

A.

The doctrine of state sovereign immunity recognizes the "residua[l] and inviolable sovereignty" retained by the states in the Constitution's wake. Alden v. Maine , 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (quoting The Federalist No. 39, at 245 (James Madison)). This principle, partially embodied in the Eleventh Amendment,⁸ is commonly distilled to the proposition that individuals may not sue a state—either in its own courts, courts of other states, or federal courts—without the state's consent. For this reason, there are "only two circumstances in which an individual may sue a State": when Congress abrogates state sovereign immunity through the Fourteenth Amendment, or when the state itself consents to suit. College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). Absent one of these two conditions, sovereign immunity poses a total bar to "suit," not just to liability. See P.R. Aqueduct & Sewer Auth. , 506 U.S. at 146, 113 S.Ct. 684.

With this in mind, we must determine whether sovereign immunity bars the third-party subpoenas served on the Felony Judges. We hold that it does.

First, state sovereign immunity applies only to states and state officials, not to political subdivisions like counties and county officials.

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Hudson v. City of New Orleans , 174 F.3d 677, 681–82 (5th Cir. 1999). So, the Felony Judges must have been acting, for sovereign immunity purposes, as state officials. They were. This court has held that for purposes of sovereign immunity, county district-court judges are "undeniably elected state officials." Clark v. Tarrant County , 798 F.2d 736, 744 (5th Cir. 1986). Our rule of orderliness binds us to this conclusion, and we agree—the Felony Judges are state officials here.

Second, state...