Snoeck v. Brussa

• Decision Date: 27 August 1998
• Docket Number: Nos. 96-16804,96-16947,s. 96-16804
• Citation: 153 F.3d 984
• Parties: 98 Cal. Daily Op. Serv. 6659, 98 Daily Journal D.A.R. 9265 Arthur SNOECK and John Wheeler, Plaintiffs-Appellants-Cross-Appellees, v. Frank BRUSSA, General Drennan "Tony" Clark, B.J. Fuller, Michael R. Griffin, Alan J. Lefebvre, Honorable Sally L. Loehrer, Harlan Elges, and Leonard I. Gang, Nevada Commission on Judicial Discipline, Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 984

153 F.3d 984

98 Cal. Daily Op. Serv. 6659, 98 Daily Journal

D.A.R. 9265

Arthur SNOECK and John Wheeler, Plaintiffs-Appellants-Cross-Appellees, v. Frank BRUSSA, General Drennan "Tony" Clark, B.J. Fuller, Michael R. Griffin, Alan J. Lefebvre, Honorable Sally L.

Loehrer, Harlan Elges, and Leonard I. Gang, Nevada

Commission on Judicial Discipline,

Defendants-Appellees-Cross-Appellants.

Nos. 96-16804, 96-16947.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 1997.

Decided Aug. 27, 1998.

Donald J. Campbell, Donald J. Campbell & Associates, Las Vegas, Nevada, for plaintiffs-appellants-cross-appellees.

Dennis L. Kennedy, Lionel, Sawyer & Collins, Las Vegas, Nevada, for defendants-appellees-cross-appellants.

Appeals from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-S-96-587-PMP(LRL).

Before: HARLINGTON WOOD, JR., ^* RYMER, and TASHIMA, Circuit Judges.

Opinion by Judge HARLINGTON WOOD, JR.; Dissent by Judge TASHIMA.

HARLINGTON WOOD, JR., Circuit Judge:

Plaintiffs, Arthur Snoeck and John Wheeler, in 1996 filed individual complaints with the Nevada Commission on Judicial Discipline alleging certain improper acts had been committed by two sitting Nevada judges. Dissatisfied with the Commission's procedures and restrictions they filed this suit against the Commission members in their official capacities as well as the Executive Director of the Commission. The Commission itself was not named a party, although for convenience we refer to the defendants collectively as the Commission. The Commission is comprised of two judges, two attorneys, and three laypersons, and it employs an executive director, all defendants in this case.

Plaintiffs allege that their common problem arose because of the confidentiality restrictions imposed on them by the Commission. Their judicial complaints were filed on a Commission form. In requesting a judicial investigation each plaintiff was required to subscribe to the following statements which appeared on the complaint form:

I request that this alleged conduct be investigated and appropriate action be taken by the Nevada Commission on Judicial Discipline. I have read and understand the Constitutional requirement of confidentiality described on the reverse side of this form.

The reverse side of the form described that confidentiality requirement:

Important Notice

Constitutional Requirement of Confidentiality

In accordance with the Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline, which are embodied in the Rules of the Nevada Supreme Court, as imposed by Article 6, Section 21(5)(a) of the Nevada Constitution, your complaint, and the facts concerning it must be kept in strict confidence. A breach of confidentiality is a violation of the Nevada Supreme Court Rules and may subject the violator to contempt proceedings before the Supreme Court.

Your complaint should not be discussed with anyone other than members of the Commission's staff, its attorneys and investigators.

The confidentiality requirement originates in the Nevada Constitution, Article 6, § 21(5)(a) which provides:

The supreme court shall make appropriate rules for:

(a) The confidentiality of all proceedings before the commission, except a decision to censure, retire or remove a justice or judge....

The result of that state constitutional provision was the adoption of Rules 5 and 6 of the Administrative and Procedural Rules of the Nevada Commission on Judicial Discipline, Supreme Court Rules, Part VII, which provide:

Rule 5.

Confidentiality.

1. All proceedings must be confidential until there has been a determination of probable cause and filing of formal statement of charges.

2."Confidentiality" encompasses all proceedings of the commission and all information and materials, written, recorded or oral, received or developed by the commission in the course of its work and relating to alleged misconduct or disability of a judge....

Rule 6.

Sanctions for violations of confidentiality.

Any person who breaches the confidentiality of judicial disciplinary proceedings is subject to being found guilty of contempt of the supreme court. In addition, members of the commission who are judges are subject to disciplinary proceedings before the commission for violation of this rule, and are also subject to removal as members of the commission upon order of the supreme court. Lawyers are subject to appropriate professional discipline for violation of this rule.

Under Nevada Revised Statute 22.100, contempt of court, about which Rule 6 warns, is a criminal offense punishable by a fine of not more than $500 and/or imprisonment for not more than twenty-five days.

These rules led to plaintiffs' allegations that the Commission violated plaintiffs' First Amendment rights by prohibiting plaintiffs "from disclosing the fact that they have filed a complaint with the Commission, and are similarly prohibited from disclosing the circumstances and events which led to the filing of those complaints." Plaintiffs sought declaratory relief alleging that the contempt threat "chilled" their rights guaranteed under the First and Fourteenth Amendments and Title 42 U.S.C. § 1983; and further that the rules are not only unconstitutionally over broad on their face, but also as applied.

The defendants opposed the plaintiffs' motion for a temporary restraining order and moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted. The Commission contended that it lacked any authority to actually enforce the Nevada Supreme Court rules objected to by plaintiffs.

An affidavit by plaintiff Wheeler was filed which the defendants moved to strike. The district court conducted a hearing and thereafter issued its order.

In ruling on defendants' motion to dismiss the district court presumed plaintiffs' factual allegations to be true and drew all reasonable inferences in favor of plaintiffs. It considered in detail the two defenses raised by the Commission, the Eleventh Amendment and plaintiffs' alleged lack of standing to bring this action. The district court held that Eleventh Amendment immunity did not extend to the Commission if the rules in question were unconstitutional and if plaintiffs' suit was not barred under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The district court, relying on Ex Parte Young, explained that the Eleventh Amendment generally bars a federal court from acting on suits by a private party against a state or its instrumentality in the absence of state consent, but that:

[I]ndividuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.

Ex Parte Young, 209 U.S. at 155-56, 28 S.Ct. 441.

And as the district court further pointed out, Ex Parte Young imposed another condition on plaintiffs seeking to avoid the Eleventh Amendment bar:

In making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party.

Ex Parte Young, 209 U.S. at 157, 28 S.Ct. 441.

That necessary "connection" was further explained in Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697 (9th Cir.1992), as being a connection that "must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Id. at 704 (citing Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir.1992); Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 714 F.2d 946, 953 (9th Cir.1983)). That connection must be determined under state law depending on whether and under what circumstances a particular defendant has a connection with the challenged state law. The district court viewed the Commission's admitted lack of contempt or disciplinary authority over plaintiffs, however, as not dispositive of the connection requirement. The court relied on the Nevada Supreme Court's holding in Whitehead v. Nevada Comm'n on Judicial Discipline, 110 Nev. 128, 906 P.2d 230 (1994), noting that, in Whitehead, the Nevada Supreme Court placed the duty on the Commission "to accept and apply both the substantive rules of conduct and the rules of procedure as stated" by that court. Id. 906 P.2d at 250 n. 24.

The district court also gave weight to the affidavit of plaintiff John Wheeler which states that it was "his understanding" that no investigative or other action would be taken by the Commission on plaintiffs' judicial complaints absent plaintiffs' agreement to abide by the confidentiality requirements. The district court therefore held that the Commission had more than a general duty to enforce state law. Plaintiffs' suit was allegedly based on the execution of the rules by the Commission which the Commission was obligated by the Nevada Supreme Court to enforce. That connection was found sufficient to satisfy the Ex Parte Young "some connection with enforcement" requirement, permitting this suit.

Notwithstanding the thoughtful reasoning of the district court, the Eleventh Amendment bars the plaintiffs' action against the Commission. The core of plaintiffs' complaint is the threat of being held in contempt for violation of the rules which chills plaintiffs' exercise of their constitutional rights. However, a careful reading of Whitehead reveals that the Nevada Supreme Court affirmatively...