Case: 21-20269 Document: 00516475471 Page: 1 Date Filed: 09/19/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 19, 2022 No. 21-20269 Lyle W. Cayce Clerk Dwight Russell; Johnnie Pierson; Joseph Ortuno; Maurice Wilson; Christopher Clack, Plaintiffs—Appellees, versus 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. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-226 Before Stewart, Clement, and Elrod, Circuit Judges. Jennifer Walker Elrod, Circuit Judge: 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 Case: 21-20269 Document: 00516475471 Page: 2 Date Filed: 09/19/2022 No. 21-20269 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 af- ter 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 Protec- tion 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 plain- tiffs’ 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 Case: 21-20269 Document: 00516475471 Page: 3 Date Filed: 09/19/2022

No. 21-20269 Judges from the lawsuit. ^[1] Instead of persisting 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 doc- ument 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 oth- erwise 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 de- termined that it could “carefully balance[] sovereignty interests and the bur- dens to government officials with the need for relevant fact discovery from Case: 21-20269 Document: 00516475471 Page: 4 Date Filed: 09/19/2022

No. 21-20269 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 pro- cesses rule applies. However, the district court precluded plaintiffs from ask- ing 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 Case: 21-20269 Document: 00516475471 Page: 5 Date Filed: 09/19/2022 Case: 21-20269 Document: 00516475471 Page: 6 Date Filed: 09/19/2022 Case: 21-20269 Document: 00516475471 Page: 7 Date Filed: 09/19/2022

No. 21-20269 First, state sovereign immunity applies only to states and state officials, not to political subdivisions like counties and county officials. 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 sovereign immunity applies only to state officials in their official capacities. See City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019) (“The Supreme Court has recognized that sovereign immunity also prohibits suits against state officials or agencies that are effectively suits against a state.”). So, the Felony Judges must have been served in their official, and not personal, capacities such that the subpoenas were really served against the state. On this point, the parties agree: plaintiffs concede that the Felony Judges were served in their official capacities, i.e., that the subpoenas run against not just the officeholders but the judges’ offices themselves. This being the case, the subpoenas were served effectively against the state—as required for the Felony Judges to receive the state’s sovereign immunity. Third, and relatedly, compliance with the subpoenas must operate against the state in a way that implicates state sovereign immunity. Because “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity,” sovereign immunity generally bars individual suits against state officials in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985). But the Felony Judges are third-parties to this litigation, not defendants. In plaintiffs’ view, this is the end of the matter. They contend that sovereign immunity only applies to “suits,” that third-party subpoenas Case: 21-20269 Document: 00516475471 Page: 8 Date Filed: 09/19/2022

No. 21-20269 are not such “suits” to which sovereign immunity attaches, and therefore that the subpoenas are not barred by sovereign immunity. In other words, sovereign immunity only applies to defendants, and because the Felony Judges are not defendants, the state is not either. To this point, both parties find support in the Supreme Court’s statement that “[t]he general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.’” Dugan v. Rank, 372 U.S. 609, 620 (1963) (quotation omitted). According to the Felony Judges, sovereign immunity applies to judicial proceedings, like third-party subpoenas, that trench on the fisc or interfere with the public administration. Plaintiffs respond that Dugan’s statement presupposes the existence of a “suit” and merely defines when such a “suit” is against the sovereign. We agree with the Felony Judges that sovereign immunity bars the subpoenas. True, states-as-defendants are the usual recipients of state sovereign immunity. But sovereign immunity respects a broader berth. As the Supreme Court stated in Ex parte Ayers, an early sovereign immunity case: The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer to complaints of private persons, whether citizens of other states or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the mandates of judicial tribunals, without their consent, and in favor of individual interests.

Case: 21-20269 Document: 00516475471 Page: 9 Date Filed: 09/19/2022

No. 21-20269 123 U.S. 443, 505 (1887) (emphasis added). As Ayers’ disjunctive “or” indicates, the indignity that sovereign immunity was designed to prevent may arise either when the state is a defendant or when its sovereign prerogatives are subjected to individuals through coercive judicial process. Other early cases describe sovereign immunity, and the interests it protects, in similar terms. In The Siren, an even earlier case, Justice Field wrote for the Court that “[states] cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of Congress.” 74 U.S. (7 Wall.) 152, 154 (1868) (emphasis added) (citing United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834)); see also Stanley v. Schwalby, 147 U.S. 508, 512 (1893) (quoting The Siren); Belknap v. Schild, 161 U.S. ^[10], 16 (1896) (same). This rule, Justice Field wrote, rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The Siren, 74 U.S. (7 Wall.) at 154; see also, e.g., Belknap, 161 U.S. at 445 (quoting The Siren). And modern cases echo these earlier ones. As Dugan puts it, “[t]he general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’” 372 U.S. at 620 (citation omitted) (first quoting Land v. Dollar, 330 U.S. 731, 738 (1947); then quoting Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 704 (1949)).

Case: 21-20269 Document: 00516475471 Page: 10 Date Filed: 09/19/2022

No. 21-20269 Precisely because this is so, sovereign immunity “is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, at it appears from the entire record.” In re New York, 256 U.S. 490, 500 (1921). To be sure, plaintiffs are correct that these cases have involved judgments against states. But they are wrong to conclude that sovereign immunity protects against judgments alone. Just as sovereign immunity’s preference for substance over form means that it applies to state officials— and not just states—sovereign immunity also applies to state officials as third parties, not just as defendants. Furthermore, even putting aside the interests that sovereign immunity protects, sovereign immunity is an immunity from suit (including discovery), not just liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Where sovereign immunity applies, it applies totally. Plaintiffs stop at the Rule 12(b)(1) stage and don’t get discovery. They don’t pass go. Indeed, plaintiffs originally sued the Felony Judges directly. But when this court held in Daves, 984 F.3d at 381, vacated en banc, 22 F.4th 522, that county district- court judges receive sovereign immunity and do not lose it under Ex parte Young, plaintiffs hit a roadblock. No longer able to seek discovery from the Felony Judges as defendants (or no longer willing to try), plaintiffs dismissed the Felony Judges and sought the documents by third-party subpoena instead. Unfortunately, however, sovereign immunity is not so fickle. Plaintiffs may not obtain by third-party subpoena what they could not obtain from the Felony Judges as defendants. Returning to the interests that sovereign immunity protects, this is because both types of discovery have the same effect. Sovereign immunity “rests upon reasons of public policy.” The Siren, 74 U.S. (7 Wall.) at 154. Namely, it aims to “prevent the indignity of subjecting a state to the coercive Case: 21-20269 Document: 00516475471 Page: 11 Date Filed: 09/19/2022

No. 21-20269 process of judicial tribunals at the instance of private parties.” Ayers, 123 U.S. at 505. These interests—the sovereign’s dignity and authority over its prerogatives—are no less interesting when a sovereign is served with a subpoena duces tecum instead of a complaint. This court has already said as much. In Louisiana v. Sparks, we held that federal sovereign-immunity barred a state-court third-party subpoena against a federal officer. 978 F.2d 226, 235–36 (5th Cir. 1992). In doing so, we noted that “myriad cases involving a § 1442(a) removal of a state subpoena proceeding against an unwilling federal officer have held that the sovereign immunity doctrine bars enforcement of the subpoena.” Id. at 235. “These courts have quashed state court subpoenas . . . on the ground that a court, state or federal, lacks jurisdiction to enforce a subpoena against an unwilling sovereign.” Id. Although Sparks involved a federal officer in state court and not—as here—state officers in federal court, its sovereign immunity analysis is equally applicable. Subpoenas duces tecum are a coercive judicial process. They issue under the court’s authority and are enforced by court order. By compelling a state to produce its papers, a subpoena duces tecum subjects a sovereign to the “coercive process of judicial tribunals at the instance of private parties.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996) (quotation omitted). It “expend[s] . . . on the public treasury or domain” and “interfere[s] with the public administration.” Dugan, 372 U.S. at 620. And it allows states to be “controlled in the use and disposition of the means required for the proper administration of the government.” The Siren, 74 U.S. (7 Wall.) at 154. In so doing, compelled compliance with a subpoena duces tecum violates the “inviolable sovereignty” retained by the states in the Constitution’s wake. Alden v. Maine, 527 U.S. at 715 (quoting The Federalist No. 39, at 245 Case: 21-20269 Document: 00516475471 Page: 12 Date Filed: 09/19/2022

No. 21-20269 (James Madison)); Zoe Niesel, Terrible Touhy: Navigating Judicial Review of an Agency’s Response to Third-Party Subpoenas, 41 Cardozo L. Rev. 1499, 1512 (2020) (“In the third-party subpoena case, the court’s coopting of government personnel to answer the subpoena or assemble requested documents would both interfere with the public domain, and compel the government to act.”). 9 When haled into court on pain of contempt and forced to produce its papers (and litigate about whether it has to), it is no succor to the sovereign that it is not named in the complaint. B. Other circuits have reached similar conclusions in analogous cases involving federal and tribal sovereign immunity. These decisions reinforce ours. First is federal sovereign immunity. As just mentioned, we have already applied federal sovereign immunity to third-party subpoenas against federal officers. Sparks, 978 F.2d at 235–36. Our sister circuits have as well, applying it to bar both state-court and federal-court subpoenas, respectively. As to the former, our sister circuits are in virtual unanimous agreement that federal sovereign immunity applies to third-party subpoenas. These cases, like Sparks, typically arise when subpoenas are directed to third- party agency officials. When these subpoenas come from state court, the agency officials will typically remove the subpoena proceedings to federal court under 28 U.S.C. § 1442. If the subpoenas come from federal court, the proceedings will obviously stay there. Where state-court third-party Case: 21-20269 Document: 00516475471 Page: 13 Date Filed: 09/19/2022

No. 21-20269 subpoena proceedings are removed to federal court, our sister circuits appear to agree that federal sovereign immunity both applies to the third-party subpoenas in the first instance and bars them in the second. E.g., Elko Cnty. Grand Jury v. Siminoe, 109 F.3d 554, 556 (9th Cir. 1997); Edwards v. U.S. Dep’t of Just., 43 F.3d 312, 317 (7th Cir. 1994); Boron Oil Co. v. Downie, 873 F.2d 67, 68 (4th Cir. 1989). As an example, take the Fourth Circuit’s decision in Boron. In that case, plaintiffs to a civil-tort suit served an EPA employee with subpoenas, seeking to compel him to testify about an investigation he conducted for the EPA. 873 F.2d at 68. When the state court denied the EPA’s motion to quash, the EPA removed the subpoena proceedings to federal court. The district court found sovereign immunity “inapplicable because the government was not a party to the underlying action.” Id. at 70. But on appeal, the Fourth Circuit reversed. Relying on Dugan, the Fourth Circuit held that the subpoena “is inherently that of an action against the United States because such a proceeding ‘interfere[s] with the public administration’ and compels the federal agency to act in a manner different from that in which the agency would ordinarily choose to exercise its public function.” Id. at 71 (alteration in original) (quoting Dugan, 372 U.S. at 620); see also COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 277 (4th Cir. 1999) (“[S]overeign immunity . . . gives rise to the Government’s power to refuse compliance with a subpoena.”). Boron is representative of our sister circuits’ application of federal sovereign immunity to state-court subpoenas. Next, take the Second Circuit’s conclusion that federal sovereign immunity applies to federal-court subpoenas against federal agents. U.S. EPA v. General Elec. Co., 197 F.3d 592 (2d Cir. 1999), amended on reh’g on other grounds, 212 F.3d 689 (2d Cir. 2000). When General Electric served an EPA employee with a third-party subpoena, the district court granted the motion to quash, holding that sovereign immunity applied to the subpoena but was Case: 21-20269 Document: 00516475471 Page: 14 Date Filed: 09/19/2022

No. 21-20269 waived under the APA. Id. at 593. On appeal, the Second Circuit affirmed that sovereign immunity applied to the subpoena. The court stated that “[i]t is long settled law that, as an attribute of sovereign immunity, the United States and its agencies may not be subject to judicial proceedings unless there has been an express waiver of that immunity.” Id. at 597. Thus, after defining a judicial proceeding against the sovereign as one that “restrain[s] the Government from acting[] or . . . compel[s] it to act,” the Second Circuit held that sovereign immunity barred the subpoenas absent consent or waiver. Id. (quoting Dugan, 372 U.S. at 620). 10 This conclusion is more controversial; our sister circuits begin to disagree about the application of federal sovereign immunity to third-party subpoena proceedings in federal court. ^[11] But—crucially—the disagreement is Case: 21-20269 Document: 00516475471 Page: 15 Date Filed: 09/19/2022 Case: 21-20269 Document: 00516475471 Page: 16 Date Filed: 09/19/2022 Case: 21-20269 Document: 00516475471 Page: 17 Date Filed: 09/19/2022

No. 21-20269 And the court denied that its holding would make tribal sovereign immunity more capacious than state sovereign immunity: “[A]pplying tribal immunity to bar the instant subpoena does not require holding the Tribe is entitled to any broader immunity than the States” because “under our binding precedent . . . the Eleventh Amendment may well shield a state agency from discovery in federal court.” Id. at 1161. 13 This is not to say that state sovereign immunity is in every respect identical to federal or tribal immunity. But where these immunities apply, each provides the same “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Relying in part on a circuit precedent applying federal sovereign immunity to third-party subpoenas, Sparks, 978 F.2d at 235–36, we have concluded that state sovereign immunity similarly bars the third-party subpoenas here. Our sister circuits’ decisions applying both federal and tribal immunity to third-party subpoenas further reinforce our conclusion that state sovereign immunity is no less effective. C. History does not disturb our conclusion. Plaintiffs and their amicus marshal a variety of cases at common law and the Founding era in an attempt to show that sovereign immunity does not apply to third-party subpoenas. But as the Felony Judges note, these cases fail to show that subpoenas commonly issued over the objection of a public official entitled to sovereign immunity. See, e.g., Pearson v. Fletcher (1800) 170 Eng. Rep. 748 (KB) (ordering compliance with a subpoena over, apparently, only the defendant’s Case: 21-20269 Document: 00516475471 Page: 18 Date Filed: 09/19/2022

No. 21-20269 objection and not discussing sovereign immunity); Harris v. Whitcomb, 70 Mass. (4 Gray) 433, 435 (1855) (ordering a new trial, stating that the best evidence rule required a subpoena duces tecum for the originals of the relevant documents (from individuals who would not obviously be entitled to sovereign immunity), and not discussing sovereign immunity). 14 One exception—and plaintiffs’ best shot—is United States v. Burr, in which Aaron Burr, being prosecuted for treason, moved for a subpoena duces tecum ordering President Jefferson to produce his correspondence with a certain James Wilkinson. ^[15] 25 F. Cas. 30, 32, 34 (C.C.D. Va. 1807) (No. 14,692D). In permitting the subpoena to issue, Chief Justice Marshall remarked that “if . . . it has ever been decided that a subpoena cannot issue to the president, that decision is unknown to this court.” Id. at 34. Burr does provide some evidence for plaintiffs’ position, but not enough to tip the scales. The precise question in Burr was whether the president was entitled to an exception from the Sixth Amendment’s guarantee of “compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI; Burr, 25 F. Cas. at 34. In saying “no,” Chief Justice Marshall concluded that “[i]n the provisions of the constitution, and of the statute, which give to the accused a right to the compulsory process of the Case: 21-20269 Document: 00516475471 Page: 19 Date Filed: 09/19/2022

No. 21-20269 court, there is no exception whatever.” 25 F. Cas. at 34. In contrast to Burr, this is a civil, not criminal, case. And the compulsory process right is irrelevant here. Because Burr arose in a different context and answered a question not asked in this case, it does not tip the balance when weighed against the nature of sovereign immunity as interpreted by the Supreme Court and applied by this circuit and others in analogous contexts. * * * For these reasons, we REVERSE in part and AFFIRM in part the district court’s order.