parte Young applies, it
finds that all of Plaintiffs' claims are barred by the Eleventh
1. The Judicial Council
Eleventh Amendment immunity extends to state agencies and departments.
Pennhurst, 465 U.S. at 100; Shaw, 788 F.2d at 603-04. Not all state
governmental bodies enjoy this immunity; counties and municipalities, for
example, may be sued. Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274, 280-81 (1974) (holding that the local education
board could be sued because it bore more resemblance to a city or county
than to an arm of the state). The Judicial Council, however, is a
statewide body, created through the California Constitution for the sole
purpose of establishing statewide policy and having none of the
semi-independent powers and obligations of a municipality or county.
Accordingly, it enjoys the full protection of the Eleventh Amendment and
cannot, without its consent, be named as a defendant.
2. The Judicial Council's Individual Members
This suit arises from different facts than most Ex parte Young cases.
In a typical case, the state enacts a law and the plaintiff then sues the
potentially enforcing entity, challenging the law's constitutionality and
seeking, through declaratory or injunctive relief, to prevent
enforcement. In Ex parte young itself, for example, the Minnesota
Legislature passed a railroad regulation that ran afoul of the
turn-of-the-century Supreme Court's substantive due process
jurisprudence, and the railroads sought an injunction preventing the
Minnesota attorney general from enforcing the law.
This case arises from significantly different circumstances. Here, as
in Ex parte Young, the state has created a law with applications that
allegedly violate federal law. The creation of California's law was
somewhat more complicated than the lawmaking in Ex parte Young, since the
California statute mandated the creation of standards by an independent
policymaking body, but the underlying initial circumstance — the
creation of an allegedly unconstitutional legal obligation — is the
same. After that point, however, the stories diverge, for here, rather
than suing the attorney general or another party with enforcement
authority, Plaintiffs' have directed their suit at the policymakers.
The difference is crucial. The foundation of Ex parte Young is the
"fiction" that when a state officer enforces state law in a manner that
violates federal law, he acts outside of any authority the state is
capable of conferring and thus ceases to be a state agent. 209 U.S. at
159-60.*fn10 A claim based on Ex parte Young requires the allegation of
a threatened or ongoing act in violation of federal law. Here, such an
act is neither threatened nor ongoing.
Plaintiffs assert that the judicial Council, in passing its standards,
attempted to usurp federal law and thus violated the Supremacy Clause.
The creation of a generally applicable, and in most circumstances
constitutional, policy cannot, however, be an unconstitutional act
sufficient to trigger the applicability of Ex parte Young. If the
Judicial Council acted unconstitutionally in passing such a policy, it
would follow that any legislator or policymaker acts illegally any time
he enacts a policy with any invalid application, no matter how valid the
policy might be in all other circumstances. In other words, any time a
policymaker creates a policy susceptible to an as-applied federal
statutory or constitutional challenge, he violates federal law.*fn11
This would be a rather drastic conclusion.
The more accurate characterization of the Judicial Council's action is
that it acted entirely legally but enacted a policy potentially subject
to preemption by, and thus limitation under, federal law. Federal law may
prevent particular applications of the ethical standards, but the creation
of those standards was not itself a prohibited act. This is one reason
why the typical Ex parte Young case involves a suit against the agents
who might enforce the law in those potentially unconstitutional
circumstances rather than the policymakers responsible for its drafting;
the policymaking stage simply does not involve the requisite
unconstitutional act that allows an Ex parte Young suit to proceed.
Plaintiffs seek to escape this conclusion by arguing that the Judicial
Council, by obeying the Legislature's mandate that it draft guidelines,
in fact was "enforcing" SB 475. This argument is based on a curious
understanding of the word "enforce." Black's Law Dictionary defines
"enforce" as follows: "To put into execution; to cause to take effect; to
make effective; as, to enforce a particular law, a writ, a judgment, or
the collection of a debt or fine; to compel obedience to." Black's Law
Dictionary 528 (6th Ed. 1991). This definition accords with a common
sense understanding of enforcement — that it involves giving
particular effect to law's power of compulsion. This is a different matter
from creating a generalized policy, especially when a law drafted by a
separate body — here the California Legislature — gives that policy
its coercive power and application of the law to particular situations
will depend upon the actions of third parties.*fn12
Plaintiffs also argue, citing Los Angeles County Bar Ass'n v. Eu, that
they need not demonstrate an actual connection between the officials sued
and enforcement of the policy. In Eu, the Ninth Circuit noted that the
challenged law did not provide for any enforcement proceedings, concluded
that the officials sued were more directly connected to the
of the policy than any others, and allowed the suit to go
forward. 979 F.2d at 704. Even in Eu, however, the defendant officials
were likely to undertake specific implementing acts — namely,
appointing officials — in accordance with the challenged law, and
thus the underlying requirement that plaintiffs allege an impending
violation of federal law was satisfied. Here, by contrast, the Judicial
Council has no future role in enforcing the standards, and Plaintiffs
have not demonstrated anything unlawful' about the Council's past acts.
Thus, Plaintiff has not shown that the Judicial Council's members have
done or will do anything that would place them outside the scope of
Eleventh Amendment immunity.
This result puts the Plaintiffs in a somewhat awkward position. They
have alleged a conflict between federal and state law and have further
alleged that the conflict will injure them. Yet, because the state law
depends upon private implementation, Plaintiffs will be unable to find a
government defendant to sue, and will have no choice but to wait for
other parties to assert these arguments as defenses against the vacatur
of an arbitration award. This result is in some tension with Ex parte
Young's underlying purpose of preserving the supremacy of federal law,
and the Supreme Court has cautioned that formalistic application of ex
parte young doctrine should be limited by the federalism principles
underlying the doctrine. Coeur d'Alene Tribe of Idaho, 521 U.S. at 269.
Nevertheless, the Court issued those warnings while refusing to apply the
fiction; it does not follow from Coeur d'Alene Tribe of Idaho that a
district Court should turn to the underlying policy justifications of Ex
parte Young as a reason to extend the fiction. Accordingly, this Court
sticks to a faithful application of Ex parte Young and will not expand
the scope of Ex parte Young's exception to Eleventh Amendment immunity.
Defendants enjoy the full protection of that immunity, and Plaintiffs
cannot bring their claims in federal court.
Plaintiffs have successfully established that this court has subject
matter jurisdiction and that their case is justiciable. Eleventh
Amendment immunity protects all of the defendants, however, and thus this
case is dismissed.
IT IS SO ORDERED.