Judge Ryan Nelson is right on the merits, but pulls a neat little doctrinal trick that's probably a bit too slick for my tastes.
Plaintiffs sue some state court judges saying that their bail was too high and seek injunctive relief. You can't do that. Eleventh Amendment. State court judges are immune.
There's an exception to this doctrine: Ex Parte Young. But Judge Nelson is right; that exception doesn't apply where, as here, there's no reason to sue the state court judges and the relief that plaintiffs seek can properly be obtained on appeal in state court. If you think your bail is too high, appeal it. State court, not federal.
All good and right, in my view.
The one problem with this position -- and the one I'm confident plaintiffs are pretty much entirely banking on -- is the Ninth Circuit's 2004 opinion in Wolfe. That case also involved a lawsuit seeking injunctive relief against state court judges (this time for allegedly unconstitutionally applying California's Vexatious Litigant statute), and although that action was largely dismissed for a variety of reasons, the Ninth Circuit held that two state court judges, were not immune from suit under the Eleventh Amendment, and indeed reversed the dismissal of the lawsuit as applied to Chief Justice George. So holding by citing . . . Ex Parte Young.
Judge Nelson's opinion expressly concedes that "Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), can be read to hold that the Ex parte Young exception allows injunctions against judges acting in their judicial capacity." But he responds by saying that this Ninth Circuit holding -- which otherwise would bind the panel -- "is clearly irreconcilable with Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), and thus overruled."
But here's the thing. Jackson didn't make any new law. At all. The relevant portion of Jackson simply cited and quoted from Ex Parte Young itself, which itself held that "normally" you can't sue state court judges, particularly when you can directly appeal.
No kidding. Everyone knows that already. 'Cause Ex Parte Young said it. Yet the Ninth Circuit in Wolfe said that, in this setting, you can sue state court judges. So it distinguished Ex Parte Young.
In this setting, I don't think it's right for Judge Nelson to say that Jackson overrules circuit precedent, thereby relieving the panel from its obligation to follow it. Since Jackson indisputably said absolutely nothing now.
When Case X distinguishes Case Y, and then Case Z later quotes Y, that doesn't mean that X is no longer good law. Quoting -- and even relying on -- a prior precedent doesn't overrule a case that distinguishes that precedent. That says that this situation is different. The two are not thereby "clearly irreconcilable."
Now, it might well be that the purportedly distinguishing characteristic identified in X no longer works given Z because the same distinguishing characteristic present in X was also present in Z, and yet the higher court still came out the same way as Case Y (e.g., dismissed the suit). Fair enough. But two things. First, you've got to say that. Second, it's got to be true. And neither of those things exists in the present case. Judge Nelson doesn't identify the purported distinction in Wolfe, nor does he say -- nor is it true -- that that same distinction existed in Jackson. So the cases are not, in fact, "clearly irreconcilable" and hence circuit precedent overruled.
I readily admit that the opinion in Wolfe with respect to judicial immunity is, uh, slim, and on this particular point not especially explanatory. A fact that's probably slightly embarrassing to Judge Willie Fletcher, who authored the opinion in Wolfe and -- coincidentally enough -- is on the panel in the current case, and who joins Judge Nelson's opinion in full (an opinion that holds that Judge Fletcher's prior opinion is not good law). But from reading Wolfe, it seems to me that Judge Fletcher's point with respect to the immunity issue -- and why he (and the rest of the panel) thought that Ex Parte Young did not apply -- is because the judicial duties there were purportedly administrative, at least in part, rather than judicial, which was probably a bit true with respect to the state vexatious litigant list and is a fairly standard distinction applied to the usual Ex Parte Young rule. (An exception that explains, in part, why Ex Parte Young itself said that normally you can't sue state court judges, rather than holding that you categorically can't sue them.) Moreover, Jackson didn't involve that purported distinction at all; it was a straightforward "enjoin state judges from hearing private abortion lawsuits" claim.
In short, X (Wolfe) said that Y (Ex Parte Young) didn't apply for Reason Q, and although Z (Jackson) cites Y (Ex Parte Young), Z both didn't discuss Reason Q nor itself involve a fact pattern giving rise to Reason Q.
Which means that circuit precedent isn't overruled, and the panel is still bound.
Mind you, I think that Reason Q probably doesn't apply in the present case either. Which is to say that Judge Nelson's current disposition is likely right; the present case isn't really like Wolfe, and so the rule applied in Jackson and the "usual" rule from Ex Parte Young applies.
But that's a very different thing that what Judge Nelson says. In my view, if the facts of Wolfe come up again (e.g., in Arizona), the panel is bound to come out the same way. Perhaps, honestly, rightly so, as it might well be -- maybe not, but maybe -- that the administrative nature of a vexatious litigant list may be a legitimate exception to normal judicial/Eleventh Amendment immunity. Regardless, the panel is bound, and an en banc court has to figure out if Judge Fletcher got it right.
By contrast, Judge Nelson says that Judge Fletcher is wrong, period. That there's no distinguishing characteristic between Wolfe and the "normal" rule in Ex Parte Young, even though Judge Fletcher said there was.
But the Supreme Court in Jackson said so such thing. At all. Either expressly nor by implication.
So one might rightly say that Wolfe is distinguishable, but it's wrong to say that Wolfe was necessarily overruled by Jackson merely because they cited the exact same cases.
P.S. - On a totally unrelated point, I always find it funny when I have to say Judge Fletcher or Judge Nelson's full names. I was a clerk back when Judge Fletcher's mother was on the court, before Judge William Fletcher (I hope he doesn't mind me using "Willie" on occasion) was even appointed, so I sometimes feel compelled to say "William" lest anyone think it's "Betty" Fletcher, even though she's been deceased for some time now. Relatedly, I always say "Ryan" Nelson because Judge Dorothy Nelson is still a senior judge on the court, even though I don't think she's authored an opinion for the past year or two. Plus there was Judge Thomas Nelson, who was also on the Ninth Circuit when I was a clerk. So, in my mind, you always gotta make sure everyone knows which Fletcher and/or Nelson you are talking about. Oh, and, yet more coincidentally, guess who joined Judge William Fletcher's opinion in Wolfe? Yep, Judge Nelson. Thomas. (Not Ryan, obviously).
