Plaintiffs were five indigent individuals who were arrested and placed in pretrial detention in Harris County jail in Houston, Texas. Plaintiffs alleged that the County’s bail system for felony arrestees kept them in jail solely because they could not afford to pay the bail amount and without any individualized findings about the necessity of their confinement. Plaintiffs filed suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, claiming that this type of wealth-based detention system violates their right to equal protection and due process under the Constitution. During discovery, Plaintiffs served subpoenas on 26 felony judges in Harris County, seeking video depositions and documents pertaining to the county’s detention system. The felony judges moved to quash the subpoenas, claiming that state sovereign immunity means that the state officials do not have to comply with a third-party subpoena. The district court denied in part the motion to quash, though it narrowed the subpoenas to balance the judges’ sovereignty interests with the need for relevant fact discovery. The judges appealed to the Fifth Circuit, arguing that third-party subpoenas to state judges are barred by state sovereign immunity.

On December 15, 2021, CAC filed an amicus brief in support of the Plaintiffs. Our brief made three main points.

First, the plain text of the Eleventh Amendment poses no bar to the third-party subpoenas at issue in this case. The Amendment’s text limits a federal court’s jurisdiction over “suit[s] in law or equity, commenced or prosecuted against” a state. As our brief makes clear, a third-party subpoena, and any proceedings that arise from it, cannot be considered a “suit” within the meaning of the Eleventh Amendment. Judges and lawyers at the time of ratification understood a “suit” to be a proceeding in which a court adjudicates legal claims made by a plaintiff against a defendant. Sovereign immunity therefore only applies when the state is a party to the suit. Because the felony judges are only third-party witnesses in this case and have not been sued, sovereign immunity does not apply.

Second, the historical record confirms that sovereign immunity does not prevent state officials from participating in third party discovery. The Constitution and the Eleventh Amendment were both drafted against the backdrop of the fundamental principle that “the public has a right to every man’s evidence.” At the Founding, this right to evidence carried with it a corresponding judicial power over witnesses and was understood as an integral component to the administration of justice. Because of this, there were few exceptions to the compulsion of a third-party subpoena. Consistent with this history, the practice of Founding-era courts confirms that third-party subpoenas directed toward state officials were not thought to disturb state sovereignty. Supreme Court precedent confirms that the “very object and purpose” of the Eleventh Amendment was to allay concerns that states would be “summoned as defendants,” not that state officials might be involved in lawsuits as witnesses.

Third, our brief refuted the judges’ claim that cases involving federal and tribal sovereign immunity bolster their alleged immunity from third-party subpoenas. As our brief explains, these cases do not help them for the simple reason that federal and tribal sovereign immunity are not coextensive with state sovereign immunity. To the contrary, those immunities come from different sources and serve distinct purposes.

On September 19, 2022, the Fifth Circuit reversed, as relevant here, the district court’s order, holding that sovereign immunity bars the third-party subpoenas served on the Felony Judges.