Justice Gorsuch, writing for the majority in Whole Woman’s Health v. Jackson,1 made two bold immunity claims: that state court judges possess sovereign immunity2 and that the “traditional exception”3 to sovereign immunity recognized in Ex parte Young4 does not apply to the “machinery” of state courts.5 While the Court described these claims as though they were nothing new,6 they sit poorly with decades of federal precedent recognizing the permissibility of suing state judges.7 Historically, federal courts handled these suits under separate immunity doctrines without any mention of sovereign immunity.8 Lower federal courts have thus been left to puzzle out whether, and how, Whole Woman’s Health perturbs these other immunity doctrines. Recently, in Hunt v. Richmond Police Department,9 the Eastern District of Virginia held that sovereign immunity barred a suit for retrospective declaratory relief against a state judge.10 Hunt’s focus on retrospective relief implies that prospective declaratory relief could bypass sovereign immunity, preserving a narrow path for suits against state judges that Whole Woman’s Health left ambiguous.
In June 2020, Frank Hunt was protesting at the Robert E. Lee Monument in Richmond, Virginia, when an unknown officer’s rubber bullet struck him in the face, causing “physical and psychological injuries” that required treatment at a nearby hospital.11 Four years later, Hunt filed requests under Virginia’s Freedom of Information Act12 relating to the Lee Monument protest incident.13 And at some point before filing suit, he received an adverse ruling in an unspecified criminal case by a Virginia state court judge, whom he alleged to have a history of racially biased rulings.14
Hunt pooled these grievances and filed suit in federal court in the Eastern District of Virginia.15 Proceeding pro se, Hunt brought four claims: a 42 U.S.C. § 1983 excessive force claim against a John Doe officer and the Richmond Police Department (Count I), a § 1983 Monell16 failure to train and supervise claim against the Chief of Police and the city of Richmond (Count II), a § 1983 Caperton17 due process claim against the state judge for failing to recuse (Count III), and a state Freedom of Information Act claim against the Richmond Police Department and Richmond (Count IV).18 The complaint also listed the Commonwealth of Virginia as a defendant on a vicarious liability theory.19 Hunt requested a declaratory judgment that his rights were violated, compensatory damages, punitive damages against the John Doe officer, an injunction that the police department amend its use-of-force policy, and an award of “attorney’s fees and court costs under 42 U.S.C. § 1988.”20
District Court Judge Novak21 dismissed the John Doe officer and Chief William Blackwell from the case after Hunt failed to timely serve them.22 Both Virginia and the state judge filed motions to dismiss for lack of jurisdiction and motions to dismiss for failure to state a claim.23 Richmond, for both itself and its police department, filed a motion to dismiss for failure to state a claim.24
Judge Novak granted Virginia’s motion to dismiss.25 Virginia argued that it possessed sovereign immunity, that § 1983 claims could not be brought against a state, and that its courts had exclusive jurisdiction over Virginia Freedom of Information Act claims.26 The court granted the motion on the grounds that states are not “persons” under § 1983.27
The court then turned to Count III.28 The state judge defendant made three arguments: As a state official sued in his official capacity, he was entitled to sovereign immunity; he had absolute judicial immunity; and, alternatively, the Rooker–Feldman29 doctrine applied.30
The court granted the state judge’s motion to dismiss on sovereign immunity grounds.31 Applying Whole Woman’s Health, Judge Novak concluded that Eleventh Amendment immunity applies to state judges acting in their official capacities.32 The court further noted Whole Woman’s Health’s directive that “the Ex parte Young exception ‘does not normally permit federal courts to issue injunctions against state-court judges or clerks.’”33 It then found that none of the Fourth Circuit’s three exceptions34 to state sovereign immunity applied: There was no congressional abrogation because § 1983 does not abrogate state sovereign immunity,35 there was no evidence that Virginia had waived sovereign immunity,36 and the Ex parte Young exception was unavailable because Hunt sought “only retrospective declaratory” and monetary relief against the state judge.37
Finally, Judge Novak granted Richmond’s motion to dismiss.38 The court held that the two-year state statute of limitations for the § 1983 excessive force and failure to train and supervise claims had long since passed.39 Lacking any federal claim to adjudicate, the court dismissed the remaining Virginia Freedom of Information Act claim without prejudice.40
Hunt’s immunity reasoning implies a narrow method for suing state judges despite the doctrinal uncertainties raised by Whole Woman’s Health. Whole Woman’s Health’s twin effects of extending sovereign immunity to state judges and simultaneously doubting the applicability of the Ex parte Young exception to those judges provide a strong, new barrier to suing state judges. This new barrier is particularly daunting because it bars injunctive relief against judges41 and threatens to bar declaratory relief, both of which otherwise could bypass judicial immunity.42 In Hunt, the court barred retrospective declaratory relief.43 But Hunt may imply that a prospective declaratory relief claim could proceed.44 Such an action would avoid both judicial and sovereign immunity, notwithstanding the court “machinery” limitation on the Ex parte Young exception.45 Hunt thus provides the key both to avoiding the new hurdles raised by Whole Woman’s Health and to preserving some consistency with the Court’s repeated allowance of suits against judges.
Whole Woman’s Health’s twin immunity holdings tease out two particularly thorny doctrinal questions on the relationship between sovereign immunity and declaratory relief: first, whether the Ex parte Young exception to sovereign immunity includes declaratory relief in general; and second, whether Whole Woman’s Health’s reaffirmation of the court machinery limitation on the Ex parte Young exception applies to declaratory relief against state judges.
Declaratory relief and the Ex parte Young exception to sovereign immunity46 have a complicated relationship. The Court has not been uniform in articulating the outer boundaries of the exception: Some articulations include only injunctive relief,47 others, “declaratory and injunctive relief,”48 and others still apply it to prospective relief generally.49 Often figuring in the Ex parte Young calculus is whether, or to what extent, the order will have a direct effect on the state’s treasury.50 Declaratory relief, as having no direct effect on the state’s treasury, does not implicate this concern.51 This fact might suggest that all declaratory relief, as adding no burden to the state’s treasury, passes the sovereign immunity hurdle, but this position is hard to square with the Court’s insistence in Verizon Maryland Inc. v. Public Service Commission of Maryland52 that prospectivity is the criterion.53 Bolstering Verizon Maryland’s prospectivity approach, the Court in Green v. Mansour54 blocked a claim for a purely retrospective declaratory judgment,55 reasoning that such relief would constitute an “‘end run’ around [its] decision in Edelman v. Jordan.”56 And as a practical matter, in many of the cases before the Supreme Court, including Verizon Maryland, plaintiffs sought (and received under the Ex parte Young exception) both injunctive and declaratory relief, suggesting that the exception includes declaratory relief so long as it is prospective.57
Even if all prospective declaratory relief falls within the Ex parte Young exception, Whole Woman’s Health’s treatment of the court machinery limitation complicates the picture.58 Ex parte Young upheld the contempt of the Minnesota Attorney General by a federal court, which had enjoined him from instituting any criminal prosecutions under a newly passed but constitutionally suspect state statute.59 Explaining why this order did not violate the maxim that “a court of equity has no jurisdiction to enjoin criminal proceedings,”60 the Court reasoned that “the right to enjoin . . . a state official, from commencing suits under circumstances already stated, does not include the power to restrain . . . the machinery of a criminal court, and an injunction against a state court would be a violation of the whole scheme of our Government.”61 The majority in Whole Woman’s Health seized on this language to explain why the Ex parte Young exception applied only to “state executive officials.”62 The exception to sovereign immunity, the Court reasoned, did not reach to state court machinery at all, so judges and clerks presumably enjoyed this immunity.63
This court machinery doctrine can be read two ways. On the first, the doctrine excludes state judges from the Ex parte Young exception entirely, precluding all forms of relief against state judges, including prospective declaratory relief. On the second, the doctrine bars injunctions but not declaratory relief, since Ex parte Young identifies only injunctions against state courts as “a violation of the whole scheme of our Government.”64 Both readings are plausible. But only the latter approach leaves any room for suing state judges, as otherwise, sovereign immunity is practically insuperable.
Hunt, by indicating that the retrospective character of the declaratory relief barred the claim,65 implicitly took this second path. Judge Novak had multiple ways of handling Hunt’s claim: He could have latched on to the Fourth Circuit’s narrow definition of the Ex parte Young exception,66 or he could have used the court machinery doctrine to bar the suit entirely. Yet, following Verizon Maryland, he ruled on retrospectivity grounds.67 By preserving the possibility that prospective declaratory relief remains available in suits against state judges, this latter reading has the benefit of harmonizing Whole Woman’s Health with the Court’s cases allowing such suits without mention of sovereign immunity.68 It also allows some way to sue state judges in accordance with the plain text of § 1983.69
Supreme Court doctrine predating Whole Woman’s Health expressly permitted certain suits against state court judges under the doctrine of judicial immunity.70 Yet judicial immunity is notably absent from the analysis in the Hunt opinion,71 which would have squarely applied to the damages claims against the state judge.72 Less clear, however, is whether judicial immunity bars declaratory relief. The answer is probably no, for a few reasons. First, a declaratory judgment is not a suit for damages and thus outside the Court’s most recent articulations of the scope of judicial immunity.73 Second, the best Fourth Circuit precedent indicates that judicial immunity does not extend to declaratory judgments.74 In Pulliam v. Allen,75 the Supreme Court established that judicial immunity did not extend to suits for “prospective injunctive relief against a judicial officer acting in her judicial capacity.”76 And while the suit in Pulliam was for both declaratory and injunctive relief, the Court did not explicitly rule on the declaratory relief aspect of the suit.77 Pre-Pulliam, the Fourth Circuit had held that judicial immunity extended to neither injunctive nor declaratory relief.78 Since Pulliam affirmed the Fourth Circuit’s result on injunctive relief and was silent on declaratory relief, the Circuit’s declaratory relief holding remains good law.
Whole Woman’s Health did not formally abrogate Pulliam’s limits on judicial immunity. When presented with the apparent conflict, the Whole Woman’s Health Court distinguished Pulliam in two ways: first by arguing Pulliam dealt with “the distinct doctrine of judicial immunity,” and second by pointing out that the state judge was not enjoined from enforcing a statute, but from enforcing “a rule of her own creation.”79 The first argument fails, as no party raised sovereign immunity in Pulliam, likely because no one thought it applied. And the second argument makes a distinction with no difference under the Court’s reading of the court machinery limitation, since the problem is enjoining state courts at all, whether with regard to self-made bail rules or statutes.
Further, the Federal Courts Improvement Act of 199680 expressly allows declaratory suits against judges.81 This Act amended § 1983 to clarify that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”82 While the Act’s legislative history indicates a legislative intent to “restore[] the full scope of judicial immunity lost in Pulliam,”83 the amended text merely requires sequencing the relief sought. The text’s conditional restriction on injunctive relief expressly contemplates declaratory suits against judges, indicating that judicial immunity does not categorically bar them. Both Pulliam and the current text of § 1983 thus suggest that at least some suits against state judges should proceed — a suggestion that is consistent with Hunt’s implication that sovereign immunity may not bar prospective declaratory relief against state judges.
Hunt illustrates how the doctrinal changes in Whole Woman’s Health potentially close the courthouse doors to suits against state judges. But by at least implying that a declaratory suit could meet the Ex parte Young exception to sovereign immunity, it preserves a method for these suits that Whole Woman’s Health left ambiguous.