Snoeck

Opinion by Judge HARLINGTON WOOD, JR.; Dissent by Judge TASHIMA.

Plaintiffs, Arthur Snoeck and John Wheeler, in 1996 filed individual complaints with the Nevada Commission on Judicial Discipline alleging certain improper acts had been committed by two sitting Nevada judges. Dissatisfied with the Commission’s proce *985 dures and restrictions they filed this suit against the Commission members in their official capacities as well as the Executive Director of the Commission. The Commission itself was not named a party, although for convenience we refer to the defendants collectively as the Commission. The Commission is comprised of two judges, two attorneys, and three laypersons, and it employs an executive director, all defendants in this case.

Plaintiffs allege that their common problem arose because of the confidentiality restrictions imposed on them by the Commission. Their judicial complaints were filed on a Commission form. In requesting a judicial investigation each plaintiff was required to subscribe to the following statements which appeared on the complaint form:

The reverse side of the form described that confidentiality requirement:

The confidentiality requirement…

dissenting:

Ninety years after Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), it is surprising to learn that plaintiffs in federal court cannot sue the members of an administrative agency with prosecutorial functions, such as the Nevada Commission on Judicial Discipline (Commission), in order to bypass Eleventh Amendment immunity, but must sue the state court (or its judges) that would actually impose the punishment for a violation of the challenged statute or regulation. In every case following Ex Parte Young, it always is true that (as here) the officer named as a defendant “does not have the power [to punish] and does not claim to have that power.” Maj. op. at 987.

In the typical Ex Parte Young case, the defendant is usually a state or county prosecutor who, in the majority’s terms, lacks the ability to enforce the statute under question in the sense of having the power to mete out punishment for its violation. That is the function of the courts. The prosecutor also does not write the statute she or he is enforcing; that is the function of the legislature. Yet, in this case, the majority insists that the members of the Commission are not proper Ex Parte…