Amicus Curiae Brief — Calderon v. Ashmus

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, et al.,

Petitioners,

vs.

Troy A. ASHMUS, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

KENT S. SCHEIDEGGER*

CHRISTINE M. MURPHY

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

_ *Attorney of Record

n\ (\

QUESTIONS PRESENTED

The Court of Appeals in the present case affirmed an

injunction issued by the District Court, which forbade the state

Attorney General and other state officials from arguing, in

actions brought against them in other courts, their position on an

unsettled, debatable question regarding the interpretation of an

Act of Congress. This raises the following questions:

1. Is the assertion in a court of law of such an argument a

“violation of federal law” of the kind necessary to qualify for

the Ex parte Young exception to Eleventh Amendment immu-

nity?

2. Is the issuance of such an injunction a proper use of the

equitable powers of the court, or is it an abuse of discretion?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, et al.,

Petitioners,

VS.

Troy A. ASHMUS, et al.,

Respondents.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

Legal Foundation respectfully moves for leave to file the

accompanying brief amicus curiae in support of the petition in

this case. Counsel for petitioner has consented, but counsel for

respondent has withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient and reliable determination of guilt and

swift execution of punishment.

The injunction issued in the present case is an unprece-

dented intrusion upon the Attorney General’s ability to repre-

iV

sent the people of the state in courts of law. Such interference

is contrarv to the rights of victims and society which CJLF was

formed to advance.

For the foregoing reason, amicus requests leave to file its

brief.

November, 1997

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

SD BRINE 5 acc ocd cettslewdndbe Wee cecicnéuss i

SNEED oc kde ddaWinecececesccontadas iii

ED gcc scucduddénensbscesasedne iil

EE dK cicivin cope ceesaneosendes compe Vii

Gammmmary Of ects amd GOSS... wc ccccccccccccscccess l

ND 5 Su cs cccccccetassapestabies 3

RE web ac Gna da cdetidvedectsadeecbacndvencas 5

I

Ex parte Young has been, and should remain, limited

to injunctions against enforcement of unconstitutional

statutes and violations of federal law, neither of which

bens cocurved im thls COBO... wwe ccc cc cece cvecees 5

II

The injunction issued in this case was an unprecedented,

improper use of judicial power ..............6.0005: 8

ee Se GD coe cd ctewedadccevesscccver 9

B. Interference with executive discretion ......... 11

C. Interference with other cours ................ 12

By Ee Ms SED icin dvcccpennseucsssuees 13

il

Injunctive relief in the present case was neither necessary nor

sufficient to resolve the underlying uncertainty ....... 14

(v)

vi

A. Unnecessary intrusion .................055-

B. An ineffective solution.....................

Conclusion

vii

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 138 L. Ed. 2d 391,

SD CSc os Vc cebawee cnc é<os 0s 19

Ashmus v. Calderon, 935 F. Supp. 1048

PEED x 050s Socdbodue codebecctccs 2,3, 13,17

Baker v. General Motors Corp., 86 F. 3d 811

DGS Cidhhs 606s cenehe bh éeness cuncesece 9

Board of Liquidation v. McComb, 92 U. S. 531,

PLACE wistdnebescddsbodeccececececee 11

Booth v. Maryland, 112 F. 3d 139 (CA4 1997)..... 4,9, 19

Buckley v. Valeo, 424 U. S. 1, 46 L. Ed. 2d 659,

GED cheb ibaclepadbaets Sacccescese 10

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

SEE: ED 0 cGedsceduvinshss cdisecdess 16

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

Se NEUE i nanceumenddcctaschavawess 16

Cory v. White, 457 U. S. 5, 72 L. Ed. 2d 694, 102 S. Ct. 2325

Ss Sabb nodisep he dénalotedbdstgensethecss 7

Death Row Prisoners of Pennsylvania v. Ridge, 106 F. 3d 35

Se a whsasé-cdce en sdwssceusbbeians edd o<en 9

Deere v. Calderon, 890 F. Supp. 893 (CD Cal. 1995) .... 18

Doran v. Salem Inn, Inc., 422 U. S. 922, 45 L. Ed. 2d 648,

Se APOE apeh bios cdesevacrapecetes 19

Edelman v. Jordan, 415 U. S. 651, 39 L. Ed. 2d 662,

DEEN CEE wUismenecnescrtneeas osghes« 7

viii

Ex parte Watkins, 3 Pet. (28 U. S.) 193, 7 L. Ed. 650

CURED on accdcdpeen ceksunes (hadens cua adber es 4

Ex parte Watkins, 7 Pet. (32 U. S.) 568, 8 L. Ed. 786

EERE 06s 0vseds penton d bik eubkaresesstis 6s oad 4

Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441

CREED cacanteinduseeddecacthnd eterno 5, 6, 12

Firefighters Local Union No. 1784 v. Stotts, 467 U. S. 561,

81 L. Ed. 2d 483, 104 S. Ct. 2576 (1984) ............ 9

Hawks v. Hamill, 288 U. S. 52, 77 L. Ed. 610, 53 S. Ct. 240

(ODESD on o'dnvvcvonsecntscintcsddmaasaeaenirane i2

Hill v. Butterworth, 941 F. Supp. 1129 (ND Fla. 1997) ... 9

Idaho v. Coeur d’ Alene Tribe of Idaho, 138 L. Ed. 2d 438,

SEF Ge. Gs OED v.0'c bande deed dosatkeatanae 5

In re Chetwood, 165 U. S. 443, 41 L. Ed. 2d 782,

te te Bf. RR Re ry rt Fr ep ee rhe py 3

In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509,

Ree cde PEE 4.50 c suk iwiesaeteent eases 18

Lindh v. Murphy, 138 L. Ed. 2d 481, 117 S. Ct. 2059

SEE Ws abndnire oa cane mdash ocddkeaaeeiaau 11

Marbury v. Madison, | Cranch (5 U. S.) 137, 2 L. Ed. 60

SEUOR octane etd dheRaenrteeienseugl bhaaie ae 4,11

Morales v. Calderon, 85 F. 3d 1387 (CA9 1996) ....... 18

NAACP v. Meese, 615 F. Supp. 200

GG Ee HED oc vka Fierce hot deehseebouunes 9,10, 11

Ohio Civil Rights Comm’n v. Dayton Christian Schools,

Inc., 477 U. S. 619, 91 L. Ed. 2d 512, 106 S. Ct. 2718

GOUUED 0c ce¥aclsns ted dsiesteb caseuedrlaeenn ree 13

Ww en

ix

Papasan v. Allain, 478 U. S. 265, 92 L. Ed. 2d 209,

FO ae Es IED nce sos na celeb ecebicecd 96 ts 5

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) ... 5

People v. Ashmus, 54 Cal. 3d 932, 820 P. 2d 214(1991).. 2

People v. Gonzales, 20 Cal. 2d 165, 124 P. 2d 44(1942) .. 9

Perez v. Ledesma, 401 U. S. 82, 27 L. Ed. 2d 701,

I ines oa eat nits ol a Lake pe nee 0 on’ 9

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

131 L. Ed. 2d 328, 115 S. Ct. 1447(1995) .......... 20

Rea v. United States, 350 U. 8. 214, 100 L. Ed. 233,

Ee ee ae 9

Rizzo v. Goode, 423 U. S. 362, 46 L. Ed. 2d 561,

i Hea ucacdae cbs pb bssdencss 10, 12

Stefanelli v. Minard, 342 U.S. 117, 96 L. Ed. 138,

a Te eer yee eee 9

Steffel v. Thompson, 415 U. S. 452, 39 L. Ed. 2d 505,

Res CEU ober cvdecsasddvatponsete 13,14

Stein v. New York, 346 U. S. 156, 97 L. Ed. 1522,

Py EE bWd bh'whs Ube OES ber be cscene 19

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

ee EEE in i's bas idk based bes an o¥. 0-9 0.0 16

United States v. Dunnigan, 507 U. S. 87, 122 L. Ed. 2d 445,

i cede sin eteenhhe seesne 6

United States v. Mendoza, 464 U. S. 154, 78 L. Ed. 2d 379,

eh ED cna Set does op aaOU ans HO vic 10

Williams v. Florida, 399 U. S. 78, 26 L. Ed. 2d 446,

a une hveeveeubehavvednsevys 6

Wilson v. Lambert, 168 U. S. 611, 42 L. Ed. 599,

16S. Ce, ZIV GRED 0 os ow ev'ncesdeueanrenkins base 12

Worcester County Trust Co. v. Riley, 302 U. S. 292,

S2 L. Bd. 268, SBS. CR. IBS (EGSTZ) . cc ccccedescess 6,7

Younger v. Harris, 401 U. S. 37, 27 L. Ed. 2d 669,

OE BGR, FOR CRPRER oo acarcucecdhoresarkusasks 8,12

Zwickler v. Koota, 389 U. S. 241, 19 L. Ed. 2d 444,

OS ©. CL, FaU COs odie ep cd dle iuidecony tees: 13

Rule of Court

Seppamne Couit Tae TAGS cic « o-ccvcccncncdevunncesdan 8

United States Constitution

Ly. & Comst., AG. TE OP vee devevddeddévaccieteasten 10

United States Statutes

ae U. B.O..§ GS bcccccnstisedsscoverencaeual 20

ae U. GG. SAeee si cick entire dintigaw Gee 19

Se Un Ee . SRD a 6c ceubeadedvesseuastia 14, 16, 18

ae U.S. G. BGG yk iedn sth actcvatet cheer 8

ae WU. B. ©, BR ac wales cise cde ctdiscbebaent eden 16

Be th ©. G. GR o6icsdubsnen ctegverarndecenees 19

ae Ul: Bs Ga Ba 0-59 0b cdc tuscstncdveseo cin 19

Be Siete. CP > 0.5 60 chs suas cdn used eas 15, 16, 19

Bee. BC, CRO cacdevcbbv avant cosbesieveivetres 17

BO. B.C. GEBES cic cai civevetevcudeusbas cues 18

xi

Antiterrorism and Effective Death Penalty Act of 1996,

Is Tek Ms, a ae 3

State Constitution

As AR eed Sle hy eee Br vee ears 10

Say Ge, Seely Voll Oe cided oh cc Peabo Aavilvie 10

Treatise

16B C. Wright, A. Miller, & E. Cooper, Federal Practice &

ge Re Peer eee aye pac 19

Miscellaneous

California Supreme Court Policies Regarding Cases Arising

I oso as 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, et al.,

? Petitioners,

vs.

Troy A. ASHMUS, et al.

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

The present case began over 13 years ago.'

“Most of the basic facts [of Ashmus’ crime] were essen-

tially undisputed at trial.

“About 4 o’clock on the afternoon of Saturday, May 19,

1984, Marcella (Marcie) D., who was seven years of age, rode

to Howe Park in Sacramento on her bicycle. There she met

her brother Arby, age 10, who was responsible for her, and

Arby’s friend Ernesto (P.J.) G., age 9. Arby and P.J. walked

to a pond to fish from a dock, and Marcie went to play with

some children within a few feet of the boys.

“Defendant, who was 22 years old, approached Arby and

P.J. as they were fishing. For the past few days he had been

—

.

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

camping in an area in adjacent Santa Anita Park called

Stoner’s Pit, a site that was filled with litter but also secluded

and covered with vegetation. He gave the boys advice and

help in their fishing, and stayed nearby.

“About 5 or 5:30 p.m., Arby and PJ. walked to the park

clubhouse. Marcie soon rode up. She said that she was going

off to Santa Anita Park with defendant: he had told her that he

knew of a duck’s nest there, and that he would give her a

duckling if any had hatched. The boys said that she should

return in about an hour.

“Defendant and Marcie proceeded to Stoner’s Pit. Once

there, he subjected her to a fatal attack. He raped her and

perhaps also penetrated her with some foreign object, making

a very large tear through the length of her vagina to within a

quarter of an inch of her rectum. He sodomized her, inflicting

two small wounds in the anal or recta! tissue. He possibly

committed oral copulation by inserting his penis into her

mouth. He evidently ejaculated over her body. He stuffed

into her mouth and throat material including two plastic bags,

a piece of cellophane about six inches long and two to three

inches wide, and a pair of red shorts she had been wearing; the

bags were wedged side-by-side in separate tight wads deep in

her throat with the cellophane in between; the shorts were

tightly compressed within her mouth; the bags obstructed her

throat and caused her to die by asphyxiation. Covering her

naked body with a carpet remnant he had used for a sleeping

mat during his stay at Stoner’s Pit, he fled the scene.” People

v. Ashmus, 54 Cal. 3d 932, 952-953, 820 P. 2d 214, 222

(1991).

The jury found Ashmus guilty of rape, sodomy, lewd acts on

a child, and murder. It found true the “special circumstances” that

the murder was committed in the course of the three sex crimes,

making Ashmus eligible for capital punishment, and in the penalty

phase the jury returned a verdict of death. /d., at 952, 820 P. 2d,

at 222. The California Supreme Court affirmed in a thorough,

unanimous opinion by Justice Mosk, spanning 81 pages in the

official reports. /d. That was almost six years ago.

Ashmus filed an application for counsel and stay in federal

court on February 17, 1993. See Ashmus v. Calderon, 935

F. Supp. 1048, 1054, App. to Pet. for Cert. 26a-27a (ND Cal.

1996). The case has been in federal district court for over four

years now.

On April 24, 1996, the President signed the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214. Sections 101 through 106 of that Act

contain a number of reforms of general habeas law. Section 107

added Chapter 154 to U. S. Code Title 28, containing additional

reforms contingent upon the state adopting qualifying measures

regarding appointment of counsel.

The Attorney General of California, a defendant in the present

case, has taken the position that California qualifies for Chapter

154. Rather than litigate this question in his habeas proceeding,

Ashmus filed the present civil action, seeking declaratory and

injunctive relief. He filed that action April 24, the same day the

President signed the Act.

The District Court granted declaratory relief that Chapter 154

does not apply to California. 935 F. Supp., at 1075, App. to Pet.

for Cert. 76a. Further, the court granted injunctive relief:

“(D]efendants . . . ARE HEREBY RESTRAINED AND

ENJOINED from trying or seeking to obtain for the State of

California the benefits of the provisions of Chapter 154 of

Title 28, United States Code, in any state or federal proceed-

ing involving any class members.” /d., at 1076, App. to Pet.

for Cert. 78a-79a.’

The Court of Appeals affirmed, modifying the injunction only

slightly to allow state officials to argue that future changes may

qualify for Chapter 154. App. to Pet. for Cert. 21a.

SUMMARY OF ARGUMENT

The Eleventh Amendment precludes this suit, because an

essential element of the Ex parte Young exception is missing.

2. Interpreted literally, this injunction would even forbid the present certiorari

petition. Such an order would be void. See /n re Chetwood, 165 VU. S. 443,

461 (1897).

-_-

Defendants do not seek to enforce any unconstitutional statute,

and they have neither committed nor threatened any violation of

federal law. The mere assertion in a court of law of a good-faith

argument is not a “violation,” within the meaning of Young,

regardless of its effect on the plaintiff.

Even if the District Court did have jurisdiction, the issuance

of an injunction in this case was an improper exercise of equitable

power. To enjoin the Attorney General from asserting a good-

faith argument in other cases before other courts, which have been

filed against state officials, not by them, is a massive and unprece-

dented intrusion upon the discretionary responsibilities of an

executive officer. Further, the preliminary injunction was neither

necessary nor effective to resolve the uncertainty in the law. Only

a final judgment can do that.

ARGUMENT

The District Court in the present case issued an injunction of

breathtaking audacity. That order forbids officers of the state from

asserting a good-faith position on an important unsettled question

of law in other cases in other courts before other judges. These

other cases, furthermore, were not commenced by these officers,

but rather have been or will be brought against these officers, as

respondents, by the members of the plaintiff class.

Petitioners assert that the Eleventh Amendment precludes this

suit altogether. The argument on this point is ably presented in the

petition, in the Fourth Circuit's opinion in Booth v. Maryland, | 12

F. 3d 139 (1997), and in Maryland’s Brief in Opposition in that

case, No. 97-5623. Amicus will add only a brief argument in part

I. Yet even if the suit were not jurisdictionally precluded, the

question would remain whether this was a proper use of the

injunctive power. The existence of the power and the propriety of

its use are separate questions. Compare Marbury v. Madison, |

Cranch 137, 173, 176 (1803) (original mandamus would be proper

remedy, but Supreme Court had no jurisdiction to issue it) with Ex

parte Watkins, 3 Pet. 193, 208-209 (1830) and Ex parte Watkins,

7 Pet. 568, 572-574 (1833) (Supreme Court had jurisdiction to

issue Original habeas, but writ did not lie to attack final judgment).

That argument is presented in parts II and III.

I. Ex parte Young has been, and should remain,

limited to injunctions against enforcement of

unconstitutional statutes and violations of federal law,

neither of which has occurred in this case.

Under the Eleventh Amendment, a private party’s suit in federal

court “against state officials that is in fact a suit against a State is

barred regardless of whether it seeks damages or injunctive relief.”

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102

(1984). On its face, this principle would appear to preclude all

suits against state officers acting in their official capacities, since

“the State itself will have a continuing interest in the litigation

whenever state policies or procedures are at stake.” Jdaho v.

Coeur d'Alene Tribe of Idaho, 138 L. Ed. 2d 438, 448, 117 S. Ct.

2028, 2034 (1997).

The rule of Ex parte Young, 209 U.S. 123 (1908), permitting

such suits, is an exception. Coeur d'Alene, at 447, 117 S. Ct., at

2034. That exception “rests on a fictional distinction between the

official and the State.” /d., at 448, 117 S. Ct., at 2034. That

fiction does not extend to every prospective relief case. /bid. It

must be applied judiciously to “ensure that the doctrine of

sovereign immunity remains meaningful, while also giving

recognition to the need to prevent violations of federal law.” Jbid.

(emphasis added).

“In accordance with its original rationale, Young applies only

where the underlying authorization upon which the named official

acts is asserted to be illegal.” Papasan v. Allain, 478 U.S. 265,

277 (1986) (emphasis added). Even in Coeur d'Alene, where this

Court was deeply divided on other aspects of the Eleventh

Amendment, there was unanimity on this point. An essential

element of the Young exception is a violation of federal law. See

138 L. Ed. 2d, at 455, 117 S. Ct., at 2040 (majority) (“on-going

violation of federal law”); id., at 463-464, 117 S. Ct., at 2046

(O’Connor, J., concurring in part and concurring in the judgment)

(same); id., at 467, 117 S. Ct., at 2048 (Souter, J., dissenting)

(“The plaintiff must allege that the officers are acting in violation

of federal law . . .”).

The action proposed by the Attorney General which led to the

present case was to assert in a court of law a plausible, good-faith

argument regarding the interpretation of an Act of Congress.

Plaintiff contends, and the lower courts held, that this assertion

would have the practical effect of forcing them to forego certain

federal rights.’ But impact on the plaintiff is not the test. A legal

act is a legal act, and not a violation, even if it does have the effect

claimed. For example, a prosecutor who puts on a compelling

case of guilt may, as a practical matter, force a defendant to give

up his Fifth Amendment right and take the stand, but that effect

does not transform skilled advocacy into a constitutional violation.

See Williams v. Florida, 399 U. S. 78, 83-84 (1970). “Our

authorities do not impose a categorical ban on every governmental

action affecting the strategic decisions of an accused, including

decisions whether or not to exercise constitutional rights.” United

States v. Dunnigan, 507 U. S. 87, 96 (1993).

Young found the requisite violation in a stated intent to

commence prosecutions under an unconstitutional statute, even

though the constitutionality has not been previously determined.

See Young, supra, 209 U. S., at 160. That is something of a

stretch, but by this point it is well established in precedent. The

present question is whether that stretch should be further stretched

to cover a contention made in court where there is no question of

an unconstitutional statute or other illegality of the official’s

action. The answer to that question is also well established in

precedent. The answer is no.

Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937)

involved the taxes on the estate of a decedent whose state of

domicile was disputed. Massachusetts and California both

claimed him and the right to tax the intangibles of his estate. /d.,

at 294. Plaintiff, the administrator, filed an interpleader, ibid.,

claiming that the effect of the state officials’ actions threatened to

deprive the estate of its federal right against double taxation. /d.,

at 297-298.

The Court unanimously held the action barred by the Eleventh

Amendment, distinguishing Young. First, the state officials were

_- 3. Actually, it is not the Attorney General's assertion but the possibility he may be

right that has this effect. If the Attorney General's position were patently

wrong, and certain to be rejected by the courts, its assertion would be of little

or no concern to plaintiffs.

simply and properly seeking a judicial determination of whether

their position was correct, an act well within their official duties.

Id., at 298-299. Second, unlike Young and its progeny, “the

present suit is not founded on the asserted unconstitutionality of

any state statute and the consequent want of lawful authority for

official action taken under it.” Jd., at 300.

These principles apply with full force to the present case. The

Attorney General seeks to enforce the single most important law

the state has: the law which defines and punishes murder. To this

end, he must defend against habeas corpus actions which seek to

overturn valid judgments. The defense of such cases and the

choice of arguments to present falls squarely within his constitu-

tional responsibilities. There is no basis for asserting that he lacks

authority for his actions or seeks to enforce an unconstitutional

Statute.

Worcester County remains good law today. Cory v. White,

457 U. S. 85, 86 (1982) involved a similar dispute regarding the

estate of Howard Hughes. The Court of Appeals thought “that

Edelman v. Jordan, 415 U. S. 651 (1974) had silently, but

effectively, overruled Worcester,” id., at 88. Edelman did no

such thing. /d., at 90.

“Neither did Edelman deal with a suit naming a state

officer as defendant, but not alleging a violation of either

federal or state law. Thus, there was no occasion in the

opinion to cite or discuss the unanimous opinion in Worcester

that the Eleventh Amendment bars suits against state officers

unless they are alleged to be acting contrary to federal law or

against the authority of state law. Edelman did not hold that

suits against state officers who are not alleged to be acting

against federal or state law are permissible under the Eleventh

Amencment if only prospective relief is sought. Whether or

not that would be the preferable rule, Edelman v. Jordan did

not adopt it.

“Furthermore, if that were to be the law, Worcester must

in major part be overruled. We are unwilling, however, to

overrule that decision and narrow the scope of the Eleventh

Amendment to the extent that action would entail.” /d., at 91

(emphasis added).

For the Attorney General of California to argue to a federal

court that California qualifies for Chapter 154 of Title 28, United

States Code is not, by any stretch of the imagination, a violation

of any law, state or federal. The Ex parte Young exception is

inapplicable. The Eleventh Amendment bars this action against

state officials acting in their official capacity.

In a habeas corpus action, the habeas petitioner does allege a

violation of federal law. He alleges that he is being held in

custody in violation of the Constitution, laws, or treaties of the

United States. The federal habeas court cannot grant relief on any

other basis. 28 U. S. C. §2254(a). Hence, habeas cases always

cualify for the Ex parte Young exception.

The underlying question need only be resolved in one such

case. If the habeas petitioner prevails and California is held not to

qualify, the final judgment in that case would settle the question,

as much as it can be settled, by stare decisis. See part III B, infra,

at 14-20. There is, therefore, no need to further stretch the already

strained fiction of Ex parte Young.

Il. The injunction issued in this case was an unprecedented,

improper use of judicial power.

Review on writ of certiorari is appropriate when “a United

States court of appeals . . . has so far departed from the accepted

and usual course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of this Court's

supervisory power ....” Supreme Court Rule 10(a). For the

reasons that follow, amicus CJLF submits that the injunction

issued by the District Court, and its affirmance by the Court of

Appeals, are prime examples of such departure.

There is a large body of case law dealing with requests for

injunctions forbidding an official from commencing or prosecut-

ing a suit in another court on the ground that the statute or

ordinance sought to be enforced is unconstitutional. See, e.g.,

Younger v. Harris, 401 U. S. 37, 39 (1971). A smaller body of

case law deals with requests for injunctions to prevent a party or

witness from presenting evidence wrongfully obtained in another

court. These cases generally hold such injunctions to be improper.

See, e.g., Perez v. Ledesma, 401 U. S. 82, 84-85 (1971); Stefanelli

v. Minard, 342 U.S. 117, 122-123 (1951); People v. Gonzales, 20

Cal. 2d 165, 171, 124 P. 2d 44, 47 (1942) (Traynor, J.); but see

Rea v. United States, :*? U.S. 214, 217 (1956); see also Baker v.

General Motors Corp., 86 F. 3d 811, 818-820 (CA8 1996), cert.

granted No. 96-653 (argued Oct. 15, 1997).

The present case is a large step further removed. The state

officials have done nothing wrong. They are respondents in

actions commenced against them and have an honest, good-faith

argument to make on an unsettled question of law. Yet they are

forbidden to make it. Except for the other AEDPA cases, there

~ ; to be no precedent for such an injunction in American

w.

A. NAACP v. Meese.

The closest case amicus has found is NAACP v. Meese, 615

F. Supp. 200 (DC DC 1985). That case arose in the aftermath of

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984),

a case involving racially-based layoffs by a fire department under

a consent decree. Attorney General Meese had “a far different and

broader interpretation” of Stotts than the NAACP, Meese, 615

F. Supp., at 201, so that organization sought an order

“enjoining the Attorney General and his subordinates from

reopening, causing to be reopened, or consenting to the

reopening of any decree in an action brought by the govern-

ment under Title VII of the Civil Rights Act of 1964, as

amended, on the basis that such decree contains goals,

timetables, numerical remedies, or other relief for persons not

4. Three other District Courts have issued such injunctions on the same point.

One has been reversed outright. Booth v. Maryland, 112 F. 3d 139, 146 (CA4

1997) (Eleventh Amendment). One case has been resolved without addressing

the injunction, Death Row Prisoners of Pennsylvania v. Ridge, 106 F. 3d 35,

36 (CA3 1997) (noting Eleventh Amendment problem; Commonwealth's

statement that Pennsylvania does not qualify is sufficient for underlying action

to be “resolved and terminated”), thus implying that the injunction was

unnecessary. The third is still pending. Hill v. Butterworth, 941 F. Supp. 1129

(ND Fla. 4996), appeal pending.

10

proven to be ‘actual victims’ of discrimination ....” Jbid.

(footnotes omitted).

The wisdom, restraint, and discretion exercised by Judge

Greene in NAACP v. Meese stands in sharp contrast to the attitude

displayed by the District Court and the Court of Appeals majority

in the present case.

“[T]wo fundamental principles of law so clearly stand as

obstacles to the grant of relief by the Court that none of the

other issues is open for consideration. Plaintiff's action must

fail (1) under the principle of the separation of powers, and (2)

because this Court lacks authority to interfere with or to seek

to guide litigation in other district courts throughout the

United States.” /d., at 202.

On the first point, Judge Greene noted that any attempt by the

judiciary to dictate what positions the executive could present to

the courts would be an interference with a duty expressly assigned

by the Constitution to the executive branch, to “take Care that the

Laws be faithfully executed.” Jbid. (quoting U. S. Const., Art. Il,

§ 3; United States v. Mendoza, 464 U.S. 154, 161 (1984); Buckley

v. Valeo, 424 U.S. 1, 138 (1976)).

Defendants in the present case have substantially the same

constitutional duty. Cal. Const., Art. V, §§ 1, 13. The structural

concerns are even greater in the present case, because the interfer-

ence breaches both the judicial/executive boundary and the

federal/state boundary. See Rizzo v. Goode, 423 U. S. 362, 378-

379 (1976).

The second reason for denying injunctive relief in NAACP v.

Meese was that “{a]ny such order would, of course, directly affect

the course of the litigation in [other] courts, and it would, indeed,

interfere directly with their jurisdiction over the lawsuits.” 615

F. Supp., at 204. Principles of comity and the availability of relief

in the other court required denial of the requested injunction. /d.,

at 205.

“One of the basic principles, one of the glories, of the

American system of justice is that the courthouse door is open

to everyone—the humblest citizen, the indigent, the convicted

felon, the illegal alien. To close that door to the Attorney

General by prohibiting him from filing in any federal court of

the land pleadings expressive of the position of the Executive

Branch with respect to Title VII lawsuits in which that Branch

has a legal interest would be an extraordinary step indeed.

“Not only is there no precedent in any of the decided cases

for such an invasion by a district court into the Executive's

prosecutorial discretion—or for the resulting interference with

the authority of other federal courts to deal with litigation

pending before them as they see fit—but basic jurisprudential

principles affirmatively prohibit such an action. It may well

be that plaintiffs are correct in their interpretation of Stotts,

but the Supreme Court's opinion in that case is sufficiently

Delphic that a contrary construction cannot with certainty be

ruled out.” /d., at 205-206 (footnotes omitted),

The statute at issue in the present case could also be described

as “Delphic,” or in even less charitable terms. See Lindh v.

Murphy, 138 L. Ed. 2d 481, 494, 117 S. Ct. 2059, 2068 (1997).

The terms for states to qualify for Chapter 154 are well within the

bounds of reasonable disagreement among lawyers and judges.

The fact that Congress took care to include an express retroactivity

clause in Chapter 154, see id., at 488-489, 117 S. Ct., at 2063,

indicates that Congress thought some states would qualify based

on existing systems, and if California does not it is difficult to see

that any state does.

Although no opinion of this Court comes as close to the

present case as NAACP vy. Meese, supra, the elements of that

decision can be found in numerous cases. These cases establish

that a court of equity should generally refrain from interfering with

either the discretionary acts of the executive or with the progress

of a case properly before another court.

B. Interference with Executive Discretion.

The reluctance of courts of equity to interfere with discretion-

ary acts of the executive goes back to the earliest cases. In

Marbury v. Madison, | Cranch 137, 170-171 (1803), Chief Justice

Marshall noted that the writ of mandamus would not lie if the act

sought was discretionary with the executive officer. In this sense,

mandamus and injunction are “somewhat correlative,” Board of

Liquidation v. McComb, 92 U.S. 531, 541 (1876), and the same

rule applies.

12

“Caution and reluctance there must be ‘n special measure

where relief, if granted, is an interference by the process of

injunction with the activities of state officers discharging in

good faith their supposed official duties. In such circum-

stances this court has said that an injunction ought not to issue

‘unless in a case reasonably free from doubt.’ Massachusetts

State Grange v. Benton, 272 U. S. 525, 527. The rule has

been characterized as an ‘important’ one, to be ‘very strictly

observed.’ 272 U. S., at 527, 529.” Hawks v. Hamill, 288

U. S. 52, 60 (1933).

Indeed, even Ex parte Young, 209 U. S. 123 (1908) reiterated

the long-standing rule on the impropriety of restraining discretion-

ary executive acts. /d., at 158-159. To justify an injunction in the

case before it, Young held that there is no discretion to enforce a

statute which is unconstitutional and void. /bid. The present case,

by contrast, involves a statute which is clearly constitutional, and

the only issue is its interpretation. The decision as to which good-

faith arguments to present to courts of law goes to the very core of

the discretionary responsibility of the state’s chief attorney.

Even within a unitary system, courts should avoid interference

with a decision vested in the executive branch. Rizzo v. Goode,

423 U. S. 362, 378-379 (1976). When the interference crosses the

federal/state line, this principle applies with even greater force.

Id., at 379. This principle was ignored in the present case.

C. Interference with Other Courts.

Most of the cases on interference with other courts deal with

federal injunctions against state court proceedings. This is

probably the result of the relative frequency of the requests for

such relief. Few litigants are motivated to ask one federal court to

enjoin proceedings in another. Even so, the Younger v. Harris,

401 U. S. 37 (1971) line of cases sheds light on the present

problem, because that doctrine is based on general principles of

equity as well as federalism.

The general rule of equity is an old one. “There can be no

reason or propriety in appealing to a court of equity to restrain

proceedings that are being conducted in other courts, competent

to construe the statutes under which they act, and to decide every

question that may arise in the course of the proceeding.” Wilson

13

v. Lambert, 168 U. S. 611, 618 (1898). The Younger line is based

on this principle, as well as on federal/state comity. Ohio Civil

Rights Comm'n vy. Dayton Christian Schools, Inc., 477 U. S. 619,

627 (1986). It is not limited to criminal proceedings. Jbid.

The District Court in the present case acknowledged that its

“decision may constrain the ability of other co-equal district court

judges to decide the issue differently.” Ashmus v. Calderon, 935

F. Supp. 1048, 1068, App. to Pet. for Cert. 59a-60a (ND Cal.

1997). Yet it considered this question only under the discussion

of declaratory relief and class certification and did not reconsider

it when discussing the vastly greater intrusion of injunction. Cf.

id., at 1075-1076, App. to Pet. for Cert. 77a-78a. That is where

the true interference lies, and that is where centuries-old principles

of equity caution restraint. Instead of correcting this error, the

Court of Appeals brushed off the declaratory relief/injunction

distinction in two sentences. App. to Pet. for Cert. 20a.

D. Steffel v. Thompson.

In deciding that the plaintiffs had stated a cause of action, the

District Court relied heavily on Steffel v. Thompson, 415 U.S. 452

(1974). Ashmus, 935 F. Supp., at 1062-1063, App. to Pet. for

Cert. 44a-48a. On the question of whether an injunction is proper,

however, Steffel points in exactly the opposite direction. The

essence of that case is that declaratory relief, and not injunction,

is the preferred way to resolve these kinds of uncertainties in the

law.

Tracing the history of the Declaratory Judgment Act, Steffel

found that “Congress plainly intended declaratory relief to act as

an alternative to the strong medicine of the injunction ....” 415

U. S., at 466 (emphasis added). Steffel also relied on the earlier

decision in Zwickler v. Koota, 389 U. S. 241, 254 (1967), which

held that it was “error” to consider the two forms of relief “as a

single question.” Steffel, 415 U. S., at 468. Such an approach

“would defy Congress’ intent to make declaratory relief available

in cases where an injunction would be inappropriate.” Jd., at 471.

The present case is the converse of Steffel. Both courts

below found that declaratory relief was appropriate and then

blithely tagged on an unprecedented, massively intrusive injunc-

tion without pausing to consider the weighty prudential consider-

14

ations that ought to go into such a decision. Under Steffel, this is

error.

III. Injunctive relief in the present case was

neither necessary nor sufficient to resolve the underlying

uncertainty.

The principal requirement for a preliminary injunction, as

distinct from other forms of relief, is a showing of irreparable

injury. See Steffel v. Thompson, 415 U. S. 452, 471-472 (1974).

Naturally, the injury must be one that the injunction is capable of

preventing, or else there would be no point in issuing it. An

injunction should only issue, then, when it is both necessary and

effective. In the present case it is neither.

A. Unnecessary Intrusion.

In part Il, we described how this injunction is a massive

intrusion on the constitutional responsibilities of state officers. In

this part, we will explain why it was unnecessary.

The Antiterrorism and Effective Death Penalty Act contains

two limitations on the filing of habeas corpus petitions. New

subdivision (d) of 28 U. S. C. §2244 provides:

“(d)(1) A 1-year period of limitation shall apply to an applica-

tion for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation

period shall run from the latest of—

“(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of the

time for seeking such review;

“(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

“(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the right

has been newly recognized by the Supreme Court and

15

made retroactively applicable to cases on collateral

review; or

“(D) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

“(2) The time during which a properly filed application for

State post-conviction or other collateral review with respect to

the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this subsec-

tion.”

For states qualifying for chapter 154, new section 2263

provides this limitation:

“(a) Any application under this chapter for habeas corpus

relief under section 2254 must be filed in the appropriate

district court not later than 180 days after final State court

affirmance of the conviction and sentence on direct review or

the expiration of the time for seeking such review.

“(b) The time requirements established by subsection (a)

shall be tolled—

“(1) from the date that a petition for certiorari is

filed in the Supreme Court until the date of final

disposition of the petition if a State prisoner files the

petition to secure review by the Supreme Court of the

affirmance of a capital sentence on direct review by

the court of last resort of the State or other final State

court decision on direct review;

“(2) from the date on which the first petition for

post-conviction review or other collateral relief is

filed until the final State court disposition of such

petition; and

“(3) during an additional period not to exceed 30

days, if—

“(A) a motion for an extension of time is filed

in the Federal district court that would have

jurisdiction over the case upon the filing of a

habeas corpus application under section 2254; and

16

“(B) a showing of good cause is made for the

failure to file the habeas corpus application within

the time period established by this section.

In addition to the length, six months versus a year, the

limitations differ in their treatment of the time to petition for

certiorari. In section 2263(a), the clock starts on final affirmance

in state court, but then is tolled under subdivision (b)(1) when the

certiorari petition is actually filed. A petitioner who used his full

90 days to prepare the certiorari petition would have used half of

his 180 days. Of course, since certiorari is not part of the exhaus-

tion requirement, Stone v. Powell, 428 U. S. 465, 495, n. 38

(1976), there is no reason the certiorari and habeas petitions

cannot be prepared at the same time.

Section 2244(d)(1)(A) starts the clock at the conclusion of

“direct review” without specifying the state court decision. This

omission, plus the reference to the judgment becoming final,

appears to be an adoption of the rule for Teague finality, i.e.,

denial of certiorari by this Court or the expiration of time to seek

it. Cf. Caspari v. Bohlen, 510 U. S. 383, 390-391 (1994). Thus,

the noncapital petitioner, or the capital petitioner in a nonqualify-

ing state, could have up to nine months longer to file his petition.”

Congress had a good reason for creating different rules.

Habeas petitioners have no constitutional right to counsel in state

habeas, not even in capital cases. Coleman v. Thompson, 501

U. S. 722, 756-757 (1991). Chapter 154 only applies to inmates

who have been provided counsel on state habeas. The fact that the

petitioner has already had one attorney-prepared habeas petition

makes an enormous difference in preparing the second.

In a traditional post-conviction review system, where habeas

follows direct appeal and where a different attorney must be

appointed for that procedure, see 28 U. S. C. §2261(d), an

unrepresented inmate’s time under section 2263 could conceivably

be running while he awaited appointment of state habeas counsel.

5. The difference will be smaller if a state habeas petition is pending during all or

part of the gap between the decision on direct appeal and the filing of the

certiorari petition. See 28 U. S. C. § 2263(b)(2) (tolling during pendency of

state habeas).

17

That possibility need not concern the Court in this case, however,

as California seeks only to qualify under “unitary review.”

As the District Court recognized, a system of “unitary review”

does not necessarily mean a single consolidated proceeding.

Under California’s present system, state habeas is conducted

during the pendency of the direct appeal, and this is sufficient to

constitute “unitary review” within the meaning of 28 U. S. C.

§ 2265. Ashmus v. Calderon, 935 F. Supp. 1048, 1070, App. to

Pet. for Cert. 65a (ND Cal. 1997). The attorney appointed to

represent the defendant on direct appeal is also responsible for the

habeas petition, and it is due 90 days after completion of the

appellate briefing. See California Supreme Court Policies

Regarding Cases Arising from Judgments of Death, App. to Pet.

for Cert. 94a.

Under this system, then, every death row inmate has an

attorney appointed to represent him on state habeas before the

clock ever begins to run under 28 U. S. C. §2263. If the attorney

files the petition within the required time, again before the clock

begins, the clock will not start until the California Supreme Court

has decided that petition.

The injury cited by the Court of Appeals is the possibility of

an unrepresented petitioner being forced to file a “bare bones”

petition in order to meet the limitation period of section 2263.°

App. to Pet. for Cert. 10a. This statement overlooks the fact that

federal habeas for California capital prisoners reviews fully

completed litigation. Before the clock ever starts, petitioner has

already had state habeas and appellate counsel appointed. He has

already had an opportunity to present every cognizable claim to a

competent court. He has already had a decision on them. The

claims are set forth in the state pleadings and need only be recast

into the form of a federal petition. Six months is more than

enough time for the federal court to appoint counsel and for that

counsel to file a meaty petition, not a “bare bones” one.

6. This statement appears in the Eleventh Amendment analysis. The court's two-

sentence discussion of propriety of injunctive relief makes no mention of the

irreparable injury requirement. See App. to Pet. for Cert. | 4a.

18

If, for any reason, counsel could not be appointed within six

months, reasonable accommodation for an indigent, unrepresented

petitioner would seem to allow him to simply attach the state

pleadings and assert all federal claims in them. Claims omitted

from the appeal and first state habeas are generally procedurally

barred. See Jn re Clark, 5 Cal. 4th 750, 765, 770, 855 P. 2d 729,

738 (1993); Deere v. Calderon, 890 F. Supp. 893, 895 (CD Cal.

1995) (Clark rule is enforceable bar).’ The few additional claims,

if any, that would be cognizable on federal habeas can be added

by amendment to the petition.

The Court of Appeals noted that 28 U. S. C. § 2266(b)(3)(B)

in Chapter 154 limits amendments to the petition, and that a

District Court which holds that California qualifies for Chapter

154 might not allow amendment. App. to Pet. for Cert. 16a. Such

a decision, if erroneous, is not irreparable. If the ultimate decision

is that California does not qualify, a holding under Chapter 154

would be reversed. If the ultimate reso! ution is that California

does qualify, the petitioner has not lost anything to which he was

entitled.

Thus, even if the Attorney General’s so-called “threats” were

the source of uncertainty, the danger of irremediable injury

flowing from that uncertainty is exaggerated in the opinions

below. The massive, unprecedented intrusion of the injunction

issued in this case was unnecessary and hence improper.

B. An Ineffective Solution.

The uncertainty in this case does not spring from any asser-

tions by the state officials. The uncertainty comes from the law

itself. The preliminary injunction issued in this case, therefore,

does nothing to resolve the underlying question.

If the state qualifies for Chapter 154 of Title 28, then the

habeas petition must be filed within 180 days, unless the criteria

7. There is contrary (and, amicus believes, wrongly decided) Ninth Circuit

authority for pre-Clark cases. See Morales v. Calderon, 85 F. 3d 1387, 1393

(1996), cert. denied 136 L. Ed. 2d 391, 117 S. Ct. 500 (1996). Most, if not all,

such cases have since met or defaulted the one-year limitation of 28 U. S. C.

§ 2244(d). There is clearly no need for injunctive relief in such cases, since the

“gap” period where section 2263 makes a difference is already past.

19

for successive petitions are met. 28 U. S. C. §§ 2263, 2262(b)(1),

2262(c). This rule is undeniably mandatory. By declaring that

“no Federal court thereafter shall have the authority to enter a stay

of execution,” id., at §2262(c) (emphasis added), Congress has

made clear that these limits are jurisdictional.

A preliminary injunction, even when affirmed on appeal, is

not res judicata. See 16B C. Wright, A. Miller, & E. Cooper,

Federal Practice & Procedure § 4009, p. 157 (2d ed. 1996). Even

a “permanent” injunction can be lifted if the precedent on which

it is based “is no longer good law.” Agostini v. Felton, 138

L. Ed. 2d 391, 410, 117 S. Ct. 1997, 2016 (1997). Notwith-

standing the injunction issued in this case, then, if this Court or the

Ninth Circuit en banc should later decide that California does

qualify for Chapter 154, all pending petitions filed out of time

would have to be dismissed, unless they qualify for an exception.

Petitioners in such cases might argue that the state had

defaulted the limitation defense by not raising it in the answers to

their respective petitions. A more egregious denial of due process

of law could scarcely be imagined than to enjoin a party from

asserting a valid defense and then declare him in default for

obeying the injunction. The people, as well as the defendant, are

entitled to due process of law. Stein v. New York, 346 U. S. 156,

197 (1953), overruled on other grounds in Jackson v. Denno, 378

U. S. 368, 391 (1964).

If California does, in reality, qualify, then it has a right granted

by Congress to have the issues joined within 180 days. For a court

to strip the state of its Congressionally conferred rights through a

forced default would raise grave questions of separation of

powers. The state must be permitted to assert its valid defense at

the first opportunity.

The uncertainty can only be resolved by a final judgment. If

the Fourth Circuit is right, the issue must be resolved within a

habeas proceeding. Booth v. Maryland, 112 F. 3d 139, 145-146

(CA4 1997), cert. pending No. 97-5623. Federal courts can issue

declaratory judgments in cases within their jurisdiction. 28

U.S.C. §2201.

Unlike a preliminary injunction, a declaratory judgment gives

relief only when it is final. Doran v. Salem Inn, Inc., 422 U. S.

922, 931 (1975). In the context of the present case, though, the

interim relief of the injunction is illusory. See Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 214 (1995) (new precedent on statute

of limitation resulted in dismissal of pending cases).

The declaratory relief portion of the District Court’s decision

is not before this Court. The Court of Appeals held it had no

jurisdiction over that aspect of the case, because it was not yet

final. App. to Pet. for Cert. 8a.* Petitioners have not challenged

that holding. The only issues, then, are the jurisdiction to issue the

injunctions and the propriety of issuing it. The injunction in this

case was unprecedented, intrusive, unnecessary, ineffective, and

improper. Its issuance was a gross abuse of discretion, calling for

an exercise of this Court’s supervisory power.

CONCLUSION

The petition for writ of certiorari should be granted.

November, 1997

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

8. To expedite resotution of this issue, the District Court could certify it for

appeal. 28 U.S. C. § 1292(b).