CALDERON v. ASHMUS

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Argument of Ronald S. Matthias

Chief Justice Rehnquist: We'll hear argument next in Number 97-391, Arthur Calderon v. Troy Ashmus.

Spectators are admonished, do not talk until you get out of the courtroom.

The Court remains in session.

Mr. Matthias, you may proceed whenever you're ready.

Mr. Matthias: Mr. Chief Justice, and may it please the Court:

This suit was initiated by a California death row inmate to prevent State officials from claiming in habeas cases that California is a Chapter 154 qualifying jurisdiction.

The principal issue before this Court is a threshold question.

That question is whether this suit is barred by the Eleventh Amendment or, alternatively, whether it qualifies or is authorized under the ex parte Young exception to the Eleventh Amendment.

Unknown Speaker: Mr. Matthias, do you think this suit could have been brought as a class action in a State court in California?

Mr. Matthias: As a declaratory judgment?

Unknown Speaker: Yes.

Mr. Matthias: There is a... Your Honor, there is a provision of California law for declaratory judgments.

I'm not intimately familiar with the provisions of that.

Unknown Speaker: Well, I'm just wondering what the alternatives might have been.

You're objecting because the suit was filed in Federal court, but presumably had it been filed this same kind of issue and demand in State court, it would be all right as far as you're concerned.

Mr. Matthias: Well, I'm not sure that the State courts would have thought themselves to be an appropriate forum for entertaining the question insofar as the issue of 154 compliance or not only has significance for--

Unknown Speaker: Well, a State court can decide that just as well as a Federal court, couldn't it?

Mr. Matthias: --Certainly I'm convinced that a State court could read the Federal statute, interpret it, and would be actually in a better position to understand the issue at least insofar as the 154 compliance question--

Unknown Speaker: Well, as a practical matter it makes a lot of sense to have the whole issue resolved and not do it case-by-case in every separate Federal habeas petition that's filed.

I mean, that makes some sense, I would think, from the standpoint of the State as well as the defendants.

Mr. Matthias: --It does make some sense.

It also makes some sense to allow issues to percolate, especially an issue as difficult as this one has evidently proved for many Federal courts.

Obviously not Federal courts within California, because in fact only one Federal court has been allowed, has allowed itself, effectively, to consider this question, but I certainly don't dispute that there is some economy in somehow aggregating these issues, and there are procedures for that.

Your Honor's suggestion about perhaps going to State court at least on some of the subissues that will turn critically on questions of State--

Unknown Speaker: Not just the subissues, the whole thing.

Mr. Matthias: --That, too, might have been available.

Unknown Speaker: Did... has California complied... by the way, has California adopted a statute in the interim, since we took this--

Mr. Matthias: Yes.

There was a change in the law the effect of which... the effective date of which is January 1 of this year, and a handful, and I think three to five death row inmates have since had their counsel appointed under that new procedure and, theoretically, when they finish their State proceeding in however many years that takes, and they then move to Federal court if that proves necessary, then the issue of Chapter 154 compliance at/or... I should say, the issue of Chapter 154 applicability to their Federal habeas proceedings will then turn on what we call the new law.

I will indicate, though, that obviously the vast majority of the class is utterly unaffected.

Unknown Speaker: --Now, you're arguing, Mr. Matthias, that the Eleventh Amendment bars this proceeding.

There are a number of State officials joined.

Was the State of California also joined?

Mr. Matthias: No.

The State itself was never named as a defendant formally.

Unknown Speaker: And so you're arguing this is not an appropriate ex parte Young situation, I guess.

Mr. Matthias: Precisely.

Unknown Speaker: And who were the State officials who were joined?

Mr. Matthias: It's two wardens.

It's the warden at San Quentin, where the men's death row is housed.

Unknown Speaker: Were the wardens going around making contentions about what California had done by way of providing counsel?

Mr. Matthias: To my knowledge the wardens had never breathed a word on the subject of 154--

Unknown Speaker: Was there an allegation in the complaint that the wardens had made these contentions?

Mr. Matthias: --No.

There was an allegation in the complaint, I think generically, and I think the theory here was that insofar as the Warden Calderon and Warden Farmon would be the named defendants in any habeas proceeding, they would be the ones who would be urging Federal courts to apply chapter 154.

And the Attorney General of the State of California, approximately 1 year before the AEDPA passed, testified before the Senate Judiciary Committee praised the AEDPA and expressed the view that it would work very well in California insofar as it took account of California's unitary review procedure where collateral claims and direct appeal claims can be processed at or about the same time.

They're on a roughly parallel temporal track, and those comments--

Unknown Speaker: And he's a defendant, the Attorney General's a defendant?

Mr. Matthias: --Yes.

The Attorney General himself is a defendant and as I read the complaint the sole wrongful conduct attributed to the Attorney General in this case were his statements to the Senate expressing approval of the AEDPA and expressing rather optimistically the hope that it would work well in California.

Unknown Speaker: Are you suggesting by what you just said that California's position really is kind of iffy, non-final on this matter of whether the State complies with 154, because I thought that the lawsuit was premised on the idea that California has said yes, we make it, we fit under 154, but now you seem to be saying something that would... doesn't even get us to something fancy like the Eleventh Amendment, that California really hasn't taken a firm position.

Mr. Matthias: Well, California officials certainly spoke to the issue publicly.

We had precious little chance to actually advocate this position in the context of any actual pending habeas proceeding because Mr. Ashmus filed his lawsuit about 4 hours after the AED--

Unknown Speaker: Well, what is California's position right now, yes we fit, or maybe we fit, we hope we fit?

Mr. Matthias: --No, it's not maybe.

We believe firmly that we have qualified under the provisions of Chapter 154 since June of 1989.

We have since that time regularly appointed counsel to represent death row inmates--

Unknown Speaker: So now you're backing off from what you said before.

It was suggested to me that you were saying, it's still iffy, he just made that one statement or two statements, and he was under pressure and all that, so--

Mr. Matthias: --Your Honor, I didn't say he was under pressure.

I was simply describing what the allegation was in the petition.

What was the alleged wrongdoing--

Unknown Speaker: --But now you say, forget all that, yes we have crossed swords here, we are saying we've made a final decision, we comply, is that--

Mr. Matthias: --We believe we have complied, and I think--

Unknown Speaker: --You say you've complied, but you didn't say you had complied earlier.

You're saying at the time this complaint was filed there was no... no evidence that you had... that the State had taken a firm position we were in compliance.

Mr. Matthias: --That's correct.

We had made... there had been State officials who had made statements to the media, there were State officials who had testified before Congress and expressed the view that we had complied.

Unknown Speaker: So when did you join issue on this point?

Mr. Matthias: During the litigation I think it became clear that the plaintiffs had correctly anticipated our position.

They understood, anticipated that we would take the position that we are a Chapter 154--

Unknown Speaker: So a plaintiff is predicting what a defense would be, and then the defendant says, yes, that's our defense, and that's the basis for a lawsuit?

Mr. Matthias: --That appears to be the basis for this lawsuit.

Yes, Your Honor, that appears to be the basis for this lawsuit, and I frankly don't think it matters whether or not we had managed to somehow get ourselves into a courtroom and assert to the Federal district court judge, Your Honor, we believe this new law applies, or if we hadn't.

Either way, our role in Federal habeas corpus is purely adversarial.

It's not within our power to command the application of the AEDPA.

If the AEDPA would be applied to any California inmate wrongly because we're not in compliance, that would be a Federal judicial error, if it's anything.

We are not in a position to violate the AEDPA.

The AEDPA, and Chapter 154 in particular, does not impose any duties on State officials--

Unknown Speaker: It's to be applied by Federal courts, which is why I'm not sure that there could have been a declaratory judgment in State court.

What would the State courts declare, that Federal courts must follow the AEDPA?

I don't think State--

Mr. Matthias: --No, I--

Unknown Speaker: --courts would give that kind of a declaratory judgment.

Mr. Matthias: --I don't think it would be that, Your Honor, but I think... and the reason I responded affirmatively to Justice O'Connor's question is, I thought we both understood, and it's true that there are State law subquestions lurking in the AEDPA.

In order to qualify under the AEDPA, State law provisions must be of a certain character.

The State must have done certain things.

Unknown Speaker: But unless California has a very unusual declaratory judgment procedure, you usually declare the existence of nonexistence of a certain right.

You just don't come in and say, I want an abstract interpretation of this subproposition of law, am I right or wrong about it.

I mean, you usually say you're entitled to this or you're not entitled to this.

Mr. Matthias: I quite agree, although there's another relevant change in the law, a very recent development that speaks to this precise question.

When this lawsuit was filed, California did not have a certified question procedure.

Let me make this very concrete.

One of the questions, one of the subquestions that lurks in a question of compliance, is a State in compliance or not, is whether or not a State has a rule of court governing the appointment of counsel and standards.

Now, California clearly has written published standards, and you can find them in your own law library, I'm confident, clearly has had that.

The claim of the inmates was that that did not have the dignity of a rule of court within the meaning of California law.

That's actually not that easy a question, because there are many things that go by that label, rule of court, under California law, and the district court quite clearly did not understand that and applied one very rigid question of California law, one very rigid definition, the most limited definition possible.

Now, if California standards for the employment of counsel deserve dignity as a rule of law, that's a State law question.

The Federal courts we had hoped would understand that and correctly construe it, but in this case that failed.

I'm just using this as one example.

There really would have been... when this lawsuit was filed there was no mechanism for the Federal courts to turn to the State courts in California and effectively ask for guidance on that State procedural question.

Fortunately, that, too, has changed, and although the district court would not today have any mechanism for asking for guidance on a certified question basis from the district court, the Ninth Circuit surely would have.

Unknown Speaker: Can... I see that.

Are you finished with that, because I've one question only that I'd like to ask, if you're finished.

Mr. Matthias: Surely, Your Honor.

Go ahead.

Unknown Speaker: What in your opinion is the right route?

That is to say, I believe that you think the State of California thinks it has complied with the counsel requirements in AEDPA, and a group of prisoners on death row think they have not.

And so what the group of prisoners says is, if we file our first habeas within 180 days, we can't complain about the statute because we complied with it, and if we wait until after 180 days, and it turns out we're wrong, we are literally without a remedy to complain about being sentenced to death.

Now, that seems a terrible dilemma to be in, and that's why they filed this lawsuit, and I want to know, in your opinion, are they without any remedy, or if they have a remedy to test out the situation in advance, so they don't get into that dilemma, specifically, what is it?

Mr. Matthias: There are many, and they all arise in the context of the habeas corpus proceeding itself.

It's the earliest opportunity, perhaps, for an inmate to learn whether or not the judge before whom he appears with his habeas proceedings, it's... the earliest opportunity for him to learn whether or not that judge is of the mind that 154 should apply is probably the very first appearance he makes in that court, when he asks for the appointment of Federal counsel and seeks a stay, because if Chapter 154 is applicable in that jurisdiction, the court's authority for entering that stay is 2262(a).

Unknown Speaker: But there's a problem with that, because he has to file the petition in order to see the judge, and I thought that the problem was how much time does he have to file the petition.

If it's 154, half the time, or something like that.

Mr. Matthias: Your Honor, I'm speaking to a point in time that typically precedes the actual filing of a petition by years.

I'm talking about the first appearance in Federal court... not a physical appearance, but the filing of a document that requests... State proceedings are done, you turn to Federal court and you say, I would like a lawyer, I want to pursue Federal habeas corpus review, I have a execution date pending, and I would like that stayed for the purpose of appointing a lawyer, the procedure that this Court essentially described in McFarland.

That is well pre-petition, well pre-petition, years.

Unknown Speaker: But is the applicant going to... is he going to know any particular judge at that point?

Mr. Matthias: Yes.

Unknown Speaker: He would be dealing with a--

Mr. Matthias: The procedure in the Northern District and all the districts of California is that the request for appointment of counsel gets docketed, it gets a number, it gets the initials, it goes to a court, and that judge almost invariably that day enters the stay, signs the order, and the search for a lawyer begins.

And if the judge is going to enter a stay in a death penalty case, that judge must at that point in the procedure, at that early stage must ask himself, is this going to be a Chapter 154 case, or is this going to be a Chapter 153 case?

And the reason the judge must consider... concern himself with that question is that the authority for entering a stay in a jurisdiction where Chapter 154 does apply is 2262.

The judge must ask himself, what am I staying, and what is my authority for staying it?

Unknown Speaker: --So does the death row prisoner argue, I want the stay, and I'm entitled to a stay only if California has not complied with these legal requirements?

Mr. Matthias: No.

He's entitled to a stay--

Unknown Speaker: He's entitled to a stay only if your position on the merits is wrong.

Mr. Matthias: --No.

He's entitled to stay--

Unknown Speaker: Only if it's right.

Mr. Matthias: --No.

He's entitled to a stay whether we are Chapter 153 or 154.

The difference is--

Unknown Speaker: I'm saying, how does he get to raise his claim?

Mr. Matthias: --He raises that claim by identifying the provision of law under which--

Unknown Speaker: Well, he said the judge would say it doesn't matter.

Mr. Matthias: --The judge could say that.

Unknown Speaker: All right.

Well, what he's trying to do is to require a court to say that he's right about California's not complying and California thinks he's wrong, and my question is, although this is a very unusual action, what other kind of action could be bring to get that raised, and the answer may be none, but I want to know what you think about that.

Mr. Matthias: The answer is no other action, but numerous other courses of conduct, numerous other avenues of recourse.

One would be--

Unknown Speaker: Let's get one.

Let's get one--

Mr. Matthias: --One would be--

Unknown Speaker: --because the first one I'm not too happy with.

Mr. Matthias: --One would be asking for a stay, and having the court decide whether or not the stay is pursuant to 2262, which does not apply unless Chapter 154 applies.

Unknown Speaker: Okay.

Is there another one?

Let's try another one.

Mr. Matthias: He could ask... he could ask the court for guidance on that, and the judge would have to provide it, because the judge is required to determine whether Chapter 154 applies or not, because if it does, the judge is statutorily obligated to give that matter priority, so the Federal district judge must concern himself with this question.

Unknown Speaker: Is it essential to your case to show that there was some other way for these people to get an advanced declaration of what their rights were?

I mean, many litigants are faced with the problem, is my cause barred under a 2-year statute of limitation, under a 3-year statute of limitation, and ordinarily the cautious ones will take the 2-year statute of limitations.

Mr. Matthias: That's exactly right, Your Honor.

I quite agree, it is utterly unessential for us to demonstrate the existence of these other opportunities.

I was simply responding to the concern that wouldn't guidance be a good thing early on, and guidance would certainly be a good thing early on, and it's manifestly attainable without suing State officials in a separate cause of action for a declaratory judgment and enjoining them from ever breathing a word of their view again about the question of compliance.

Unknown Speaker: A lot of the questions from the bench up to now, and the... your argument have been devoted to the second question presented, is this a proper injunction, but you also contend it's a violation of the Eleventh Amendment.

Could you state briefly what the basis for that contention is?

Mr. Matthias: Ex parte Young was developed, which was the doctrine that was ultimately invoked by the Ninth Circuit in support of this cause of action, of this proceeding.

Ex parte Young exists to harmonize the Eleventh Amendment with the well-recognized importance of having Federal courts be open to interpret and enforce Federal rights against State conduct that illegally infringes upon it.

State officials do not act illegally by expressing a legal point of view to a Federal district court on a question that's in dispute.

That's not an illegal act.

At worst, it's mistaken.

At worst, it's that.

But that's the question that the suit was designed to resolve, whether or not it's... who's right or who's wrong.

The AEDPA is not something that State officials have any capacity to violate one way or the other.

It's a reform measure.

It's not directed to us.

It's directed to inmates, primarily, and secondarily it's directed to the conduct of Federal district courts and Federal courts of appeal.

We're not in the... it imposes no duty on us.

It establishes no prohibitions that we can fail to heed.

The most we can do on this question of AEDPA applicability, Chapter 154 applicability in particular, the absolute most we can do is explain to a Federal court what our view of its applicability is and why.

If there's going to be a violation of its provisions, which would be their application to a situation where the law would not have them applicable, that would be judicial error.

That's the sort of thing you take care of by an appeal, if you feel aggrieved by a ruling by a district court that you think is wrong.

Not illegal.

The district court is not in a position to act illegally by erring.

That's just pure judicial error, if it's anything.

Unknown Speaker: Well, you're right on that.

The thing that... I think the thing that's bothering me that makes this a serious case is this.

Ex parte Young essentially had I think two justifications, and they did not have to be separated in Ex parte Young.

In the first place, there was the threat in effect of the imposition or the threat of the... an illegal restriction upon the imposition of a tax, so that if it was an improper restriction, the State officials were acting illegally.

Secondly, there was what the Court described as rather a fear of draconian consequences if an Ex parte Young proceeding could not be brought because, in fact, if it should turn out that those who wanted to protest the State restriction were wrong, the consequences, the exactions that the State would then be entitled to would virtually, economically would destroy the person who had objected.

The stakes, to put it crudely, were too high for normal litigation.

What we've got here, arguably, is half of Ex parte Young.

You're entirely right, we don't have the kind of threatened illegal action that Ex parte Young was talking about.

But as Justice Breyer's question indicated, there does seem to be an argument that if in fact the prisoner who claims that the State is not in compliance, that that prisoner either has to play it safe and act in accordance with a shorter period, or the prisoner has to take an awful risk, because if the prisoner is wrong, the prisoner, in effect, will be executed without the benefit of Federal process.

So it seems to me that arguably half of Ex parte Young is here, and the question is, to me is, is that enough?

I will agree with you that the other half seems to be missing, but is the draconian consequence half here, and is that enough for us to say Ex parte Young should apply?

Mr. Matthias: It is not here.

It is not here.

That draconian choice does not exist.

That Hobson's choice, that dilemma that you see referred to in the respondent's brief, does not exist.

This lawsuit is not a way out from a bind.

If any inmate in California wants guidance on the question, will I or will I not be held to the time lines of Chapter 154 or any other provision of the AEDPA, for that matter, all he need do is ask the judge, and Mr. Ashmus knows this first-hand.

Unknown Speaker: Well, what if the judge says, look, I'm not here giving you advisory opinions.

I'm just going to appoint counsel for you and you'll have to worry about your time limits.

The judge can perfectly well respond that way, can't he?

Mr. Matthias: The judge must concern himself with that question.

He must concern himself with that question at the threshold the first time he meets that--

Unknown Speaker: Tell me... that's the point that I think I'm not getting.

Why does he have to concern himself with it at the threshold?

Mr. Matthias: --Because it's a different provision of law that will authorize--

Unknown Speaker: Yes, but as Justice Breyer said, he says, look, I'll appoint him under this section or that section.

I'm still going to make an appointment.

I mean, that would be open to the judge, wouldn't it?

Mr. Matthias: --I think the judge would more than likely want to inform himself not only what is the authority for the stay, and I realize it could be one of two places, he would also need to inform himself whether the entire proceeding is one which he will be statutorily required to--

Unknown Speaker: But wouldn't it be premature for the... I mean, the one thing he has to do, whether it's 153 or 154, is appoint a lawyer, and you said this could happen years before the actual petition is filed, so why would a judge want to make a determination at that threshold state that might well be different down the road when the petition is actually filed?

I mean, you just pointed out that California has passed new legislation and everything.

Why--

Mr. Matthias: --It won't change.

The question whether a particular proceeding will be conducted under 154 or 153 will not change as a result of changes in the law that occur after you get into Federal court, because Chapter 154 looks to the mechanism that was in place--

Unknown Speaker: --You say... but when is getting into Federal court?

Is it when you file the application for the stay of execution, or when you file the habeas petition?

Mr. Matthias: --Well, you get into Federal court under McFarland for the purpose of asking for a lawyer and getting a stay.

Unknown Speaker: Yes, but not for the purpose of making a determination whether it's 153 or 154.

Mr. Matthias: Well, that may not be the purpose, but that's the effect, because if the judge grants the stay, the judge must concern himself with his statutory authority for entering such a stay, and the source of that authority will differ, depending on whether it's 153 or 154.

The judge must also concern himself--

Unknown Speaker: But it... for the purpose of what the judge is doing at the moment, does it make any difference... does it have anything to do with what counsel he can appoint, how much that counsel will be paid, whether at that point he says 153 or 154?

Mr. Matthias: --It does, because the judge will have read the statute and will understand that the minute that petition is filed he's obligated to treat it with priority over all other noncapital matters.

The judge must concern himself, and I think it's inconceivable that a court would concern itself with that question and indulge in case management process and somehow keep it a secret from the inmate, and--

Unknown Speaker: Well, if that was all so clear, why didn't the district judge and the Ninth Circuit just tell us that?

They said this... this is a nonissue, because the minute he files for the say of execution the judge, district judge is going to put a stamp, 153 or 154 on it.

Mr. Matthias: --I can't tell you why the Ninth Circuit did not take stock of the fact that there are many mechanisms for determining that short of a separate lawsuit.

Unknown Speaker: What's another one?

You've given us one.

What's another?

Mr. Matthias: You could simply file a motion.

When attorneys are in Federal court they get extensions of time to file the petition, and stays of execution in connection with their efforts to get more time to file a petition.

If we're talking about a due date it wouldn't make any sense to discuss that between and among the parties without some sense of what the controlling law would be.

You don't need to confront this at the last minute.

Unknown Speaker: But ordinarily, you know, if you're going to get a ruling from a district court you ordinarily would have one party actually present, the other party present.

To simply kind of casually ask a judge, you know, what's the law in this case, I think most judges would tell you, well, you know, you brief me.

I'm not going to brief you.

Mr. Matthias: Well, that's right, except Mr. Ashmus knows very well that it's entirely possible to go to your Federal district court judge with questions, uncertainties that you have about the application of AEDPA, and you get lickety-split answers.

Unknown Speaker: Yes, but may I just go... you never completed your answer to Justice Breyer as far as I was concerned, because you gave the example if he thinks 134 applies, or 154 applies then he'll act pursuant to 2262, grant the stay, and so forth.

It seems to me most judges in the Ninth Circuit, district judges are probably going to think that the court of appeals was right on the ultimate issue, and that 153 applies, just as a practical matter, even if we vacate the decision.

Mr. Matthias: No.

As... I suspect strongly Your Honor is exactly correct.

Unknown Speaker: But then what happens if the judge thinks, well, I'll follow 153, when he comes in and asks for a lawyer and a stay?

Mr. Matthias: Then he gets the benefit, the inmate knows that he will not be held to 154, we express our objections, and that will become an issue that will be reviewed in due course.

Unknown Speaker: And--

--But in due course it may turn out the inmate's wrong--

--He's wrong--

--and end of line.

That's the dilemma.

Mr. Matthias: Well, it may still turn out--

Unknown Speaker: I mean, you just backed yourself into it.

There is a problem, and I would think that California would be as interested as the prisoners in knowing whether or not it is correct that California has a unitary procedure within the meaning of the statute, and much of that's going to be determined as a matter of State law.

Mr. Matthias: --We are enormously interested--

Unknown Speaker: Which is why I asked you in the first place whether they couldn't go into State court and determine whether there are State laws that establish what is required for a unitary proceeding.

Mr. Matthias: --Your Honor, I assure you the State is enormously interested in attaining resolution of this question.

We are simply not interested in being sued under circumstances where we are immune in order to attain resolution to that question.

Unknown Speaker: Well, let me ask you, suppose you had conferred in the Office of the Attorney General and you said, you know, this suit is a vehicle for us to get a quick answer.

We'll know one way or the other.

We'll know if we have to adopt a special rule or statute, so we'll accept the jurisdiction of the court, but we don't want an injunction.

Would that have made any sense?

Mr. Matthias: It certainly would have been... it would have made enormous sense to insist up on no injunction, because that's preposterous and unprecedented.

Unknown Speaker: Well, but then what good would the class action have done without the injunction, because then these petitioners would be in the same position as if they hadn't filed a class action at all.

They still have to look at their calendar and file their petitions, or am I wrong about that?

Mr. Matthias: My only response to that is, I... to the extent that there is an insoluble dilemma created by the AEDPA, and I don't believe it's at all insoluble, but to the extent it is troubling and the stakes are indisputably high, that is a function of the AEDPA itself, not what State officials say about the AEDPA.

Unknown Speaker: Thank you, Mr. Matthias.

Mr. Laurence, we'll hear from you.

Argument of Michael Laurence

Mr. Laurence: Mr. Chief Justice, and may it please the Court:

The question before this Court is when a State has declined to participate in a Federal program, does Ex parte Young permit a declaratory judgment action to prevent State officials from unlawfully, not necessarily illegally, obtaining the benefits?

Unknown Speaker: What's the difference between unlawfully and illegally?

Mr. Laurence: The unlawfully aspect of this case is that Ex parte Young doesn't focus merely on whether the State's actions are illegal, but rather whether or not the State's actions interfere with a cognizable Federal right, and that is precisely what--

Unknown Speaker: Well, that's not really right.

It's only been used to enjoin some kind of continuing violation of Federal law and as I understood this new Federal procedure, the State isn't obliged to opt for a unitary review procedure.

It's an option open to a State that meets certain requirements, and California now has passed a statute apparently trying to opt in, but it doesn't violate the law by not doing so, or by taking a position on whether it wants to or doesn't want to.

I mean, that's just the strangest complaint that you've made.

Mr. Laurence: --The question of whether or not California's entitled to the benefits of Chapter 154 is one that Congress determined by the presence of a statute.

Either 153 applies--

Unknown Speaker: No, the State does not have to try to opt in to unitary review.

It's an option open to the State.

Mr. Laurence: --That's absolutely correct.

The State does not have to opt in under Chapter 154.

They can maintain the status quo under Chapter 153, and States cannot be sued to be forced to opt in under Chapter 154, but Congress did say that if the State does not opt in to Chapter 154, they are not entitled to the benefits of Chapter 154.

Unknown Speaker: But your injunction that you obtained in the district court prohibits the State from taking the position that 154 applies, and the State says, it seems to me with considerable justification, that there is nothing illegal about our arguing the position, and you have therefore taken away one of the principal threshold primary tests for Ex parte Young.

The State is doing nothing illegal in arguing a position.

Mr. Laurence: What the district court found as a matter of fact as well as a matter of law is that the effect of the threats that the State of California would invoke Chapter 154 in future habeas proceedings was that petitioners were forced to comply with 154 in... without regard to the law.

Unknown Speaker: But that has nothing to do with the State's position, the State violating the law.

So it put these death row inmates to their option, but that doesn't... the State has a perfect right, I would think, to make an argument that thus-and-such is so.

If it's wrong, it will be told so, but to make an argument of law that ultimately turns out to be incorrect surely is not violating the law.

The district court... you know, a lot of mumbojumbo doesn't change that.

Mr. Laurence: What the district court found was that Chapter 154 does not apply in California.

That was the basis for the declaratory judgment.

To give effect to that declaratory judgment, however, the court found it necessary to enact a re... antirelitigation injunction, preventing the State from going to the next courtroom and saying, we don't care what this judge said over here, Chapter 154 does apply here, in an attempt at creating divergence opinions, and divergent opinions are precisely what Justice O'Connor pointed to as the problem.

Unknown Speaker: But Mr. Laurence, I take it from what you said about the declaratory judgment that nothing really turns on California's bragging or... that the defendants on death row would be in precisely the same position if the California Attorney General didn't speak one word, as long as there was a realistic suspicion that California might take this position.

Suppose somebody in the AG's office said, yeah, we might take that position.

I don't see where you have made a lawsuit on the basis of what the Attorney General said he would do any... I don't see that your case is any stronger than it would be if all there was was a suggestion that California might make such a claim.

If your death row inmate is differently situated in those cases, explain to me why.

Mr. Laurence: That is absolutely correct, that whether or not you're entitled to a declaratory judgment does not turn on whether or not the State officials have already asserted compliance with Chapter 154.

Unknown Speaker: So you're saying every death row inmate in every State in the country could come in and say, district court, give us the assurance that when we file our petition it will be under 153 and not 154.

Nothing peculiar to California and the Attorney General having acted in a certain way.

Mr. Laurence: I think there are two limiting principles here that would prevent that kind of result.

The first one is the operation of Ex parte Young can only apply when Congress has established two mutually exclusive procedures for governing habeas procedures and the State is the gatekeeper.

Unknown Speaker: But I'm not even getting up to Ex parte Young.

I'm getting up to, do we have a case or controversy fit for Federal adjudication?

Looked at one way, this is a plaintiff coming in and saying, Federal court, please knock out what would be an affirmative defense to my habeas case.

Ordinarily, you simply can't go to a court and say now, I've got this lawsuit, but there's a defense in it, and I'd like to have a separate lawsuit about that defense to knock out that defense, and then I'll come in with my lawsuit.

That in any other context would be unimaginable, that a plaintiff could come in with a lawsuit and say, but I've got a threshold lawsuit which will be to knock out this affirmative defense, and then we can have a nice clean lawsuit, without that defense.

Mr. Laurence: That goes to the second limiting principle that I think is present in this case, and let me first say that standing, ripeness, and cause of action were all litigated below, and the State has waived any consideration by this Court of those issues.

Unknown Speaker: Oh, you cannot waive the presence of an actual case or controversy within Article III.

Nobody can waive that.

Mr. Laurence: Absolutely not.

Unknown Speaker: We're obliged to raise that on our own.

You can raise standing.

And that's what I'm raising.

This, I thing you'll agree with me, is a plaintiff saying, I am a potential habeas petitioner.

In my habeas case, I don't want them to raise that defense, because it will be literally death for me, so I want an anticipatory suit to get rid of what would be an affirmative defense in my full-blown lawsuit.

I don't know of any other situation like this.

Mr. Laurence: And I agree, Your Honor, and to clarify my earlier remarks, the cause of action argument was the one that was expressly raised by the petitioners in the reply brief, but--

Unknown Speaker: Well, that's a 12(b)(6) question.

I'm--

Mr. Laurence: --That's correct.

Unknown Speaker: --way short of that.

I'm really asking, do we have a justiciable case or controversy under Article III when a plaintiff comes to court and says, before I bring my complaint, please knock out an affirmative defense.

Mr. Laurence: If we fulfill the requirements of the Declaratory Judgment Act, which is a discretionary jurisdiction but is limited to specific circumstances where the rights and responsibilities of the parties must be decided before there's irreparable injury, then I believe we are properly before this Court.

Unknown Speaker: Well, the declaratory judgment is a remedy.

It isn't... doesn't create jurisdiction that wouldn't exist otherwise.

Mr. Laurence: That's correct, and under section 1331 there's no question that this Court has jurisdiction because this dispute arose from a Federal statute.

Which of the two competing procedures apply to habeas petitioners in California.

Unknown Speaker: Do you know any other instance in which someone has gotten a declaratory judgment on just an abstract issue of law, whether 153 or 154 applies, as opposed to whether I am entitled to occupy this property, or whether, you know, a particular right... this is no adjudication of any right of your clients at all, whether they're entitled to get out of prison, whether they're... you know, it's just a declaratory judgment for a declaration about an abstract proposition of law.

I didn't know you could use declaratory judgment for that.

Mr. Laurence: It's not an abstract--

Unknown Speaker: I thought you had to have a cause of action.

Maybe it was a little early that you're asserting it, but you have to be making a claim of right.

Mr. Laurence: --And the claim of right I believe stems from Chapter 153 and 154.

Congress said--

Unknown Speaker: --not claim of right.

You're claiming that... as Justice Ginsburg said, you're raising an anticipatory defense and saying that defense is invalid.

That's not a right.

Mr. Laurence: --Congress I believe established that these two procedures cannot coexist, that habeas petitioners, by default, as this Court recognized in Lindh v. Murphy, are entitled to the benefits of Chapter 153.

They have 1... up to 1 year to file their Federal petitions.

They have the normal rules of amending those petitions, and they have the additional procedures that are governed by 153.

Chapter 154 is far more restrictive, requiring habeas petitioners to do far more faster than anything we ever saw in Chapter 153.

If Congress intended our rights to be vindicated under Chapter 153, the only way to obtain those rights is a declaration that we are entitled to those rights.

Unknown Speaker: Well, Mr. Laurence, supposing in a somewhat different context you have a claim that you want to bring under 1983, some sort of a civil rights claim, but you're not ready to bring the claim yet, and you're worried which statute of limitations, which State statute of limitations will the Federal court apply to your case.

Do you think you can go in and say, I'm not ready to file yet, I just want to know what statute of limitations is going to apply?

Mr. Laurence: I believe in most circumstances the answer is no.

Unknown Speaker: Why should it be different here?

Mr. Laurence: A statute of limitations that does not depend upon an assertion of a defense by a State officer does not involve the same kind of problems that were recognized in Ex parte Young.

Unknown Speaker: Yes, but the problems are... certainly that doesn't make it any easier for you.

It makes it harder.

Mr. Laurence: I'm sorry, it does make it more difficult to understand what the law is, but Congress has not established these two independent statute of limitations depending on what the State officials do after you have filed in excess of the time permitted by one of those statute of limitations.

Unknown Speaker: Mr. Laurence, is it clear that the application of the statute of limitations depends, as you say, upon the assertion of a defense by the State?

Suppose California comes in and says, we don't qualify for 154 treatment, whereas they plainly do.

Do you think a Federal court can ignore 154?

Mr. Laurence: Absolutely not.

Unknown Speaker: And say, because California wants to do it the old way, and they like these lengthy procedures, we're going to subject the Federal court to these lengthy procedures?

Does it make any difference whether California asserts it or not?

Mr. Laurence: It makes a difference in that they can only apply if the State qualifies, that's correct.

Unknown Speaker: If the State qualifies, not if the State asserts that it qualifies.

Mr. Laurence: I don't believe that any court has held that we are going to apply Chapter 154 despite the fact the State has not demonstrated--

Unknown Speaker: Well, I'll be darned if I'm going to let a State make the Federal process more cumbersome than Congress has said just because it chooses to.

You don't think a Federal court is going to allow that, do you?

Mr. Laurence: --I respectfully disagree.

I do believe that this is a unique situation where Congress has said the States must come forward and demonstrate that they opt in to get these beneficial provisions.

If a State fails to do that, then the habeas petitioners have the right under Chapter 153 to have their habeas proceedings processed by that chapter.

Unknown Speaker: I... we know the substantive part, but I'm having the same problem.

I don't... and I think your case turns on this.

I don't see any need for an injunction here if you can get a declaratory judgment.

After all, you get a declaratory judgment, appeal that, you'll get an authoritative ruling, but what right do you have to a declaratory judgment?

Now, you must have read about declaratory judgments in preparation for this.

Everybody's asking you I think the same question.

Can you find any analogy at all... I mean, I can be helpful, I think.

I know that you can get a declaratory judgment against the State where the State's threatening to do something bad to you.

I know you can get a declaratory judgment against the State where the State's threatening to bring a lawsuit against you and there's good reason for proceeding first.

I know you can get a declaratory judgment about a defense if they think almost certainly the thing's going to be raised and there's very good reason, you know, for finding out the defense first.

So you've read those cases.

I haven't.

What's your best way of saying, even if there's nothing right on point, we can get a declaratory judgment here even though it's about a defense likely to be brought in a lawsuit called habeas corpus that I, who want the declaratory judgment, are going to bring?

Mr. Laurence: I think the case most on point is this court's decision in Steffel v. Thompson, in which this Court said a threat for future proceedings brought by State officers which interferes with a person's Federal rights is a proper... proper forum to bring it within a declaratory judgment act.

Unknown Speaker: But there the people had been arrested and the threat was to continue the arrests.

It wasn't just taking a position on some legal point.

Mr. Laurence: If I remember the facts correctly, the two people who brought the lawsuit originally had not been arrested.

Unknown Speaker: But there was... they proved a continuing threat of arrest, did they not?

Mr. Laurence: The continuing threat was the threat to take action.

That is absolutely correct.

Unknown Speaker: Well, to take action of arresting them.

Mr. Laurence: But this Court hasn't distinguished between arresting or threatening some other type of proceeding for the purposes of the Declaratory Judgment Act, and in fact the State's position in this case before the district court was that, despite the fact that a Declaratory Judgment Act... declaratory judgment would be entered, they planned and were wishing to seek a divergent opinion in the very next courtroom.

That is the basis for the injunction.

Unknown Speaker: But if... cases like Great Lakes v. Huffman and others say that you have to comply with virtually the same requirements to get a declaratory judgment that you have to comply with to get an injunction, so it's not as if you can avoid the principles of injunctive law on the merits by saying all I want is a declaratory judgment.

You have to make a showing there, too.

Mr. Laurence: You certainly have to make a showing that there's an actual case or controversy as well as the particular requirements of standing, Federal jurisdiction, and everything else, but the State here has conceded that a declaratory judgment was proper in the district court if it had been made in a habeas proceeding in behalf of an individual petitioner.

Unknown Speaker: Well, that wouldn't be so much of a declaratory judgment.

That would simply be a ruling on the habeas petition that it was timely filed.

You know, in that sense you can say that any number of rulings are declaratory judgments.

I don't think the State concedes that a separate declaratory judgment would be proper.

Mr. Laurence: Well, in the district court they did, Your Honor, and I refer to the proceedings that were conducted on May 6, 1996, where they actually... I'm... pardon me.

They stated that a declaratory... you can get a declaratory judgment in the actual habeas proceeding brought by Mr. Troy Ashmus.

Now, of course, they can't concede Federal court jurisdiction, nor can they concede any of the other aspects.

Unknown Speaker: I don't understand that point, because it seems to me if they bring it, say, after 180 days the judge makes a ruling of law in that case.

They don't have to label it a declaratory judgment or anything.

This is... how is it any different from a defendant pleads statute of limitations, the judge rules on that affirmative defense and rejects it?

Why do you label that declaratory judgment?

It's just a ruling on the timeliness of the lawsuit.

Mr. Laurence: It certainly doesn't have the label of a declaratory judgment, necessarily, but when we were discussing the alternatives in the district court and the Ninth Circuit the State took the position that you would get the same declaratory judgment in Mr. Ashmus' habeas proceeding.

That would be a binding order that would provide some protection to Mr. Ashmus.

Now, of course, this case wasn't brought only on behalf of Mr. Ashmus.

It is a class action--

Unknown Speaker: But the problem is... you gave us Steffel v. Thompson, where I suppose the defendant... the petitioner is trying to ward off the State instituting criminal proceedings against him.

Wasn't that it?

Mr. Laurence: --The person actually wanted to handbill at a mall and was threatened with arrest for loitering, for distributing the handbills.

Unknown Speaker: Right.

So that has all the feel of a concrete... I mean, he said, I've done it, they told they're going to arrest me, I'm going to do it again, they're going to arrest me again.

But here we just... we have an... a question abstracted from a controversy down the road, and I think there are all kinds of courts in the world, even in some States that can say, this is what the law means, but the Federal courts don't have that kind of authority.

Mr. Laurence: Maybe it would be helpful if I bring it to actually one individual case.

Mr. Clarence Ray, who was affirmed... his convictions and death sentence was affirmed by the California supreme court on May 6, 1996.

A reading of Chapter 154 by anyone would say that the time for filing his Federal petition has begun to run unless he takes some further action.

Unknown Speaker: But that's true... what you're saying now is true of every person in every State that might say 154 applies.

Every death row inmate is identically situated to the person you're just describing.

Mr. Laurence: Where they have to make some decision about how to proceed.

Unknown Speaker: Where they... whether the State has said anything as long as there is any genuine concern that the State might attempt to qualify, that person is going to be facing the kind of dilemma that you're bringing to our attention.

So I don't see anything that you... anything additional stemming from what the California Attorney General said unless a State says, look, we're know we're so far away from compliance, and some of them have, I understand, so it's going to be 153 for us, because we could never prove that we have all our ducks in line.

Unless a State is saying that it's 153 for us because we can't comply with 154, then every defendant, every person on death row in any State that might claim 154 could bring exactly the case that you're bringing, a class action.

Mr. Laurence: I would think they would have to show some actual case or controversy.

They would have to demonstrate that the State could plausibly claim entitlement to Chapter 154.

Unknown Speaker: Right.

Right.

Mr. Laurence: But I would think that those kinds of situations likely are going to be resolved either by this, resorting to this mechanism, or by individuals in cases such as Maryland, which has only six people on death row at the time they filed their complaint, in any individual case.

Unknown Speaker: Mr. Laurence, getting down to one of the themes that we have here, which is what's different about the claim that you're making from the claim of any litigant who says, I'm not quite sure when to sue, so I'd like to bring a preliminary threshold action to litigate the possibility of affirmative defense of the statute of limitations--

Mr. Laurence: I think that--

Unknown Speaker: --What is at stake here that's not at stake there?

In each of those cases, if the litigant comes in on the assumption that the shorter statute applies, the litigant is going to lose some luxury of time which the litigant would have had if the longer statute applies, so no question, you would lose that, too.

Do you lose anything else?

Mr. Laurence: --You do if you're uncertain as to the law and you don't know, for example, in Mr. Ray's case what he should have done on May 6, his options are this:

He could have filed a pro se Federal petition without the assistance of counsel to toll the time for the Chapter 154 statute of limitations.

He could have filed a pro se State habeas petition.

His first petition would toll the statute of limitations, yet he would have done so without the basis of investigation or resources that Congress--

Unknown Speaker: So you're saying if one or the other applies, he better get his petition for counsel in fast.

Mr. Laurence: --He has to make some decisions.

Unknown Speaker: All right.

Is that enough to elevate this to the level of a case or controversy whereas a normal statute of limitations doubt would not suffice as a case or controversy?

Mr. Laurence: I think the Congress has set up this statutory scheme where it intends one of the two circumstances to apply, and those circumstances involve the risk that people will be executed because they have made the wrong choice.

Unknown Speaker: What about his suggestion that you could structure this differently?

I take it to be that you file it within 180 days.

You move for a stay for a year-and-a-half.

The State comes in and says, that's absurd, a stay for a year-and-a-half, because the Congress wants this quickly.

You stipulate that it is absurd, unless they don't comply, you see, making your legal argument.

The judge decides one way or the other.

You ask for a certified appeal.

You get an appeal to the Ninth Circuit.

I take it he's suggesting something like that as a route.

Is there anything wrong... of course, I don't know if you can structure it that way or not.

Mr. Laurence: It is possible for the 110 individuals who are in Federal court--

Unknown Speaker: I mean, you couldn't get a class, but you could get a test case.

Mr. Laurence: --But the test case would not have been resolved until after the running of that 6 months.

Unknown Speaker: Everybody would have to file the protective and ask for the stay.

I mean... I'm trying to make something of what he was saying.

Mr. Laurence: Absolutely.

Unknown Speaker: And everybody would have to file within the 180 days, immediately move for a stay, so he can bring it a year later, and the issue of whether that stay is proper or not proper would turn on exactly what you want to raise.

Mr. Laurence: And that would have been a remedy for the 50 or so individuals in Federal court at the time we brought this lawsuit who hadn't filed petitions yet, but our class contains 300 members who were not in Federal court or who were in Federal court without counsel.

Mr. Monteo, who's case was affirmed on April 26, had to wait 6 months before he got counsel from the district court.

During that time period, if he had not been part of this lawsuit, he would have had to make a decision to either file a declaratory judgment motion by himself or a Federal petition by himself in order to stay the tolling of the time period.

It is those individuals who don't have counsel or the ability to get into Federal court who had to know which of these two provisions apply.

Unknown Speaker: But isn't it also true that it's not just a stay.

The first petition he files may be incomplete.

He may not have thought of all his claims.

The question would be whether he has a right to amend after the period goes by if 154 applies.

Mr. Laurence: That's absolutely correct, because if you file your petition and you're governed by Chapter 153, the normal rules of amendments apply, but if you're... if you file a petition and you're governed by Chapter 154, you cannot--

Unknown Speaker: Amend it--

Mr. Laurence: --except under exceptional circumstances amend that petition.

All the petitioners and the plaintiffs in this case are asking for is some guidance as to how the rules are going to be played in Federal court.

They ask for no more, but they certainly ask for no less.

Unknown Speaker: --Well, we have certain rules, too, you know, as to when various pleadings have to be filed, as well as statutory rules about, you know, how long after the judgment in the court of appeals you can seek certiorari.

Why is your case different from the case in which someone claims that the judgment in the court of appeals was entered at a much later date than the other side could plausibly claim?

Can that person bring a suit against the other side asserting that the judgment in the court of appeals was entered at the later date in order that he can assure himself of having another year to prepare his petition for certiorari?

Mr. Laurence: I don't believe so.

I don't--

Unknown Speaker: Why not?

Mr. Laurence: --I don't believe that the rules governing when you must file the cert petition depend upon the actions of the other party.

That is precisely the situation here.

Unknown Speaker: Oh, it doesn't depend on the... oh, I see.

It depends... you mean, it depends on the action of whether the State has adopted the rule.

Mr. Laurence: Absolutely.

Unknown Speaker: Not on whether the State has... is taking the position that they satisfy the statute.

Yes.

Mr. Laurence: Exactly, and the other option that the habeas--

Unknown Speaker: That is--

Mr. Laurence: --petitioners had is that they could have waited until their petitions were finally complete, filing them 6, 7, 8, 9 months after their direct appeal was concluded, and risk having the State come in and say, I'm sorry, you will be executed because you failed to comply with the 6-month statute of limitations.

And Justice O'Connor's question at the beginning of this proceeding I think was completely appropriate, which is, do we want to have a uniform resolution of the systemic question, and I think the answer has to be yes, and you have to provide habeas petitioners with some means of ascertaining their rights.

Unknown Speaker: --And that answer would be yes even if the State had said nothing at all on this question, just the fact that they might do it?

Mr. Laurence: I believe so.

I believe that it does not depend on whether or not they assert compliance if they have the capability of asserting compliance.

If they sat in their offices and said, we'll let you know in 6 months whether or not the statute is going to apply to you, then I think you have a Declaratory Judgment Act that allows you to come in and say, we have a real controversy here, because Congress says there are two competing mechanisms.

Please decide--

Unknown Speaker: I just want to be clear on what your position is, that this could be done in every State except for those States that have admitted that they fall far short of what's required to fit under 154.

Mr. Laurence: --Or where the issue has... doesn't have to address 400 individuals.

For example, Maryland, which could have done this in a simple district court action in which the habeas petitioner could have resolved that issue on his behalf.

We're talking about California, that has--

Unknown Speaker: Well, the fact that there are only six people in... maybe, if that's what you're talking about in Maryland on death row, it still would have to bring this kind of a threshold case, because whether we're talking about six or 600 they all still face the dilemma that you say.

If we file now, when we haven't investigated, it's going to be an inadequate complaint, so that shouldn't matter.

That there are only six shouldn't affect whether you can bring this kind of lawsuit.

Mr. Laurence: --That's correct, Your Honor, if you've satisfied the requirements for the Declaratory Judgment Act.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Laurence.

The case is submitted.