Plaintiffs will be forced to forfeit their rights under Chapter 153 as a direct result of the uncertainty over Chapter 154's applicability created by defendants' assertions. Defendants' statements during the course of this litigation leave little room for doubt that, absent judicial relief, they will continue to make such threats and assertions.
As a practical matter, defendants' assertions would thus secure for the State the benefits of the Act, regardless of whether California actually provides the competent counsel that states are required by Congress to give plaintiffs as a quid pro quo for receiving such benefits. For these reasons, defendants' threats effectively deprive plaintiffs of their rights under chapter 153, and, arguably, under the Due Process Clause as well.
As the Supreme Court recently observed, erroneously denying a state prisoner use of a first "federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, U.S. , 134 L. Ed. 2d 440, 116 S. Ct. 1293, 1299 (1996) (reversing the Eleventh Circuit' order vacating the lower court's stay of a state execution). Effectively forcing state prisoners to file hasty habeas corpus petitions, without providing the quid pro quo benefits of competent counsel, similarly risks injury to this important interest in human liberty.
To be sure, as the Lonchar Court recognized, Congress has the power to establish statutes of limitation on habeas filings. Id. at 1301. By enacting Chapter 154, Congress has exercised that power to make a six month limitation potentially applicable to states. Presumably, Congress could have made Chapter 154 applicable to all states, regardless of their provision of competent counsel to state prisoners for state collateral review. However, Congress has not done so, and it has entrusted to the federal judiciary the responsibility and obligation for determining whether Chapter 154 applies to a given state.
Defendants suggest that now that Congress has enacted such potentially applicable limitations, the Court would inappropriately impose hardship on California were it to exercise its equitable powers to enjoin California from receiving the benefits of the Act. However, the Supreme Court's cautioning against judicial action which "lightly" imposes a statute of limitation in the absence of congressional action, Lonchar, 116 S. Ct. at 1301, counsels equally against this Court allowing defendants to effectively impose a potentially applicable statute of limitation where it concludes that California does not qualify for such an application.
As the Supreme Court emphasized, "given the importance of a first federal habeas petition, it is particularly important that any rule that would deprive inmates of all access to the writ should be both clear and fair." Id. at 1302. The same is true of California's allegedly comprehensive scheme, and of this Court's review of that scheme. As discussed below, however, California's scheme falls far short of this standard. Indeed, as the Ninth Circuit recently emphasized, the June 6, 1989 Policies that defendants contend constitute the core of the alleged scheme are "difficult to articulate," have been "applied only randomly," and were, at least until In re Clark, 5 Cal. 4th 750, 855 P.2d 729 (Cal. 1993), neither clear, nor well-established. Morales v. Calderon, 85 F.3d 1387, 96 Cal. Daily Op. Service 3955, 3956-57 (June 4, 1996) ("expressing no opinion as to whether the California Supreme Court has sufficiently narrowed the timeliness standards or applied them consistently since Clark").
Whether, as plaintiffs assert, defendants' effective deprivation of their rights under chapter 153 constitutes "deprivation" within the meaning of 42 U.S.C. § 1983 raises difficult legal questions. However, as a factual matter, the Court finds that defendants' threats have caused plaintiffs to forgo their statutory rights and that, absent relief from this Court, defendants' threats will continue to cause such injury.
Any doubts as to whether defendants' assertions are causing plaintiffs to forego their rights under Chapter 153 are readily relieved by consideration of what plaintiffs' position in this regard would be if defendants had, instead, stated that they planned to establish a unitary review procedure that would allow them in the future to invoke Chapter 154's benefits. In such a situation, plaintiffs would not face the unconscionable dilemma discussed above, and would continue to exercise their statutory and constitutional rights. While Defendants certainly have a fundamental First Amendment right to express their views in this regard, the Court concludes that the manner in which they have done so has put plaintiffs in a very different position with respect to their habeas corpus rights than they would be if defendants had not done so.
4. Procedural Background
In the thirty days following plaintiffs' filing of this action on April 24, 1996, the Court held three hearings and received six rounds of briefing on the matter. On May 2, at the close of the show cause hearing on plaintiff's application for a "Temporary Restraining Order, Temporary Declaratory Relief, and Preliminary Injunctive Relief," the Court granted plaintiffs' application for a temporary restraining order ("TRO").
On May 13, at the close of the hearing on plaintiff's application for a preliminary injunction, the Court modified and extended the TRO for an additional ten days. See Ashmus v. Calderon, No. C96-1533 TEH (N.D. Cal. May 15, 1996) (Order Modifying and Extending TRO). And on May 24, one day after the hearing on plaintiff's expedited motion for provisional class certification, defendants' expedited motion to dismiss, and other matters raised in the parties' supplemental briefs, the Court issued a brief order addressing the outstanding issues presented by the parties.
In addition, on May 31, defendants filed an Ex Parte Application for Partial 5-Day Stay of Final Order and Judgment, for the sole purpose of facilitating defendants' anticipated application to the Ninth Circuit for a stay pending appeal. On June 3, Defendants filed an Ex Parte Application for Partial Stay of Final Order and Judgment Pending Appeal, asking the Court partially to stay its order, in lieu of defendants' seeking such a stay from the Ninth Circuit.
In the event that any of the following Conclusions of Law are deemed to be Findings of Fact, they are incorporated by reference as Findings of Fact.
CONCLUSIONS OF LAW
In the event that any of the foregoing Findings of Fact are deemed to be Conclusions of Law, they are incorporated by reference as Conclusions of Law.
I. PRELIMINARY ISSUES
Defendants have raised a number of threshold questions concerning the Court's power to hear this case, including challenges to plaintiffs' standing, the ripeness of their claims, and the existence of a cognizable cause of action. As the Supreme Court has explained, these issues are related to, but analytically distinct from the threshold question of jurisdiction.
Thus it may be said that jurisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 384, 4 S. Ct. 510, 512, 28 L. Ed. 462 (1884); Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U.S. 246, 249, 71 S. Ct. 692, 694, 95 L. Ed. 912 (1951); standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction, see Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2204, 45 L. Ed. 2d 343 (1975); cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available.
Davis v. Passman, 442 U.S. 228, 239 n.18, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979) (emphasis in original).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Section 1331 confers jurisdiction upon the Court over "all civil actions arising under the Constitution, laws, or treaties of the United States." A lawsuit "arises under" federal law if (1) federal law creates the cause of action, or (2) "the resolution of the dispute depends upon the validity, construction, or effect of federal law, so long as the federal question is a real and substantial issue." City Nat. Bank v. Edmisten, 681 F.2d 942, 945 (4th Cir. 1982). Plaintiffs seek a declaratory judgment that Chapter 153, rather than the expedited provisions of Chapter 154, governs federal review of his state court conviction and death sentence. Thus, they have alleged facts sufficient to confer jurisdiction under either prong of this test: The Declaratory Judgment Act creates their cause of action, see Samuels v. Mackell, 401 U.S. 66, 70, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) (declaratory judgment is "essentially an equitable cause of action"), and the dispute depends upon the construction and effect of the 1996 Act.
The Court also has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), because, as discussed below, plaintiffs have sufficiently alleged a cause of action under 42 U.S.C. § 1983.
Article III requires a plaintiff to be sufficiently adversary to a defendant to create an actual case or controversy. A plaintiff must show that he has personally suffered some actual or threatened injury as a result of the conduct challenged in the lawsuit, that the injury can be fairly traced to the challenged actions, and that the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).
Plaintiff Ashmus and each member of the plaintiff class satisfy these requirements. As noted above, plaintiffs are suffering "actual" injury because defendants have asserted, and, absent judicial relief, will continue to assert falsely that Chapter 154 governs plaintiffs' ability to file and pursue federal habeas proceedings. Because of the uncertainty created by defendants' assertions, plaintiff Ashmus will be forced to comply with Chapter 154 and to structure his habeas litigation accordingly. Other members of the plaintiff class will be similarly affected. The fact that the provisions of Chapter 154 could not directly apply to plaintiff until his "finalized" petition is filed at some point in the future is no more of a bar to standing than it is to ripeness. See, e.g., New York v. United States, 505 U.S. 144, 175, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) (rejecting ripeness objections to New York's challenge of a statutory provision that, three and one-half years in the future, would require it to take title to low-level radioactive waste on the grounds that "New York must take action now in order to avoid the take title provision's consequences"). Thus, plaintiffs are suffering "actual" injury, and that injury can be fairly traced to defendants actions. Accordingly, plaintiffs satisfy Article III's case or controversy requirement.
Defendants challenge to plaintiffs' standing focuses almost entirely on the fact that the six-month statute of limitations created by Chapter 154, see 28 U.S.C. § 2263(a), which defendants believe "began running on April 24, 1996, as to plaintiff and all other death row inmates whose judgments were affirmed on or after June 6, 1989,"
expires after August 2, 1996, the presumptive filing deadline for plaintiff Ashmus at the time that he filed the instant action.
However, defendants ignore the fact that plaintiff Ashmus must be afforded the right to understand the consequences of filing such a petition. Plaintiff must know, prior to drafting the finalized petition, whether 28 U.S.C. § 2264's limitations on federal courts' substantive review of habeas petitions ultimately will apply to the Court's review of his constitutional claims. He must also know whether to file a petition, as ordered by this Court, that contains exhausted and unexhausted claims. Finally, plaintiff must know whether § 2266's rigid time limitations for adjudication of his petition apply.
The basic purpose of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements..." Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). To achieve this purpose, the doctrine sets forth a "twofold" analysis, requiring the Court to balance "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149. Both parts of this balancing test strongly favor the Court's resolution of the present dispute.
The first part of the test examines the extent to which the issues are sharply focussed. Where, as here, the issue for analysis is, as defendants' acknowledge, "a virtually pure question of law," the issues are generally considered to be sufficiently focussed. Id.; see also Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 581, 87 L. Ed. 2d 409, 105 S. Ct. 3325 (1985); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 300-01, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (noting that in such cases, postponement serves no purpose); id. at 303-04 (noting that, by contrast, postponement is appropriate where precise factual circumstances will affect constitutional analysis). That some of the plaintiffs may be able to exercise control over some of the harm alleged (e.g., by filing petitions prior to the deadline) does not alter this conclusion. Id. at 303-05; Clements v. Fashing, 457 U.S. 957, 961-62, 73 L. Ed. 2d 508, 102 S. Ct. 2836 (1982).
Plaintiffs similarly satisfy the second prong of the ripeness test, the hardship factor. "The most important aspect of the hardship determination is a clear recognition that a decision of legal relationships often should be available before irrevocable commitments are made." 13A Charles Alan Wright, Miller, and Cooper, Federal Practice and Procedure § 3532.4, at 167 (2d ed. 1984). As noted above, plaintiffs have convincingly demonstrated to the Court that, absent judicial relief, they will need to make such commitments with regard to their litigation resources and strategies. The impact of defendants' conduct of plaintiffs is thus "sufficiently direct and immediate to render the issue appropriate for judicial review at this stage. Abbott, 387 U.S. at 152.
Defendants' ripeness challenge rests primarily on their statute of limitations argument, rejected above, and on their belief that, regardless of Chapter 154's applicability, the Act's revised standards of review will apply to plaintiff Ashmus based on the Act's amendments to Chapter 153. See Act, Pub. L. 104-132, § 104(3)-(4), 110 Stat. 1219 (revising 28 U.S.C. § 2254(d)-(e)). Plaintiffs persuasively contest the latter point and request that,
to ensure that an appellate court does not misunderstand this Court's view of the "standing" and "ripeness" issues raised by defendants and the scope of the relief requested, this Court should declare that the amendments to Chapter 153 do not apply to plaintiff Ashmus and the approximately 144 other California death row inmates who invoked federal habeas jurisdiction prior to April 24, 1996.
Pls.' Reply to Class Cert. at 3 n.2.
For the reasons set forth in plaintiffs' First Reply, and in the thorough retroactivity analysis in Wilkins v. Delo, 886 F. Supp. 1503, (W.D. Mo. 1996),
the Court agrees that the relevant provisions of the Act, § 104, do not apply retroactively. Accordingly, the Court holds that § 104's amendments to 28 U.S.C. § 2254 do not render the present controversy unripe.
Nonetheless, the Court rejects plaintiffs' suggestion that it should therefore declare Chapter 153, either in whole, or in part, inapplicable to plaintiffs. Plaintiffs' complaint does not explicitly pray for such relief. In the absence of such a prayer, the Court does not believe that such relief is warranted.
D. Cause of Action
"The concept of a 'cause of action' is employed specifically to determine who may judicially enforce the statutory rights or obligations." Davis v. Passman, 442 U.S. 228, 239, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979). The key question is whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court. The answer "depends not on the quality or extent of [plaintiffs'] injury, but on whether the class of litigants of which petitioner is a member may use the courts to enforce the right at issue. The focus must therefore be on the nature of the right petitioner asserts." Id. at n. 18.
The Court concludes that plaintiffs fall within the class of litigants whom Congress intended to confer rights upon via the Declaratory Judgment Act. See Golden State Transit v. City of Los Angeles, 493 U.S. 103, 119, 107 L. Ed. 2d 420, 110 S. Ct. 444 (1989) (Kennedy, J., dissenting); Samuels v. Mackell, 401 U.S. 66, 70, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) (declaratory judgment is "essentially an equitable cause of action"); Fed.R.Civ.P. 57, 1937 Advisory Committee Notes ("The existence or nonexistence of any right ... may be declared."). Unquestionably, plaintiffs also fall within the class of people whom Congress intended to confer rights upon under the habeas corpus provisions of Chapters 153 and 154.
Whether plaintiffs also have stated a cause of action cognizable under 42 U.S.C. § 1983 presents a more difficult question. Plaintiffs contend that the existence of a § 1983 cause of action in this case is controlled by a straightforward application of Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). Steffel and its progeny, see, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S. 619, 625 n. 1, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986); Carey v. Population Services, Int'l., 431 U.S. 678, 683 n. 3, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977); Doran v. Salem Inn, Inc., 422 U.S. 922, 930-32, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975); Fordyce v. Seattle, 55 F.3d 436, 440 (9th Cir. 1995), involved threatened prosecution or administrative action under a state or local law claimed by plaintiff to be unconstitutional. In each case, the Court held that the fact that state courts might, in the event of prosecution, find the state law unconstitutional did not prevent the threatened prosecution from qualifying as state action creating a federal cause of action pursuant to 42 U.S.C. § 1983. Thus, it is clear that in appropriate circumstances, the threats of state officials to assert an unlawful legal position can give rise to a cause of action under § 1983.
Focussing on the nature of the challenged state action, defendants have pointed out several reasons why these cases are potentially distinguishable from the instant case. The Court recognizes that applying the principles underlying Steffel to the instant case represents a novel application. However, the Court believes that defendants have misperceived the relevance of these cases to the instant action. The relevant focus is not the nature of state action,
but the nature of the harm that Steffel and other courts have held to be cognizable under § 1983.
The Supreme Court has mandated that Section 1983 be "'broadly construed against all forms of official violation of federally protected rights.'" Dennis v. Higgins, 498 U.S. 439, 444, 111 S. Ct. 865, 869, 112 L. Ed. 2d 969 (1991), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 700-701, 98 S. Ct. 2018, 2040-41, 56 L. Ed. 2d 611 (1978). Threatened harm that has not yet occurred, but that will occur unless judicial relief is afforded is enough to support a civil rights claim. See, e.g., Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 431-32, 107 S. Ct. 766, 774-74, 93 L. Ed. 2d 781 (1987).
Thorsted v. Gregoire, 841 F. Supp. 1068, 1083 (W.D. Wa. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996). Accordingly, the Court believes that the mere fact that another actor--whether it's the state court in the threatened prosecution cases, or the federal court in the instant case--may limit the harm caused by defendants' conduct does not defeat a cause of action under 42 U.S.C. § 1983.
In Steffel, the uncertainty caused by state officials' threats to prosecute plaintiff under an allegedly unconstitutional statute caused plaintiff to forego his First Amendment rights to free speech. In Thorsted, the uncertainty created by state officials' threats to enforce an allegedly unconstitutional term limits measure caused plaintiffs to forego rights secured by the First and Fourteenth Amendments, as well as the Qualifications Clause. In the instant case, the uncertainty created by defendants' threats is causing plaintiffs to forego their rights, under Chapter 153, not to be executed without a federal court's determination that their conviction and sentence does not offend the U.S. Constitution. The denial of these rights "is a particularly serious matter ..., risking injury to an important interest in human liberty." Lonchar v. Thomas, U.S. , 134 L. Ed. 2d 440, 116 S. Ct. 1293, 1299 (1996).
Defendants have appropriately cautioned the Court that in extending well-established precedent to issues of first impression, courts should be mindful of the need to establish a principled basis on which to limit that extension. This case readily provides such a limiting principle. As the Supreme Court has repeatedly emphasized over the past two decades, see, e.g., Gardner v. Florida, 430 U.S. 349, 357-58, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977), and as Congress' enactment of Chapter 154 vividly exemplifies, "death is  different." Cf. 13A Wright, Miller, & Cooper, Federal Practice and Procedure § 3532.5 at 185 (2d Ed. 1984) (noting, in the related context of ripeness, that courts' "willingness to protect against even prospective burdens of compliance is enhanced if especially valuable interests seem to be at stake"). Thus, while the cognizability of plaintiffs' § 1983 cause of action is not entirely free from doubt, the Court concludes that, in the context of this case, plaintiffs have raised sufficiently serious questions to warrant the preliminary injunctive relief requested.
II. CLASS CERTIFICATION
On May 6, 1996, pursuant to Civil Local Rules 7-10 and 23-2, plaintiffs moved on an expedited basis to have their motion for provisional class certification heard on May 13, together with the preliminary injunction hearing already scheduled for that time. In response to defendants' vigorous objection that a May 13 hearing would not allow sufficient time to undertake the "rigorous analysis" required under Rule 23, see General Telephone of Southwest v. Falcon, 457 U.S. 147, 161, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982), the Court set the class certification hearing for ten days later, on May 23. The Court notes however, that defendants' brief analysis of the requirements of Rule 23(a) and their failure even to mention, in their brief, two of the bases proposed by plaintiff to maintain this action under Rule 23(b), belies their suggestion that anything less than the "normal" 35-day briefing schedule provided for by this Court's local rules would prejudice their ability to address the merits of class certification.
See Defs.' Opp'n to Exp. Mot. at 4-5.
Plaintiff seeks to certify a class consisting of all prisoners who have been sentenced to death by the State of California and are currently awaiting execution. To qualify for class certification, plaintiff must first satisfy the four prerequisites enumerated in Fed. R. Civ. P. 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. In addition to these prerequisites, plaintiff must satisfy one of the bases for maintaining a class action listed in Rule 23(b).
Plaintiff bears the initial burden of demonstrating that Rule 23's requirements have been met. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D. Cal. 1994); see also, Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975) (noting that because class certification inevitably involves some speculation, plaintiff need only present "sufficient information [for the court] to form a reasonable judgment"), cert. denied, 429 U.S. 816, 50 L. Ed. 2d 75, 97 S. Ct. 57 (1976). The district court has broad discretion in determining whether to certify a class, however, and its determination "should not be overturned on review unless it is shown that the district court abused its discretion." Spectrum Financial Companies v. Marconsult, Inc., 608 F.2d 377, 382 (9th Cir. 1979), cert. denied, 446 U.S. 936, 64 L. Ed. 2d 788, 100 S. Ct. 2153 (1980). The Court concludes that plaintiff has met his burden and that provisional certification is warranted in this case.
A. Rule 23(a)
Plaintiffs seek to certify a class consisting of all prisoners who have been sentenced to death by the State of California. By its express terms, Chapter 154 applies, in qualifying states, to all members of the class who petition for habeas corpus in federal courts. 28 U.S.C. § 2261(a) ("This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence."). Plaintiffs assert that the class contains approximately 439 persons, with approximately two unknown members being added to the class each month.
Defendants do not dispute plaintiffs' numerical estimates. Rather, they contend that the appropriate class consists only of the approximately 52 death row inmates who, like plaintiff, have state death judgments that became final after June 6, 1989, and who have not yet filed federal habeas corpus petitions. Having thus redefined the class, defendants claim that plaintiffs fail to satisfy the numerosity requirement because death row inmates in California are easily located, easily identified, and "are engaged in litigation or will be." Defs.' Opp'n to Class Cert. at 10-11.
Defendants correctly note that the current members of the class are easily identified and easily located. However, for several reasons, their claim that class representation is thus inappropriate lacks merit. First, solely by virtue of the undisputed fact that two to three "unnamed and unknown future" persons are being added to the class each month, joinder in this case is "inherently impracticable." Jordan v. Los Angeles County, 669 F.2d 1311, 1320 (9th Cir.), vacated on other grounds, 459 U.S. 810, 74 L. Ed. 2d 48, 103 S. Ct. 35 (1982). Second, while there is no exact numerical formula for determining whether a class is sufficiently numerous, see, e.g., Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.), cert. denied, 449 U.S. 1113, 66 L. Ed. 2d 842, 101 S. Ct. 923 (1980), the Ninth Circuit has indicated that even by defendants' own estimate of 52 class members, the numerosity requirement is satisfied here. Jordan, 669 F.2d at 1319 (reversing district court's denial of class certification and noting that "we would be inclined to find the numerosity requirement in the present case satisfied solely on the basis of the number of ascertained class members, i.e., 39, 64, and 71") (emphasis added). Third, given the undisputed fact that more than a quarter of the proposed class members are without counsel and likely to remain so for some time,
the likelihood that these individuals will engage in litigation against defendants at some point in the future hardly renders their joinder in this action practicable.
Defendants' efforts to redefine the class similarly lack merit. With one exception, these efforts are based on distinctions between class members that are irrelevant to the requirements of Rule 23. First, as discussed below, all members of the proposed class share common questions of law and of fact. Second, defendants' claim that the proposed class members whose cases are currently pending in state court have no cause of action and therefore should not be included in the class runs directly counter to Supreme Court precedent. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974) ("In determining the propriety of a class action, the question is not whether ... the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.") (quoting Miller v. Mackey International, 452 F.2d 424, 427 (5th Cir. 1971)). In addition, defendants ignore the fact that Chapter 154's applicability will affect these individuals' decisions about how best to preserve federal habeas review of constitutional claims, when and whether to seek certiorari, and whether they are entitled to "reasonable litigation expenses." Third, defendants' suggestion that prisoners who have already filed federal habeas petitions should be excluded from the class, presumably because the filing deadline will not apply to them, ignores the remaining provisions of Chapter 154 that Congress expressly made applicable to pending capital habeas petitions. Death Penalty Act, Pub. L. No. 104-132, § 107(c), 110 Stat. 1214, 1226 (1996) (Chapter 154 "shall apply to cases pending on or after the date of enactment of this Act.").
Defendants have raised one important distinction, however, that the Court's May 24 order did not sufficiently take into account. During the course of this litigation, defendants have conceded, that California's alleged comprehensive scheme does not apply to death row inmates whose judgments became final prior to June 6, 1989. Accordingly, defendants argued, these inmates will "not be subjected to any 'unlawful' argument by state officials about the application of federal law." Defs.' Opp'n to Class Cert. at 10.
Based on plaintiffs' contentions that these concessions contradicted some of the very assertions by defendants that gave rise to this action, and on the Court's own concerns that defendants' concessions might not be legally enforceable in subsequent actions, the Court provisionally included such persons in the certified class. Upon reconsideration, however, the Court concludes that the roughly 50 persons whose judgments were affirmed prior to June 6, 1989, should not be included in the class. Accordingly, and good cause appearing, the Court hereby MODIFIES the provisionally certified class to exclude such individuals.
The existence of common questions of law alone, or of fact alone, satisfies the commonality requirement. Cottrell v. Virginia Elec. & Power Co., 62 F.R.D. 516, 519 (E.D. Va. 1974). The requirement is met by the alleged existence of a common practice by defendants; the defendants' actions need not affect each member of the class in the same way. Arnold, 158 F.R.D. at 448. Whether Chapter 154 applies in California and whether defendants' assertions in this regard are harming death row inmates in California are the central questions presented by this case. Standing alone, these questions, which plaintiffs have demonstrated are common to all members of the class, satisfy the commonality requirement. Nehmer v. U.S. Veterans' Admin., 118 F.R.D. 113, 117 (N.D. Cal. 1987) ("Courts have frequently certified classes whose members share a common threat of future harm.").
Plaintiffs' complaint and brief list a litany of additional factual and legal questions that are common to members of the class. Pls.' Compl. PP 21-22; Pls.' Class Cert. Mot. at 6 (e.g., whether California has a unitary review procedure; whether California has a statute or rule providing for standards of competency for the appointment of counsel in unitary review procedures; whether defendants have threatened to assert that Chapter 154 applies to all or some members of the class; whether, if California has the appropriate mechanisms and rules required by 28 U.S.C. § 2265, it has broadly failed to comply with the specific requirements of those mechanisms and rules; and whether California has entered an order by court of record appointing counsel for all indigent death row inmates who have accepted offers of counsel).
Defendants have not specifically objected to the commonality of any of these questions. Rather, they have simply asserted that because "plaintiff has no existing case or controversy with defendants on the issue of Chapter 154's application[,] he therefore presents no questions of law and fact common to or typical of the proposed class." Defs.' Opp'n to Class Cert. at 12-13. As noted above, the Court has concluded that plaintiff has standing. The Court hereby finds that the questions of law and of fact identified by plaintiffs are indeed common to all members of the plaintiff class. Accordingly, the Court holds that plaintiffs have satisfied the commonality requirement.
The typicality requirement is satisfied if the "class representative[s] ... possess the same interest and suffer the same injury as the class members." East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 52 L. Ed. 2d 453, 97 S. Ct. 1891 (1977). Typicality does not require that the named plaintiff's claims be identical to those of the other class members. Moreover, a finding of commonality will ordinarily support a finding of typicality. Falcon, 457 U.S. at 157 n. 13. Aside from the jurisdictional arguments previously rejected by the Court, defendants have failed to identify any manner in which the class representative's claims or defenses are atypical. The Court finds that the class representative possesses the same interests and suffers the same injury as other class members. Accordingly, plaintiffs have satisfied the typicality requirement.
Two factors are considered in determining whether a case satisfies the requirement of fair and adequate representation. First the class representative's interests must be coextensive with and not antagonistic to the interests of the remainder of the class. Second, plaintiff's counsel must be fully competent to prosecute the action as a class action. Jordan, 669 F.2d at 1322. "The attorney's zeal, competence, and experience are factors relevant to the District Court's exercise of discretion" in the appointment of counsel. Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 43 (N.D. Cal. 1977).
Defendants do not appear to contest that plaintiffs have satisfied this requirement. The Court finds that the named plaintiff's interests in challenging the applicability of Chapter 154 are identical to the interest of the remainder of the proposed class.
Moreover, plaintiffs' counsel are fully competent to prosecute this case in a class action. Numerous state and federal courts, including this Court, have appointed the attorneys for plaintiffs to represent indigent prisoners under sentence of death. The Court finds that plaintiff has satisfied the adequacy requirement.
B. Rule 23(b)
In addition to satisfying the prerequisites listed in Rule 23(a), plaintiff must demonstrate that this action falls within one of the three categories enumerated in Rule 23(b). So far as relevant here, Rule 23(b) is satisfied where:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or