Nelson v. Peckham Brief in Opposition to Petition for Writ of Mandamus and/or Prohibition

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UNITED STATES COURT OP APPEALS 
FOR THE NINTH CIRCUIT

LOUIS E. NELSON, Warden, 
California State Prison 
at San Quentin,

Petitioner,
vs.

HONORABLE ROBERT F. PECKHAM, 
Judge of the United States 
District Court for the 
Northern District of California,

Respondent.

BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF MANDAMUS 

AND/OR PROHIBITION

21969

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TOPICAL INDEX

BRIEF IN OPPOSITION TO PETITION FOR 
WRIT OF MANDAMUS AND/OR PROHIBITION

:Jurisdiction 
Question Presented 
Federal Statutes Involved 
Statement of the Case

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II.

REASONS WHY THE WRIT SHOULD NOT BE 
GRANTED: INTRODUCTION AND StlMMARY OF 
ARGUMENT fV
PETITIONER'S BURDEN OF PERSUASION IN 
THESE PROCEEDINGS

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III. EXHAUSTION AND INEFFECTIVENESS OF STATE
REMEDIES ' ■ j:

IV. THE ATTORNEY GENERAL'S OBJECTIONS TO THE 
JOINDER AND CLASS-ACTION FORMS OF THE PRO­
CEEDING BELOW ARE UNFOUNDED

V. THE DISTRICT COURT PLAINLY HAD JURISDICTION 
TO CONSIDER THE APPLICATION BEFORE IT FOR 
DECLARATORY AND INJUNCTIVE RELIEF

VI. BECAUSE THIS COURT LACKS JURISDICTION TO 
REVIEW ORDERS OF THE DISTRICT COURT IN THE 
PROCEEDING PENDING BELOW INSOFAR AS IT IS 
ENTERTAINED AS AN ACTION FOR DECLARATORY AND 
INJUNCTIVE RELIEF, IT IS ALTOGETHER INAPPROP­
RIATE FOR THE COURT TO REVIEW JUDGE PECKHAM'S 
ORDER PRIOR TO THE TIME WHEN HE HAS DECIDED 
WHETHER TO ENTERTAIN IT AS SUCH

Conclusion

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TABLE OP CASES, STATUTES AND 
REFERENCES

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[This "Brief in Opposition to Petition for Writ 
of Mandamus and/or Prohibition" was researched, 
written, and prepared for presentation to the 
Court in the course of one weekend. We were 
first notified in the morning of July 7, 1967 

that a hearing in this matter was scheduled 
for 10:00 a.m., July 10, 1967, and the Brief 
was completed —  minus the customary table of* , :i - -
authorities -- in the early hours of the morning 
of July 10. We apologize to the Court for our- i
failure under the circumstances to compile a

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table of authorities and, with the Court's in­
dulgence, we propose to remedy this defect by 
midweek.] >i1 •

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-i.TIP

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

• 1 4 :
LOUIS E. NELSON, Warden, 
California State Prison 
at San Quentin,

Petitioner,
vs. No. 21969

HONORABLE ROBERT F. PECKHAM, 
Judge of the United States 
District Court for the 
Northern District of California,

Respondent.

BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF MANDAI4US 

AND/OR PROHIBITION

Jurisdiction !
Petitioner invokes the jurisdiction of this Court to 

issue an extraordinary writ pursuant to 28 U.S.C. § 1651(a).
Question Presented

Is a stay of execution issued by a United States 
District Court to delay the imminent execution of several State 
prisoners pending a decision on threshold jurisdictional and 
procedural questions an order so clearly beyond the District 1 

Court's jurisdiction that this Court should Issue an extra­
ordinary writ? ' it ’ B

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Federal Statutes and Rules Involved

Among the statutes directly pertinent to the issues

Also involved are Federal Rules of Civil Procedure 
20, 23, and 81(a)(2).

Statement of the Case

On June 26, 1967, Joshua Hill and two other inmates
of Death Row at San Quentin Prison filed on their behalf and 
on behalf of others similar situated a Petition for a Writ 
of Habeas Corpus (28 U.S.C. §§ 1343, 2241(c)(3)) and for 
Injunctive and Declaratory Relief (42 U.S.C. § 1983; 42 U.S.C. 
|| 2201-02). On that date, barely more than two weeks remained 
until the next scheduled execution in the gas chamber at'San 
Quentin. The prisoners sought, among other things, provision­
al relief restraining the executions at San Quentin during the 
pendency of the proceedings. Also filed with the Court on 
June 26 was a 38 page Memorandum of Law outlining in consid­
erable detail four fundamental questions of constitutional 
law respecting California's procedures by which defendants 
in capital cases are adjudged guilty and sentenced to be put

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to death.*

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The substantive Issues raised In the District Court; j
below, briefly stated, are as follows: (a) California's 
practice of excluding jurors opposed to the death penalty 
from the guilt, sanity, and penalty phases of the trial isij •
a denial of the defendant's right to a .trial by an impartial 
jury drawn from a cross-section of the community in violation

I"of the Due Process and Equal Protection clauses of the Four-. • I - • V- ;• •; -f.
teenth Amendment; (b) the absence of standards guiding the

.Ss |jury's decision in choosing between the death penalty and
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life imprisonment violates the Due Process Clause of the 
Fourteenth Amendment under the rule'of Giacclo v. Pennsylvania, 
382 U.S. 399 (1966); (c) given the absence of standards for 
the jury's determination of punishment, the imposition of the 
death penalty constitutes cruel and unusual punishment in 
violation of the Eighth and Fourteenth Amendments to the 
United States Constitution; and (d) the failure of California 
to provide counsel for those under sentence of death unable to 
obtain counsel following the automatic appeal to the Califor­
nia Supreme Court is a denial of their rights under the Sixth 
and Fourteenth Amendments to the United-States Constitution.

*We are lodging, contemporaneously with the filing 
of this brief, several copies of the 38-page Memorandum of 
Law filed with the District Court. For a more comprehensive 
discussion of the substantive issues presented below, we res­
pectfully refer this Court to that Memorandum. Because the 
issues which the Attorney General se'eks to raise in his peti­
tion for a writ in this Court are entirely procedural, we have 
not endeavored to brief the underlying substantive questions 
at this time.

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.Judge Peckham stated in open court that these substantive
2 issues were not frivolous and the Attorney General has not

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\i ' • disputed this conclusion in his Petition to this Court. That

4it ■■ .■■ the constitutional questions which have been raised below
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a're indeed substantial is amply supported by the Memorandum
of Law filed below and referred to in the preceeding footnote.

7 On the day following the filing of the petition in
8 the District Court, Judge Peckham held a hearing in open court
9 to which the Attorney General for the State of California was

10 invited. Because the Attorney General had not then had an
11 adequate opportunity to study the papers which had then been
12 filed, the matter was continued until Thursday afternoon,Hi I 1 It.

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.13■ June 29, 1967. Counsel for both sides appeared at that hear-

. 14 ing, and, following an extended argument, the matter was taken1 1
15 under submission. The Attorney General filed no responsive
16 pleading nor any other memorandum with the District Court and,
17 to date, has yet to do so. ni / V

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18 On Wednesday, July 5, 19^7, Judge Peckham issued
19 his Order described in detail in the next section of this

< 20 Brief. He ordered, inter alia, that pending the further pro-

j 21 ceedings in the District Court, the executions of those per-
i- . iV M 22 sons whose execution dates "have been or will be set during
\V'J 23 the pendency of this proceeding are stayed until further order
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* 24 of this Court."

■ . - 25 Executions are now scheduled for July 11, 13, and 18.* The
- 26 *0ther scheduled executions are listed on page two 

of the District Court’s order. The execution of Frederick Sat-
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*oc»;;EKa gK3P3gĉ2'cr7?rr:L...

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Attorney General has filed this action for a writ of prohib­
ition and/or mandamus for the purpose of vacating Judge 
Peckham’s stay so that these executions can take place as 
scheduled. ; . . . !!-VV

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erfield, one of the named petitioners in the District Court 
action, was originally scheduled for July 20, 1967. We are 
advised that this execution has been stayed by Mr. Justice 
Douglas pending the filing of a petition for a writ of certio­
rari. The stay was granted on.the basis of an application 
filed pro se by Saterfield who is (apart from the instant action; without legal counsel. s

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REASONS WHY THE WRIT SHOULD NOT BE GRANTED:
INTRODUCTION AND SUMMARY OP ARGUMENT 

This Petition by the Attorney General attacks an inter 
locutory order by Judge Peckham staying the imminent executions 
of several condemned men who had applied to the District Court, 
individually or as members of a class of condemned men, for 
relief against their sentences of death by habeas corpus, 
injunction, or declaratory judgment. The basis of Judge 
Peckham's Order, simply, is that "a Court must have the power 
to prevent the execution of an applicant so that it may have 
the time to make a deliberate judgment whether it can properly 
entertain the application and, if so, whether the application 
las merit." (Memorandum and Order of July 5, 1967, p. 7.)
'he basis for the Attorney General's assault on that order 
onsists of four disarmingly simple technical propositions, 
ach of which is said to demonstrate that the Order is "patently 
eyond the jurisdiction of the district court and . 
tterly at variance with established doctrines of federalism 
S they relate to habeas corpus and civil rights cases." 
attorney General's Petition, pp. 6-7.)' In the following 
ections we shall show that the purported simplicity of the 
:torney General's technical arguments is deceptive, and that 
>ch argument is defective alike in law and reason -  insofar 
' the hurried research and^ writing which support this Memoranda: 
11 allow us to do so- But at the outset we must note a far

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more vicious defect in the Attorney General's position in this 
Court. The defecu is not technical, hut goes to the very heart 
of the process of reasoned adjudication that is the proud aspira 
tion and laborious achievement of our federal judicial system.

The Attorney General’s attack on Judge Peckham's 
Order is nothing more or less than an attack on the judicial 
function. .It is an attack on the conception that judges are 
free —  indeed, we would respectfully assert that they are 
obliged -- to exercise their enormous powers after thoughtful 
and deliberate consideration of the issues presented to them.
It is an attack on the power of a federal district judge to 
decline to be rushed and harried precipitously into a decision 
which, in his conscientious opinion, he is unprepared to make, 
and by which human life is rendered forfeit. No more funda­
mental assault on Due Process of Law or upon the integrity of a 
federal judge’s responsibility could be imagined.

1 To understand why this is so, this Court has only to 
consider the position of the District Court which the Attorney 
General has made a respondent in the present proceeding. On 
June 2o, that Court was presented with a thirteen-page Petition

a

which, as Judge Peckham noted in his careful Order of July 5, ’
made a "three-pronged attack," on three separate jurisdictional 
bases, upon the death sentences of the individual petitioners ■ 
"for themselves and their purported class." (Memorandum and 
Order of July 5, p. 3.) "Petitioners present four basic 
[substantive] grounds in support of the relief requested .of

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this Court." (Id., p. 4.) In support of the Petition, and to 
document the substantiality of the points which it presented, 
a thirty-eight page Memorandum of Law, with two appendices, was
j.iled by the petitioners. We invite this Court’s attention toi r • i( ■
the Memorandum, and request this Court’s consideration of the 
complexity, novelty, difficulty, and weightiness of the issues 
canvassed. For present purposes, it seems sufficient to state 
chat none has been the subject of a considered opinion by any 
federal appellate courts that the refusal of a judge of the 
Eighth Circuit to grant a certificate of probable cause in a 
habeas corpus case based principally on several of these issues 
was summarily and unanimously reversed quite recently by the 
Supreme Court of the United States, Maxwell v. Bishop, 385 U.S. 
650 (1967) (per curiam) (see the Memorandum of Law submitted 
by petitioners to the court below, p. 32, n.*)j and that, upon 
a class-action habeas corpus petition virtually identical to 
the present one, Judge McCrae of the Middle District of Florida 
had issued a stay of the executions of fifty-one Death-Row 
prisoners in the State of Florida,' Adderly v. Wainwright, M.D. 
Fla., No. 67-298-Civ-J, Order of April 13, 1967, Exhibit B to 
the Memorandum of Law submitted below.

In addition, the court below was "concerned with the 
serious and novel procedural problems presented by this 
application." (Memorandum and Order of July 5, 1967, p. 6.)
Like the substantive issues raised by the Petition, these 
procedural issues were not authoritatively addressed by any

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previous federal appellate decisions, and Judge Peckham 
obviously shared the view of Judge McCrae in Florida that they 
were "complex and unique." (Adderly v. Wainwright, supra, p.
2.) Judge Peckham noted that "Counsel for both sides have 
indicated that they had insufficient time to brief fully their 
positions on the procedural questions. (Memorandum and Order 
of July 5, 1967.) Among these questions were: (a) whether 
jurisdiction lay in the court tg entertain the petition as one 
for habeas corpus (28 U.S.C. § 2241(c)(3)), or for an injunction 
(28 U.S.C. § 1343(3), 42 U.S.C. § 1983), or for a declaratory 
judgment (28 U.S.C. § 2201); (b) whether, in view of the 
diverse jurisdictional bases asserted, the action was properly 
one for decision by a single judge or by a court of three 
judges (28 U.S.C. § 2281); (c) whether, under any of the juris­
dictional heads, a joint petition and/or a class action might 
be maintained; (d) whether, under any of the jurisdictional 
heads, 28 U.S.C. § 2283, as qualified by 28 U.S.C. § 2251 and 
42 U.S.C. § 1983, might bar the form of.relief sought by the 
petitioners; and (e) whether, under any:of the jurisdictional 
heads, 28 U.S.C. § 2254 precluded the court's determination of' 
the cause. :

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Faced with this welter of issues, the District Court 
considered for nine days the request of the petitioners for 
interlocutory relief in the nature of a stay or temporary 
restraining order. During this time, the respondent warden did
not favor the court with any written statement of his position,
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nor any memorandum of law on any of the complex substantive or 
procedural Issues under deliberation. The first of the con­
demned men in the class of petitioners was scheduled to die on 
July 11. Others were scheduled to follow him to the gas V  
chamber on July 13 and July l8j and Frederick Saterfield (a 
named petitioner) was scheduled for execution July 20. In this
posture of affairs, the District Court rendered its limited and 
considered Order of July 5.

Fully conscious of what the Attorney General now calls 
"established doctrines of federalism/' (Attorney General's 
Petition, p .  6), Judge Peckham ordered the filing of an amended 
petition setting forth with particularity the manner in which 
his petitioners contended that state remedies had been exhausted 
or were ineffective within 28 U.S.C. § 2254. (Memorandum and 
Drder of July 5, pp. 5-7-) He further ordered that the peti­
tioners file by July 17 a "memorandum setting forth their 
arguments in respect to the inherent procedural problems"
Jh., p. 6) respecting which the Court’s own exploratory 
•esearch undertaken in the interim indicates that "much ground 
rent uncovered at the last hearing" (ibid.’) —  and that the 
.ttorney General file a responsive memorandum by July 28. 
urther to clarify the issues in the case, Judge Peckham made 
areful provision for exploration by the parties of the factual 
uestion of the "existence of legal assistance to indigent 
amates condemned to death" (id., p. *8), as that related to 
etitioners’ claim that: r ;

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there are persons presently under sentences of 
death who have exhausted their initial automatic 
appeal to the California Supreme Court and who, 
since then, have been and are unrepresented by any 
counsel; and that other such persons will become 
unrepresented by counsel without their knowledge 
and without the possibility of corrective action s under California procedure." (Ibid.) y,.

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A hearing on all issues of procedure was set for August 3, and 
the "time requirements of the Local Rules are shortened to
carry out this schedule." (Id., p. 7.) Finally, for "thej.
reasons stated by Mr. Justice Holmes for the Supreme Court in 
United States v. Shipo, 203 U.S. 563 (1906) [that] a Court must 
have the power to prevent the execution of an applicant so that 
it may have the time to make a deliberate judgment" on the 
questions of jurisdiction, procedure and substance presented 
by his petition, Judge Peckham ordered the stay of nine named 
inmates of Death Row whose dates of execution had been set in 
the near future (two of them, individual petitioners in this 
action), and of any other inmates "whose execution dates have 
been or will be set during the pendency of this proceeding." 
(Id., p. 7.) (Judge Peckham did not, as stated by the Attorney 
General in his Petition to this Court, "stay the execution of 
all state prisoners under sentence of death." (Attorney 
General1s Petition, pp. 1-2.))

Instead of complying with the time schedule fixed by 
ohe District Court for deliberate and considered adjudication of 
the case, and before the taking of steps which the District

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Court thought necessary to clarify the record factually and lay

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the bases for reasoned decision, the Attorney General now asks
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this Court to vacate the District Court’s stay order. By an 
application for prerogative writs dated July 7, supported by 
the written Memorandum of *Law which he did not have the courtesy 
to present to the District Judge prior to that Court’s July 5 

Order, the Attorney General asks this Court to rush to its own 
decision, on inadequate briefing and still more inadequate time 
for deliberation, in order to permit the Warden of San Quentin 
Prison to execute two men in possible violation of their federal 
constitutional rights (which the Attorney General does not in 
his Petition contest) during the week of July 10. We note that, 
in his draft.Order to Show Cause, presented to this Court with 
his Petition, the Attorney General would, further, have had this
Court dissolve Judge Peckham’s stay order with no consideration, 
during the pendency of the mandamus/prohibition proceeding.

This callous disregard alike of the District Court 
and of human life is the more shocking, we suggest, when the 
question is asked why the Attorney General needed to resort to 
this Court at all for this extraordinary relief. The issues 
which he asks this Court to resolve in his favor are still under 
consideration by the District Court, and have not been resolved 
against him. No reason appears why they should be decided in 
baste rather than in deliberation. Where, we invite this 
3ourt to ask, is the irreparable injury to the Attorney General, 
the Warden of San Quentin or the State of California that alone 
.ould justify the exercise of this Court’s extraordinary

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'■tjurisdiction? The taking of human life, in truth, jLs 

irreparable; but brief delay in taking it is not. If the 
Attorney General is right that there are procedural obstacles 
to the entertaining of the proceeding in the District Court, 
or if the grave federal constitutional questions raised by the

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petitioners below are resolved against them, there will be time 
enough to put the petitioners separately and collectively in 
the gas chamber after mature judicial consideration of their 
cause. It is obvious, we submit, that no legitimate interest 
of the State of California will be harmed one whit —  let alone 
irreparably injured —  if the death sentences of the petitioners 
whose execution dates are set remain unexecuted during the 
time when their rights to maintain the action before Judge

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Peckham are duly considered and decided.

The vice of the Attorney General's attempt to have 
this Court short-cut the ordinary deliberative processes of 
judicial decision is exemplified by consideration of one issue 
which the Attorney General presents. His primary ground for 
asking that the writ of mandamus or prohibition issue is that 
"The District Court had no Jurisdiction to Entertain the 
Petition for Habeas Corpus Because of a Failure Properly to 
Allege Exhaustion of State Remedies." (Attorney General's 
Petition, p. 8.) Apart from other defects in this position 
(see Part III., infra), we note that the Attorney General cites 
one case for the proposition that the exhaustion doctrine of 
28 U.S.C. § 2254 "deprives the District Court of jurisdiction

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to entertain a petition for a writ of habeas corpus or to issue 
a stay of execution incident thereto11 (ibid.), Reese v. Teets, 
248 F.2d 147 (9th Cir. 1957). Inspection of the Reese case 
shows that it indeed stands for the proposition for which the 
Attorney General cites it. But fortunately (albeit fortuitously; 
some of the counsel for petitioners below have had occasion 
prior to the present case to do research into this matter of 
exhaustion of state remedies. On the basis principally of this 
research, we are able to point out at this time that Reese v. 
Teets is a derelict on the waters of the law; that it is 
inconsistent with no less than eighteen pronouncements on the 
question by the Supreme Court of the United States, beginning
in 1886 at the birth of the exhaustion doctrine; that it is}•'
inconsistent with decisions of this Court rendered both before

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and after Reese v. Teets (including opinions written by the 
author of Reese v. Teets); and that it is inconsistent with the 
uniform practice of the District Courts and Courts of Appeals 
in every federal circuit that has had any occasion to write on 
the issue. Exhaustion of state remedies is not jurisdictional, 
and a Federal District Court has unquestioned and unquestionable 
power to stay a state petitioner's execution in a death case 
pending exhaustion of state remedies. (See Part III., infra.)’
Ue assume that the Attorney General’s error was occasioned by 
hasty research, the product of his precipitous haste to present

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a colorable case to this Court. But even that charitable
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assumption points out the grave dangers in this manner of
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1 rushed and inadequately prepared litigation. It would be
monstrous* we submit* if two men went to their deaths on July 11

•* * • . 'and July 13 on the basis of Reese v. Teets.
We do not know and cannot know how many other legal 

errors of similar proportions are presented by the Attorney 
General's several submissions in this Court. With the issues

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other then exhaustion* we are less familiar* and our response 
in the following sections is necessarily based primarily on 
intense but limited research and writing over one weekend.
That research strongly suggests to us that the Attorney General 
is wrong at every turn. But he is most egregiously wrong —  
and this is our primary submission Here —  in attempting to 
have this Court substitute haste for care in judicial decisions 
of life and death.

He is most egregiously wrong in seeking to substitute 
an incomplete record for a complete one —  to substitute 
inadequate legal presentation for adequate briefing and argument 
—  to substitute the extraordinary jurisdiction of this Court 
for the due process of adjudication in the District Court —  
and to substitute the Attorney General's unexplained and 
inexplicable urgency to carry out death sentences for the pains­
taking and entirely reasonable conduct of Judge Peckham in 
allowing himself ample time for thought before letting men die 
whose petition to him asserted substantial legal grounds to 
believe that their imminent deaths w6uld be unconstitutional.

For this Court to accede to the Attorney General's
11.

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heedless, headlong rush, and to reverse Judge Peckham for the 
"patent" error of taking his responsibilities in a death case 
seriously, would, we submit, be intolerable.

What we have Just said is ample ground, we think, for 
this Court's denial of the Petition for Writ of Mandamus and/or 
Prohibition. Nevertheless, and notwithstanding our inability 
to brief the issues raised by that Petition with the care they 
require, we shall perforce reply to each point made by the r 
Attorney General in support of the Petition. t - i

First, we shall show the extremely limited scope of 
review of Judge Peckham's Order which is properly available in 
this Court in the present proceeding. We shall show that the 
District Court's Order is fully sustained,'within the scope of 
that review, by the settled doctrine that any court has juris­
diction to determine its own jurisdiction, and may enter

I •appropriate orders to preserve the subject matter of the litiga­
tion pending such an initial determination. (Part II., infra.) 
Then we shall show that each of the Attorney General's 
procedural complaints falls far short of the showing he must 
make to obtain the relief sought in this Court against the 
preservative interim order entered below. ' '

' We treat the question of exhaustion of state remedies 
in Part III. infra, and show (1) that the exhaustion doctrine 
would not be fatal to the jurisdiction of the District Court, 
even if it were unsatisfied by the Petition below; (2) that 
the present record is quite inadequate to support a finding by

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this Court that the exhaustion requirement i£ unsatisfied; and
t • • • ,‘i- ~, ' • !(3) that, in fact, settled principles of federal habeas corpus

law establish that the exhaustion doctrine is fully satisfied' !;. • • . &
in respect to each issue rasied by the petitioners below,

. *" „ .because each has been rejected on the merits by the Supreme
A.it-*'. 'v- /. ’Court of California. >

In Part IY. infra, we turn to the Attorney General’s 
objections to joinder and the class-action aspect of the pro­
ceedings before Judge Peckham. We show (1) that both joinder 
and class actions are appropriate in a habeas corpus proceeding 
under the Federal Rules; (2) that both joinder and class actions 
are appropriate in habeas, quite apart from the Federal Rules;
(3) that both joinder and class action may'be sustained, in the 
present case, treating it as one for injunctive and declaratory 
relief; and (4) that neither issue could, in any event, rise to 
the dignity of a jurisdictional question or one reviewable by 
this Court in prerogative writ proceedings.

In Part V. infra, we dispose of the Attorney General’s 
objections to the present action in its injunctive/declaratory 
form. In Part VI. infra, we point out that, in the injunctive/-
declaratory form, the proceeding below is a three-judge matter,

■\

hence that interlocutory rulings are beyond the jurisdiction of 
this Court to review. At the present stage of the proceedings, 
therefore —  prior to any determination below whether the 
District Court will proceed by one or three judges —  it would 
be highly inappropriate, to say the least, for this Court to.



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it-

interject its process as the Attorney General requests, and
short-circuit the procedure mandated by Congress for the deci-

i; v. '
sion whether a three-judge court shall be convened and whether, 
pending its possible convening, the District Court by a single
judge shall preserve.the subject matter of the litigation by a

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restraining order.

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2 PETITIONER'S BURDEN .OP PERSUASION
3 . ON THESE PROCEEDINGS
4 As the Attorney General recognizes, the function of

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5 this Court in. ruling on his application for a prerogative writ 
,6 is limited to the narrow determination as to whether or not

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7 Judge Peckham's Order "is so patently beyond the jurisdiction
8 of the district court and so utterly at variance with established

. * (i-

9 doctrines" that the issuance of the Order deserves the rebuke
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10 of an extraordinary writ. (See Petitioner's Points and. . V,
11 Authorities, p. 6.) We agree. However, in our opinion, the
12 Attorney General has provided this Court with an adequate
13 description neither of the nature of the jurisdiction actually
14 asserted by Judge Peckham nor of the standards which should
15 guide the Court in evaluating the exercise of jurisdiction by
16 the District Judge.
17 A. Jurisdiction actually asserted by the District Court.
18 The Petition and the Memorandum of Points and Authori-
19 ties filed and served on Friday, July 7, 1967 create the
20 impression that Judge Peckham has finally decided all juris-
21 dictional questions in favor of petitioners below. In fact, '
22 as the text of the Memorandum and Order actually issued by
23 Judge Peckham shows, all Judge Peckham did was to assert
24 "jurisdiction to determine jurisdiction." The Order for a
25 stay of execution ancillary to this type of jurisdiction could
26 have been issued under and is fully supported by 28 U.S.C.

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§ 1651 and § 2284 as well as by § 2251J
In United States v. United Mine Workers, 330 U.S. 258, 

289-295 (19^7)» the United States Supreme Court discussed the 
nature of jurisdiction to determine jurisdiction" in conjunc­
tion with the necessity and propriety of ancillary orders which 
freeze the status quo. In that case a controversy over the scope 
of the Norris-La Guardia Act to limit the power of the District 
Court to enjoin strikes was presented to a federal judge. He' i
was faced with a claim that he had no ultimate jurisdiction to 
grant the requested injunctive relief. .In this case also the 
Attorney General contends that the District Court does not have 
the jurisdiction to grant the condemned prisoners the ultimate 
relief they seek. But in this case* just As in the United Mine 
Workers case* colorable counter-arguments in favor of ultimate 
jurisdiction can be and have been made. The Supreme Court said:

"in these circumstances* the District Court unquestionably had the power to issue a restraining 
order for the purpose of preserving existing condi­
tions pending a decision upon its own jurisdiction." *■Id. at 290. , _ |

The Supreme Court elaborated its approval of the District
Court's action by citing; and discussing United States v. Shipp.
203 U.S. 563 (1906)* the decision explicitly relied upon by
Judge Peckham. See also Walker v. City of Birmingham, decided
by the Supreme Court on the last day of the past term.

It is thus crucial to this Court's consideration of 
the propriety of Judge Peckham's Order to keep firmly in mind 
that the jurisdiction in question is the most limited and

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restrained type of jurisdiction conformable to orderly judicial 
procedure. We know of no case —  and the Attorney General cites 
none —  where an extraordinary writ was issued to restrain a 
District Court from asserting jurisdiction to determine,its 
jurisdiction in a debatable case, and to make ancillary orders 
to preserve the status quo.
B. Applicable standards.

Professor Moore has concisely summed up the standards
o

which should guide a Court of Appeals when a prerogative writ is 
sought on the grounds that a District Court has acted in excess 
of jurisdiction:

"A writ may issue in,cases where it is clear that jurisdiction is wrongfully assumed or 
renounced. Where, however, the jurisdictional issue 
is not clear, but is doubtful or debatable, the 
remedy of review on a subsequent appeal is usually 
deemed adequate and in that event the petition for a 
writ is denied." 6  Moore's Federal Practice H  5 4 . 1 0 r 4 l  at 94-95 (2d ed., 1966). . ■ L J

This neat statement of the law is amply supported by 
the modern benchmark decision relevant to the scope of review 
on a petition brought under 28 U.S.C. § 1651 in advance of final 
decision by a District Court, Roche v. Evaporated Milk Ass'n.. 
319 U.S. 21 (1943). : ;r: .. v

"The traditional use of the writ in aid of appellate jurisdiction both at common law and in the 
federal courts has been to confine an inferior court 
to a lawful exercise of its prescribed jurisdiction 
or to compel it to exercise its authority when it is 
its duty to do so. [Citations omitted] . . . Even in 
such cases appellate courts are reluctant to interfere 
with the decision of a lower court on jurisdictional 
questions which it was competent to decide and which



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are reviewable in the regular course of appeal." Id. at 26 (emphasis added).

And in a recent canvassing by the Supreme Court of these
principles, the Court added the admonition that "Extraordinary
writs are 'reserved for really extraordinary cases.’" Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240, 245 (1964). The
"extraordinary cases" generally appropriate for the issuance of
a prerogative writ involve situations where the effect of the
challenged interlocutory order changes the status quo rather
than preserve it. In such cases, the issuance of the writ
pursuant to 28 U.S.C. § 1651 can truly be said to be "in aid of"
the Court’s jurisdiction. Here, in, contrast, the Attorney
General seeks a writ to review matters which ultimately can be
raised in this Court on appeal.* ** As the Court of Appeals for
the Second Circuit recently observed:

"This extraordinary remedy may not be used to secure 
interlocutory review of disputed questions of law 
which can be reviewed in the ordinary way on appeal."
(Norte & Co. v. Defiance Industries, Inc., 319 F.2d 
335,""337=38' "(1963) ------'----“ “ 7 /

Thus, in this case the Court must decide that the

*0f course, insofar as Judge Peckham’s Order could be 
supported by the alternate jurisdictional claim that this matter 
is a declaratory judgment suit and a plea for injunctive relief 
under the Civil Rights Act, a three-judge court must be convened 
and this Court has no authority to review any order issued by 
the trial court. 6 Moore’s Federal Practice, H 54.10[4] at 95, 
n. 51 (2d ed., 1966), and see discussion infra at

**See also, e.g., Hotel Corp. of Cleveland v. U.S. 
Dist. Court, 283 F.„2d 470„(6th Cir., I960)j;. General' Houses, Inc. v. brachnausen, 256 F.2d 674 (2d Cir., 195o).

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extremely limited "jurisdiction to determine jurisdiction" was 
clearly lacking when the District Court, issued the stay of execu
tion. It must make such a determination on the basis of the■i ■
Attorney General’s conclusionary factual assertions and

1*relatively brief legal arguments which do not even discuss 
the actual type of jurisdiction involved in this case. The 
only possible holding that*the District, Court did not have the 
limited jurisdiction it asserted would be based on a finding 
that the claim for ultimate jurisdiction is wholly frivolous and 
absurd —  in fact so completely lacking in merit that the 
District Court should have perceived its weightlessness 
immediately and indubitably and therefore permit the imminent 
death of several men. As we shall demonstrate in the following 
pages of this Memorandum, not only are the arguments in favor 
of jurisdiction not frivolous, we believe they are convincing.



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EXHAUSTION AND INEFFECTIVENESS 
OF STATE REMEDIES

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The State argues that the stay ordered by the 
District Court was ’’patently beyond its Jurisdiction". . . .  "I: ..
(Petition, p.6) because, inter alia, petitioners have not 
exhausted their state remedies,j; which, we are told, is a 
Jurisdictional defect. jl . • i

Simply stated, this is not and never has been the law.
The State misleadingly cites a single decision while conealing 
from this Court the literally dozens of decisions holding:
(l) That the exhaustion requirement' rest on the principle of 
comity and is not Jurisdictional; (2) Where a petition otherwise 
states an arguable basis for relief, the Court may accept and 
retain Jurisdiction, holding the matter in abeyance while thd 
petitioner exhausts his state remedies; and (3) In such cases 
a stay may issue to preserve the status quo while the petitioner 
returns to the state courts to exhaust. " '
A. The exhaustion doctrine is not Jurisdictional.

The Supreme Court has, on at least eighteen occasions,
• <■

declared that the exhaustion doctrine is not Jurisdictional 
Ex parte Royall, 117 U.S. 241 (1886); In re Wood. 140 U.S. 278, 
289 (1891); Cook v. Hart. 146 U.S. 183, 194-95 (1892); New 
York v. Eno, 155 U.S. 89, 92-95 (1894); Whitten v. Tomlinson, 
160 U.S. 231, 241-42 (1895); Baker v. Grice, 169 U.S. 284, 290- 
91 (1898); .Markuson v. Boucher, 175 U.S. 184, 186 (1899);

20.



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Davis v. Burke, 179 U.S. 399, 402 (1900); Minnesota v. 
Brundage, l8o U.S. 499, 501-02 (1901); United States ex rel. 
Drury v. Le_wis, 200 U.S. 1, 6-8 (1906) ̂ t i b o n e  v. Nichols.
203 U.S. 192, 201 (1906); Urquhart v. Brown. 205 U.S. 179, 
I8I-82 (1907); United States ex rel. Kennedy v. Tyler.
269 U.S. 13, 18-19 (1925); Parr v. Burford. 339 u.S. 200, 
204-05, 210 (1950); Frisbie v, Collins. 342 U.S. 519, 520-21 
(1952); _irvln v. Dowd, 359 U.S. 394, 4o4-05 (1959); In re 
Shuttlesworth, 369 U.S. 35 (1962); Fay v, Noia. 372 U.S. 391, 
414-20 (1963).

• • ?!
The Courts of Appeals, too, have repeatedly held that 

the failure to exhaust available state remedies is not juris­
dictional.* Several cases in this Circuit-idecided both before 
md after Reese v. Teets, 248 F.2d 147 (9th Cir. 1957) relied 
ipon by the State--unequivocally so hold. In Duffy v. Wells,
'01 F .2d 502 (9th Cir. 1952), this Court said, at 504:

"The Warden contends that the District Court 
was without jurisdiction to consider Wells' arm 1-i no-m  rm for the writ of habeas corpus became when t ^ a p p S - ™  
cauion was filed he had not presented by petitioner 
habeas corpus to the California Superior Court his 
contention of the unconstitutionality of the statute 
under which he was convicted, in this the Warden - relies on 28 U.S.C. § 2254 . n

The District Court denied a motion to dismiss 
on this ground [exhaustion]. It retained jurisdiction, 
stayed execution of the state judgment in order to 
enable Wells to petition the [California] Supreme Court

*In addition to the cases cited in the text 
See’ e^g-i Whippier v. Balkom.--342 F.2d 388, 390 ?th Cir. 19657; W¥bb v. Fevton,. 345 F.2d 521 (4th r.ir. no6^. 

ainwnght v. Simp-son, 36U F.2J 307, 309 (5th Cir. 1966)
21. M .

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4uestion- • • -The petition was filed and denied . . Section 2254 being satisfied ' 
the District Court proceeded with the hearing..!."

that With the Warden's contention
to i  "ithout jurisdictionto consider the application For the writ Shen U  
was heard on the merits. Section 2254 does not deny v - -
exhausted10nThp?re ^  State remedles have not been i - ; e hausted. That section provides only that the r ‘
thSt1? ^ 10? ! ha11 not be 'granted' unless it appears "C' ■■

re^ dief have been exhausted. PP Section 2243 provides that 'The court shall summarilv 
hear and determine the facts, and dispose of the 7 ’ • '
it^Iction^n ^  re(inire. ' We think thatits action m  so_ retaining jurisdiction is what law i;- -and justice required. We made a similar retention •o jurisdiction in the habeas corpus case of 
Lee Fong Fook v. Wixon, 9th Cir., 170 F.2d 245."

This principle was again applied in this Circuit in 
[ h omasj^Te^, 205 F.2d 236 (9th Cir. 1953) . There Thomas 
sought a writ of habeas corpus in the District Court without 
’irst exhausting his remedies. The Court of Appeals, following
-ts decision in the Wells case, held that the District Court 
Lonetheless had jurisdiction.* j= ' * : ’

1* . ‘ _

The Court may retain jurisdiction pending exhaustion below. 
Recently, this Court reaffirmed the power of a 

istrict Court to entertain a petition for habeas corpus where 
bate remedies had clearly not been exhausted, and commanded 
lat the District Court return jurisdiction pending the exhaustion 
'elow* Blair v. People of California. 34o F.2d 74l (9th Cir. 
•965). In Blair, the District Court had denied the application, 
or a writ of habeas corpus on the grounds that it was frivolous.

. . *The court held, as an alternative basis for ecision, that were the imminence of an execution made 
t impossible to secure state relief, the exhaustion

22:.
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The Ninth Circuit disagreed with this position, but felt that 
the issue should first be examined by the California courts, 
i.e., the petitioner had not exhausted, and his state remedies 
were not ineffective. The Ninth Circuit did not, significantly, 
agree with the dismissal. It stated: X'

"Where a state prisoner has not exhausted his 
state court remedies. . .the district Court may 
usually either dismiss the application for that . !
reason, or hold it in abeyance while affording 
the applicant a reasonable opportunity to exhaust ':•/
his state court remedies. See Thomas v. Teets, :J% V
205 F .2d 236, 2^0 (9th Cir. 1953) . . . . [W Je be- 
lieve the latter course is preferable here. . . . ;■
[T]he cause is remanded with directions to enter 
an order holding the proceedings in abeyance to 
afford Blair a reasonable opportunity. . .to apply 5
. . .for a re-examination of the question."

(340 F.2d at 7^5 (Emphasis added.))
' ' </It is significant that the Court made no mention of Reese, but 

did cite,Thomas v. Teets, supra. Blair clearly rejects the 
notion that exhaustion is jurisdictional.

. •

In view of these decisions, it is clear that Reese v. 
Teets is not the law in this Circuit or anywhere else. We cannot
explain the Reese case, although we suspect that it does not 
mean precisely what it seems to say inasmuch as its author was . 
the author of both Duffy v. Wells and Thomas v. Teets. Nor can 
we understand how the Attorney General was able to locate the • 
Reese case without also discovering the dozens of cases' holding
expressly to the contrary. Whatever the explanation, it is 1 . 
clear that even if it is assumed (1) that the petitioners in the
doctrine would not apply because the State procedure, 
under the circumstances, would be "ineffective to pro-' tect his rights." ■ < .

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Court below failed to exhaust their state remedies, and (2) 
there exists effective relief in the State courts, Judge Peckham
had ample power to entertain the writ, retain jurisdiction,

‘and grant the stay. And, indeed, had he.done otherwise he. :j . i. '
would presumably have committed error "in light of this Court's
decision in Blair v. California, supra.'- (See also Duffy v‘.
Wells, supra.)

t .’ ■!C. Preservation of status quo.
• i[ ; '■ &

In death cases, the procedure approved in Duffy v.
■ U 1 -■Wells, supra, — holding the case, granting the stay, and dir­

ecting the exhaustion of state remedies— is commonly followed 
in order to preserve the status quo of the petitioner. (See 
Whitney v. Wainwright, 339^.21 275 (5th Cir. 1964); UnitedV "
States ex rel. La Marca v. Denno, 159F.Supp. (S.D.N.Y. 1958); 
Ralph v. Peppersack, 203 F.Supp. 752 (D.Md. 1962); Crawford v . 
234 F.Supp. 700 (E.D.N.C. 1964).),T: This procedure fully protects 
the legitimate interests which the exhaustion doctrine is inten­
ded to serve--avoidance of any unnecessary disharmony between 
the federal and state courts— without sacrificing any petitioners 
on the altar of empty formalism.
D. The Question of exhaustion is not properly before this Court.

Even if the exhaustion requirement were thought to 
be controlling, the posture of this case is such that the 
exhaustion question is not properly before this Court.

The petition we filed in the District Court alleged

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1 that the prisoners have exhausted all state remedies available
to them "within the meaning of 28 U.S.C. § 2254." The Attorney-
General has not yet filed a responsive pleading in the District
Court and thereby putting exhaustion formally in issue. '.The
District Court, however, sua sponte, raised the question in its
Order of July 5* 19&7: •’!

".... There are no allegations that any of the grounds 
of this petition were addressed to the Supreme Court 
on appeal nor are there any allegations that these 
grounds were urged in any State collateral proceedings.

.- Paragraph 12 on page 11 of the petition does contain
the conclusionary assertion that 'petitioners and the 
members of their class have exhausted all State rem-* 
edies available to them within the meaning of ' 4
U.S.C. § 2254.' The Court cannot determine from these 
allegations that the State court has had an oppor­
tunity to pass upon these grounds or any of them or 
that there is either an absence of available State 
corrective process or the existence of circumstances 
rendering such process ineffective to protect the 
rights of the petitioners and their class members. :4.
Because of the insufficiency of this allegation, 
this Court will follow the procedure suggested under ' V 
such circumstances (see Pembrook v. Wilson, 370 F.2d 37 
(9th Cir. 1966 ;̂ Rivera vY United St at es~7~3l8 F.2d 606 
(9th Cir. 1963); Sanders V. United States, U.S. 1, 19 ■
(1963), and ORDER that petitioners file on or before Ly 
July 17, 1967j an amended petition setting forth in 
this regard the pertinent information with specificity 
in accordance with Local Rule 28 of the United States 
District Court for the Northern District of California 
or else the petition for Writ of Habeas Corpus will be denied."

We plan to comply with the District Court's Order by 
filing an amended pleading showing precisely why there are no 
effective State remedies available to the petitioners below.* 
Inasmuch as Judge Peckham has demonstrated his own sensitivity

*The basis for this is discussed infra, at 
subpart 3 of this section of the brief.

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to the exhaustion doctrine and inasmuch1 as the issue is not yet 
ripe for decision even in the Court below, it is singularly 
inappropriate for the Attorney General (who has yet to file a 
single paper in the District Court action) to ask this Court to
rule--on the basis of nothing more than, his own conclusory. . :i • • .*;/.
allegation to that effect— that State remedies have not been

.-I • f ,
exhausted. ,i
E. Exhaustion is not required because such process would

be ineffective to protect the rights of petitioners below.
■ - — ■ - ” T "1 T—_ “ ~ii ■ ““ ‘ ’ ■ ' '... ■ ]lr *■ * •'

As pointed out previously, the exhaustion provision
{ . ••

does not define power, but merely provides a standard for appro­
priate exercise of that power. (Fay v. Noia, 372 U.S. 391>
430-31 (1963)."The principle underlying the requirement [of 
exhaustion] is that, if the doors of the state courts and the 
federal courts are both currently open, a state prisoner ought 
to try the state door first.") Reitz, Federal Habeas Corpus: 
Impact of an Abortive State Proceeding, 74 Harv. L.Rev. 1315,
1364 (1961). Bearing in mind, then, that the exhaustion doctrine 
is not a negative doctrine designed to frustrate federal relief, 
but an affirmative deference to the State court opportunity to 
correct its own errors, it is clear that the exhaustion doctrine 
is to be applied reasonably and not mechanically. This is 
particularly where :that that mechanical application forces the 
petitioner into idle pursuits in the State forum and effects a 
postponement of deserved relief to ’a time when the petitioner 
is no longer present to profit from that rslisf. Thus, if-there



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is no reason for abdication to the State, there should be no 
requirement to abdicate, This principle is recognized in the 
language of section 2254 itself. That section sets forth three 
alternative conditions precedent to the granting of a writ:
(1 ) exhaustion of state remedies, _or (2) absence of available
' ■ • - j " rState corrective process, _or (3) the existence of circumstances

rendering such process ineffective to protect the rights of
the prisoner. . " 7!*4 'pf . ,

It is the position of petitioners below that they 
have satisfied the third of those alternative conditions; 
further resort to the State courts would be "ineffective" to 
provide relief for the invasion of federal rights because the 
California Supreme Court hj.s had occasion within the past year 
and one-half to review each and every substantive contention and 
raised by petitioners below'and has held in every case that 
these contentions do not constitute a basis for relief.

(1)' Right to Counsel: " d 4
v.-. ' 4 .. : ■ f . ’ > d :The prisoners contended in the District Court

that they are^ entitled to State-appointed counsel where they
are unable to retain counsel in order to properly exercise their

" • ' •’ v • - ih -' jpost-conviction rights, e.g., petitions for writs of habeas 
corpus, post-appeal sanity hearings, petitions to the United 
States Supreme Court, and clemency hearings. This contention 
has been directly rejected by the California Supreme Court.

In People v. Shipman, 62 C&1.2d 226, 42 Cal. Rptr. 1, 
397 P.2d. 993 (1965), petitioner filed a petition for a writ of

■ ■ 27- ' Id' 3 1  1



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error corum nobis, which was denied. Petitioner had no assis­
tance of counsel in the preparation of the writ, and appealed on 
this basis, relying on Douglas v. California, 372 U.S. 353 (1963). 
The California Supreme Court held that no such right existed 
until petitioner had made a showing of adequately detailed 
factual allegations stating a prima facie case for relief. The 
Court expressly rejected the proposition that a defendant is f 
entitled to counsel at the post-conviction stage: bi
."[T]he ordinary process of trial and appeal are

presumed to result in valid adjudications. Unless we make^the filing of adequately detailed factual 
allegations stating a prima facie case a condition 
to appointing counsel, there would be no alter­
native but to require the state to appoTnt counsel 
for every prisoner who asserts that there may be 
some possible ground for challenging his conviction.
Neither the United States Constitution nor the-----
California Constitution compels that alternative." (62 C.2d, at 232 (Emphasis added.).)

It should be noted that Shipman was decided subsequent to 
Douglas v. California, supra, on which petitioners rest their
Constitional position.*

(2) Absence of Standards for Determining Penalty
Relying on Glaccio v. Pennsylvania, 382 U.S. 399. 

(1964), the prisoners below urged that the lack of standards to

*It may be sought to distinguish Shipman on its 
facts, since there the petitioner had not committed a capital 
crime. Such a distinction would be futile, however, since the 
basis of the California opinion is the administrative burden 
of State appointed counsel; and, as may be seen from the 
quoted language, the Court's position embraces every type of 
offense. Shipman was decided by a'unanimous court.

■'■■‘'28. ■ i 
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govern the jury's choice between execution and life imprison-
• • T ■; • ' f t , - ' '

ment is a denial of due process. In People v, Seiterle, 'j; ‘
- ii .■ •• • ' ‘-"4 ••

65 A. C. 367, 54 Cal. Rptr. 745, 420 P.2d 217 (1966), this
precise contention was put to and summarily rejected by the r

ti!' ' ■■ ■ • '4California Supreme Court v.'-s

■7:

"Defendant argues. . .that. . .[§ 190.17]is 
unconstitutional because it imposes on the trier 
of fact the duty of selecting the penalty without 
specifying any guidelines or standards to be 
followed. The constitutionality of § 190.1, how- 
ever, has previously been upheld. . .[citing cases].
Giacco v. Pennsylvania. . .is not contrary. . . ;
(65 A. C., at 37 1- (Emphasis added.).) ••• /

• % .
In People v.' Hill, 66 A. C. 531, 564 (1967), the " J '. \ ■ i

Supreme Court reaffirmed the position that § 190.1 is not 
unconstitutionally vague. , Both Seiterle and Hill were unanimous 

decisions. ,
(3) Exclusion'of Jurors

Petitioners below argue that the exclusion of 
jurors with scruples against capital punishment results In a 
denial of due process and equal protection. This argument has 
been consistently rejected by the California Supreme Court, 
most recently in People v. Gonzales, 66 A. C. 494,
58 Cal. Rptr. 361 (1967). See also People v. Mitchell,
6l C .2d 353, 365, 38 Cal. Rptr. 726, 734, 393 P.'2d 526, 534- 
(1964); People v..Spencer, 60 C.2d 64, 75, 31 Cal. Rptr. 782,
383 P .2d 134, 377 U.S. 1007, cert, denied, 84 Sup. Ct. 1924,
12 L.Ed.2d 1055; People v. Ketchel,' 59 C.2d 503, 529,
30 Cal. Rptr. 538, 381 P.2d 394 (1963)5 People v. Shiga,

29.  ' '  ‘ f .



59 C.2d 845, 853, 31 cal. Rptr. 457, 382 p.2d 577 (1963),
377 U.S. 999 cert, denied, 84 Sup. ct. 1927, 12 L.Ed.2d 1049; 
People v._Pike, 58 C.2d 70, 87j 22 Cal. Rptr. 664, 372 P.2d 65, 
-~rt- d*nled* 371 U.S. 941, 83 Sup. ct. 324 (1962), 9 L .Ed.2d 277

In ~ v-le v- Gonzales, supra, the Court discussed!
point at length

of our D03-it?nnale?t • • a reconsideration
of "death a,m??fi=5S as ar®U?d that the institution « ih'? fled Jurors in capital cases denies a defendant the right to be tried by a 'fair and

" SclSdLer|s°nno?Pa°red t0 *?% ̂ ^ ^ ^ e n f l ^ v ^ b e e n ”1
munity, and (2) such irunreprllentativelu^^ls0”"
d S  ?o t h f  ?a??rtia?ar ial ln 4tS ^  determination aue 10 the fact that persons without conscientious
s ?™ple against the death penalty tend to be ers nswith the kind of 'authoritarian personality' which
to ?he6dP?SPSnSiTe to the P^ecution's case the* to the defendant's case, [citations].

the

,, These arguments, while superficiallvattractive, simply do not stand against the rea­
soning of our Smith and Gilbert cases. First as 
to the matter oY 'representative sampling ' it is
oflef L that ?uc^ an ideal has never been the practice of the criminal law. The very reason for challenges for cause is to weed out that part of the random § 
sample having characteristics thought to render ob­
jective judgment difficult. Second, as we pointed 
out in Smith and Gilbert, the Legislature th?oSgh 
its enactment of I T W . 1 of the Penal Code expressed 
hnthefhrence S°r a jury qualified to act throughout 
Vsnch W n fo°f-a case^:involving the ddath penalty.
hnthh+i?gi ^  f Preference f°r the same jury at both trials deprives the defendant neither of due
process nor of the right to an impartial jury
theCtr?ai' °f ?vidence Properly introduced’at the trial on the issue of guilt is relevant in de­
termining the penalty (Pen. Code, § I90.I) having

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1 Law and Procedure, 4l State Bar J. 798, 799.) Third 
and finally, it should be observed that § 1074, as 
interpreted by us in Riser, compels the exclusion of 
all prospective jurors whose1 conscientious opinions' 
would prevent the proper exercise of the discretion 
contemplated by § 190. This certainly means that 
challenges for cause pursuant to § 1074 should be 
granted where it is made to appear that a prospective 
juror's predisposition in favor of the death penalty 
would prevent his voting for life imprisonment in a 
proper case. It is therefore difficult to see how 
either the prosecution or the defense could be favored 
by a proper administration of § 1074 of the Penal Code. 
(See People v. Gilvert, supra, 63 C.2d 690, 712)."*

9 (4) Cruel and Unusual Punishment
10 Finally, petitioners below argue that the death
11 penalty constitutes a "cruel and unusual punishment," and is
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thus prohibited under the Eight er ' •• *’
the Constitution. This position was rejected in February of 
this year by a unanimous California Supreme Court, in People v.

• ; i f '

Thomas, 65 A. C. 749, 759, 56 Cal. Rptr. 305, 423 P.2d 240 (1967).
■ ; ■ ’ 'f; ; • 4The Court states, "There is no merit in defendant's contention 

that the death penalty constitutes cruel and unusual punishment
- ■ ■ ..iL * ' "

...." (65 A. C. at 759.)
It is therefore clear that every contention raised 

in the District Court has been rejected by the California Supreme 
Court, in some cases within the past several months. Signifi­
cantly, those decisions are subsequent to the United States 
Supreme Court decisions upon which petitioners base their con­
tentions and expressly reject the efficacy of those decisions.
In this respect, therefore, petitioners below are not required

*From these statements there was no dissent, .
although one Justice dissented on other grounds.



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personally to raise the issues once again in the State courts. 
Section 2254 of the Judicial Code, and the cases interpreting 
that section, expressly provide that such technical exhaustion 
is not necessary where the efforts in the State courts would he 
futile and ineffective. (See McDonald v. Moore, 353 F.2d 106 
(5th Cir. 1965); Reed v. Beto, 3^3 F.2d 723 (5th Cir. 1965); 
Hayes v. Boslow, 336 F.2d 31 (4th Cir. 1964)] Evans v.
Cunningham, 335 F.2d 491 (4th Cir. 1964).) (See also Blair v. 
Cal^rnia, 34o F.2d ?4l (9th Cir. ■ 1965).) The principle has 
been recognized'and followed by this Circuit in Blair, supra, 
(Hamley, J.) .

: Jl
Moore v. McDonald, supra, petitioner sought a writ

in the District Court on the issue of denial of counsel for a
misdemeanor, without exhausting the issue in the state Appellate
forum. The District Court considered the petition on the merits.
On appeal, the Court of Appeals upheld this position, on the i
basis that the Florida; Supreme Court had previously ruled that
the Gideon Doctrine requiring appointment of counsel for indigent
persons accused of crime applies only to felonies. In light of
this, the Court of Appeals concluded it was not necessary for
petitioner to ask the Florida courts to-reconsider the matter;-

"[T]he state remedies had by reason of the 
decision in the Fish case been pursued to an extent 
sufficient to warrant application for federal relief "(353 F.2d at 107.) * . 7

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CONCLUSION''
The Attorney General errs in concluding that the District

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Court lacked jurisdiction because of the exhaustion doctrine.
Plainly it had jurisdiction to determine its own jurisdiction.

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Beyond that, we have shown:

s I  -(1) That the exhaustion doctrine is a rule of 
comity and has no jurisdictional dimension;

(2) The exhaustion question is not ripe for 
decision inasmuch as the Attorney General has not 
placed it in issue with a responsive pleading nor

: given the District Court ah opportunity to rule; and
(3) In any event, there are no presently effective 

and adequate State remedies for the prisoners to exhaust.

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.1 IV.
THE ATTORNEY GENERAL'S OBJECTIONS TO THE 

JOINDER AND CLASS-ACTION FORMS OF THE 
PROCEEDING BELOW ARE UNFOUNDED 

The Attorney General Asserts that more than one person 
may not join in a petition for habeas corpus,, and that habeas 
corpus is not a proper vehicle for a class action. (Attorney 
General's Petition, p. 9.) It is plain that these contentions 
are neither jurisdictional nor so fundamental to the proceeding 
below as to support a prerogative writ proceeding in this 
Court. (See subpart D. infra.) But, in any event, as we shall
first show, both the joinder and thd class action below are

• . • •

entirely proper. (See subparts A. and C. infra.)
A. The joinder below is proper.

The Attorney General's position on joinder would
. i * i

make impracticality not merely a rule but a jurisdictional 
prerequisite of federal habeas corpus. He asks this Court, 
simply, to require Judge Peckham to entertain at least three, 
and at most sixty, identical habeas corpus petitions, raising 
identical issues and identical arguments, because, it is 
asserted, the District Court entirely lacks power to pursue 
the efficient course of permitting a joint petition. We suggest 
that only extremely compelling technical arguments could support 
the forcing of such a cumbersome procedure on a District Judge. 
We say "technical” because the joinder issue is essentially a

|Y ( j ' j * . i  ■technicality’. No substantive rights in this or any other

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action- are affected by joinder. Procedures in the matter are 
affected only by reducing bothersome paper-handling and reducing 
costs. Rule 21 of the Federal Rules of Civil Procedure 
precludes dismissal for misjoinder; and* in any event, any '

• j'

dismissal on this ground would permit the immediate filing of 
renewed, separate habeas applications by the several individual 
petitioners and members of their class. See Sanders v. United
States, 373 U.S. 1 (1964). But,oeven on the level of technical­
ity, the Attorney General’s case against joinder is a feeble ■;
one.

(1) The question whether several petitioners may 
join in a single habeas corpus petition has recently been 
reserved by one distinguished federal district judge. 
Mezzatesta v. Delaware, 199 F.Supp. 494, 496 (D. Del. 1961) 
(Leahy, J.). As the Attorney General's Petition indicates, 
two decisions by district courts in other circuits have 
expressed the view that joint petitions are improper, in re 
Kosopud,272 Fed. 330 (N.D. Ohio 1920), United States ex rel. 
Bowe v. Skeen, 107 F.Supp. 879 (N.D. W.Va. 1952). These are 
the only decisions to like effect that research discloses,

35.

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however;* and it should be noted that the point is a dictum in 
Kosopud (which'entertains the joint petition on the merits for 
want of objection) and at best an alternative ground for the 
dismissal of an otherwise frivolous petition in Bowe. Peti­
tioners thoroughly' concur in the initial observation of a 
federal district court in Florida that Kosopud and Bowe "do not 
forcefully articulate the reasons for such a rule [prohibiting 
joinder]. (Adderly v, Walnwright, supra,, Order of April 13, 
1967, If 5.) Indeed, the cases do not articulate any reasons 
in history, logic or authority, forceful or forceless, for 
their conclusion.

(2) On the other hand, numerous recent cases may be 
found in which joint federal habeas corpus petitions by state 
prisoners were entertained on the merits, apparently without 
question. E.g., United States ex rel. Kozicky v. Fay, 248 F.2d 
520 (2d Cir. 1957); De Grandis v. Fay, 335 F.2d 173 (2d Cir.

*Petitioner also cites two state court cases interpret­
ing local habeas statutes or practice for the proposition that 
joint petitions or class actions are impermissible in habeas 
corpus proceedings. As the United States Supreme Court has long 
made quite clear, federal habeas corpus actions are not re­
stricted by the technical fetters that, in some state jurisdic­
tions, bind the Great Writ. To enumerate the substantive and 
procedural ways in which federal habeas offers broader relief 
than classical state-law habeas corpus would be largely to re­
hearse the hundred-year history of the writ in the federal courts 
since the seminal statute of I067. Citation of Fay v. Noia,
372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293 (1963), 
should be sufficient. In any event, as we point out in text, 
irifra, most state jurisdictions do recognize the availability of 
"joint petitions, at least in nexTf^friend form —  as the child 
custody cases attest.

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19^0 5 Curtis y. Boeder, 331 F.2d 675 (8th Cir. 1964), 
disposition on remand affirmed on second appeal sub non.
Ford v. Boeger, 362 F.2d 999 (8th Cir. 1966).* There are 
two notable examples in the Fifth Circuit, neither reported, 
to Dresner v. Stoutamire, 5th Cir. No. 21802, decided August 5, 
19o4 (Rives and Jones, Circuit Judges, and Simpson, District 
Judge), a joint habeas petition filed on behalf of several 
"freedom riders" was denied by the District Court on grounds 
of failure to exhaust state remedies. The Court of Appeals 
affirmed, but modified the District Court's Order to provide 
that unless the state courts released the petitioners on 
nominal bail within three days of their application for state 
postconviction relief:

"the District Court will upon the request of any 
such petitioner forthwith proceed to a hearing of 
the application on its merits, and further that 
the District Court will retain jurisdiction until 
the termination of any such state habeas corpus 
proceeding, and if such petitioner is denied relief 
or the proceeding unreasonably delayed, the District 
Court will upon request of such petitioner proceed to a hearing on the merits."

More recently, in Smith v. Davis, 5th Cir., No. ___________ ,
decided April 12, 1967 (Brown and Bell, Circuit Judges, and 
Brewster, District Judge), a joint habeas corpus petition filed: I
in the United States District Court for the Middle District of

*In all of these cases the petitioners failed on the 
merits, although in the Boeger litigation they obtained from 
ohe Circuit Court of Appeals an affirmation of their right to 
a hearing on the substantive federal contentions presented.

37.



J

1 Alabama was coupled with an application for release on bail
2 pending its disposition. The District Court denied the bail
3 application; the petitioners appealed; and on their motion for
4 summary reversal the Court of Appeals reversed and ordered them
5 discharged on bond. In neither of these cases did the Court of
6 Appeals appear to think that the joint petition presented any
7 obstacle to the allowance of relief. 2—
8 (3) Federal Civil Rule 20 permits joinder of plain-
9 tiffs in any action in which they assert joint or several rights

10 to relief in respect cf or arising out of the same transaction,
11 occurrence, or series of transactions and occurrences and if
12 any question of law or fact common to all of them will arise
13 in the action. The present case clearly comes within the rule,
14 in the same fashion and for the same reason as would an injunc-
15 tive action brought to challenge the constitutional validity of
16 a state statute or administrative practice on behalf of several
17 persons, each prejudiced by the application to himself of the
18 common rule or practice. E.g., Dombrowski v. Pfister, 3&0 U.S.

»■
19 ^79 (1965); N.A.A.C.P. v. Thompson, 357 F.2d 831 (5th Cir. 1966);
20 Ware v. Nichols, N.D. Miss., C.A. No. GC 6511, decided March 29,
21 1967. Here the series of occurrences in issue are the convic-i
22 tions, incarcerations and executions of the several petitioners
23 pursuant to California statutes and procedures identical in
24 every instance; and the common question of law presented is the
25 validity of those statutes and procedures against the federal
26 constitutional attacks enumerated above. As the Advisory

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Committee Note to the 1966 amendment of Rule 18(a)* makes 
clear:

"The rules 'proceed upon the theory that no incon­
venience can result from the joinder of any two or more matters in the pleadings, but only from trying 
two or more matters together which have little or ,.
nothing in common.' . . . Accordingly, Rule l8(a) ''■■■■;■
has permitted a party to plead multiple claims of 
all types against an opposing party, subject to the 
court's power to direct an appropriate procedure 
for trying the claims . . . The liberal policy re­
garding joinder of claims in the pleadings extends 
to cases with multiple parties.

We submit it is obvious that if separate habeas corpus petitions 
had been filed for each of the individual and class petitioners 
below, raising only the exactly identical issues which are 
raised by the Petition for Habeas Corpus here, it would have 
been altogether appropriate to join the matters for hearing and 
disposition, since exclusively common questions are posed for 
decision. A fortiori, joinder at the pleading stage is proper 
under Rule 20 as explained by the Advisory Committee Note 
quoted above.

(4) There remains to be decided, of course, whether 
Rule 20 is applicable in habeas corpus proceedings. Under the 
standards of thws Court's decision in Wilson v. Harris,
No. 21,365, decided May 10, 1967,** it is applicable if (a) no 
statute of the United States controls the question of joinder

* This note is incorporated by reference into the 
Advisory Committee Note to the 1966 amendment of Rule 20, deal­ing with permissive joinder of partips.

** See p.49,n.* infra.
39.  -



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1 in habeas applications and (b) the traditional usages of the 
great writ in matters of joinder are conformable to the civil 
action joinder practice of the Rule. Plainly, the statutes are 
silent on the question. Turning to traditional habeas corpus 
practice, we find immediate and obvious precedent for the 
joinder of similarly situated prisoners in petitions for a writ. 
Familiar state habeas practice in child custody cases, for 
example, has always permitted a parent, as next friend, to sue 
out of a single writ questioning the appropriate disposition of 
several children in a family —  and that is so, obviously, 
although the separate issues respecting each child may differ 
considerably more than the issues presented as to each individual 
California Death-Row prisoner who is a petitioner here. See, 
e-g-, May v. Anderson, 345 U.S. 528 (1953); Ford v. Ford,
371 U.S. 236 (1963), sufficiently establishes that such per-

' 1 1 1 ,
vasive state-law habeas corpus practice may be looked to as anI ill I ,
indication of the procedural traditions embodied in the federal• 1 1 * ihi< ii 1.«l.« i»i. . • ;
writ; and it should be noted that as early as 1887 the Supreme

• ' I '/ l l l . i i i l l . i l  j i 1 i . .
Court of the United States entertained federal habeas corpus in• • • I > 1 • i. * \ > 1 < %i* l I i: \ > iii 1■i ‘ > 1 . . ,
its next-friend form, brought by the Belgian consul on behalf

' ■/' I |K: rill I i. 1. V .1 . . . .. . ,

of three individual Belgians detained by state authority in
i : i ; • i .  . .  t.  1 . . 1 1  1 11

alleged violation of federal law. Wildenhus's Case. 120 U.S.'l
.1 1 .'ini 1 I y .. 1,. 1 , . ,,

(1887). These cases strongly suggest that counsel might have* i *. . w t' *. 1 1 *!1 ■ * 1 11; ; . . , , 1 \ i
brought a single next-friend petition on behalf of the several

’ ■ 1 ’ t} ! I i ‘ ] , 1 i. t 111 ■ • . # • 1 . , ■ 1 !*i 1 1 ( . 1 *, i 4 t .

petitioners below, see 28 U.S.C. § 2242, 1F1 ; and the presentj> i’.i ;>!*&> r ui i< • 1 ,. 1 1
Petition surely amounts to the same thing as conformed to the

yi [) .1).
1 ) : iVli iY U. frOw l .1 y u. * . m|i ]



H ^ —  - -  -  - —  >--,K ■ -------------------------------------■— -̂---i— -.
&*i --s«_=̂u 0KJUM*acc=23S ' ~u

i

i

1 real-party-in-interest provision of FED. RULE CIV. PROC. 17(a).
2 Moreover, the old books show numerous pre-1938 cases in which
3 federal courts have entertained Joint habeas corpus petitions
4 not in next-friend form, and have released two or more state
5 prisoners complaining of the federal unconstitutionality of
6 state laws under which they were held. E.g., Anderson v.
7 Elliott, 101 Fed. 609 (4th Cir. 1900), dism'd 22 S.Ct. 930
8 (1902); In re Lee Sing, 43 Fed. 359 (C.C.N.D.' Cal. 1890) (a
9 celebrated case invalidating the infamous Bingham ordinance

10 of San Francisco); In re Spain, 4-7 Fed. 208 (C.C.E.D. N.C.
11 1891); Ex parte Jervey, 66 Fed. 957 (C.C.D. S.C. 1895). While
12 these decisions are not conclusive of the propriety of Joinder,
13 since no issue of the Joinder of petitioners appears to have
14 been made in any of them, we submit it is clear from these and
15 the cases cited above that "the practice in [habeas corpus] . .
16 proceedings" —  all the more persuasive in this regard because
17 so long unchallenged —  "has heretofore conformed to the ‘ ' .
18 [Joinder] practice in actions at law or suits in equity" within
19 the meaning of Federal Civil Rule 81(a)(2) as construed in
20 Wilson v. Harris, supra; hence Rule 20 applies and authorizes
21 the Joinder of petitioners in a petition for a writ of habeas-

■ f .

22 corpus. a .'
23 B. The class action below is also proper.
24 (1) So far as our research has disclosed, the present
25 case is only the second instance of a class action petition for
26 habeas corpus. The first such petition is presently

4i. r '
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-

•»-*-̂*. n»m~iii,'l'< ifc ,̂-m i .wiJ. ■«. anfc. 'r,<i,rh>ifmV caEjaaKrriTr:--jr::

•j3
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:■*3

. i 
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8 

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* )

pending before the United States District Court for the Middle 
District of Florida, Jacksonville Division. Adderly v. 
Wainwright, supra. That Court has been allowed the time to 
determine the propriety of this procedure and has made no 
determinative ruling to date. We agree with the Florida Distric 
Court*s first impression that although "[n]o case has been found 
in'which Rule 23 has been used in this context, . . .  of course, 
this is not determinative [of the propriety of the procedure], 
particularly in view of the recent change in the rule.” (Order 
of April 13a 19^7, ^ 6.) Habeas corpus practice has evolved to 
keep pace with the development of the substantive rights which 
the Great Writ protects,* and concededly petitioners’ broad- 
scale attack on a set of uniform and interrelated practices ’.n 
in the trial and post-trial phases of a State's administration 
of the death penalty is, as a substantive matter, novel. 
Particularly, our contention that a man condemned to die has 
a right to counsel in death row, is both an original constitu­
tional point and one which, as will be shown, uniquely requires 
the class-action form for its presentation. Moreover, Federal 
Civil Rule 23 has been amended only months ago to allow greater 
liberality in the maintenance of class actions of certain sorts. 
We pass to the significance of this Rule.

(2) Under amended Rule 23(a), there are four

*See, e.g., Johnson v. Zerbst, 304 U.S. 458 (1938); 
Price v. Johnstoq, 334 U.S. 266 (1948); Jones v. Cunningham, 3Y l U.S. 236 (1 ^6 3); Townsend v. Sain, 3J2 u.S. 29b (lyS-i); 
Fay v. Noia, 372 U.S.“39T"(49'o3T----

42.
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 in

.' n
—..

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... 

.. 
 

_

i

1

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6

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8 

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21 

22

prerequisites to a class action. The first prerequisite, that 
the class be "so numerous that joinder of all members is 
impracticable" is not new in the amended Rule. It runs back 
to the roots of class-action practice in equity. As Professor 
Moore has pointed out, the concept of impracticable size of 
the represented class is not a matter of numbers alone:* 
beginning at least with Smith v. Swormstedt, 16 How. 288, 303 
(1857), the courts have recognized that "the instability of the 
names and number of the represented" is one hallmark of a 
proper case for the class suit. 3 MOORE'S FEDERAL PRACTICE,
^ 23.05, at 3422 (2d ed. 1966). Thus, the Fourth Circuit has

1 .1 . •'*

recently permitted one Negro physician to sue for an injunction 
against racially discriminatory exclusion from staff privileges 
at a Hill-Burton hospital, as the representative of a class of 
eighteen Negro doctors in the hospital area, plus those unidenti­
fiable "Negro physicians who are not new members of the commun- 
ity because of the discriminatory practices of hospitals there, 
but who would desire to practice medicine in the area if racial 
bars were removed." Cypress v. Newport News General and Non­
sectarian Hospital Association, Inc., 4th Cir., No. 10,672, 
decided March 9, 1967 (en banc), slip opinion p. 6, n. 9.

fCr

23
24
25
26

*However, the pertinent federal decisions involving 
classes numbering somewhat more than fifty persons seem to take the view that that number alone may render it impracticable to 
bring the individual members of the class before the court, and 
so justify a class action. See Tisa'v. Potofsky, 90 F.Supp. 175 
l8l (S.D. N.Y. 1950); Foster v. City of Detroit, 254 F.Supp. 655 (E.D. Mich. 1966).

43 .
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< ;

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; i

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Here, it has been impossible to identify the exact persons in

i
Death Row who fall within the class of indigent, unrepresented 
condemned men; the members of that class cannot come before 
the District Court because the State of California refuses to

:f i !
appoint counsel to represent them, and the size of the class 
itself is subject to indeterminate growth as state-appointed 
counsel withdraw in the cases of capital convicts whose state 
appeals are terminated. Accordingly, the impracticability 
requirement is satisfied.

(3) The second and third prerequisites of Rule 23(a) 
—  the requirements that there be questions of law or fact 
common to the class, and that the claims of the representatives 
be typical of those of the class —  are interrelated, and both 
are satisfied here. The petition.attacks California practices 
and procedures applied at the trial and post-trial stages of 
all capital cases alike, and on grounds that are identical for 
each case.* In the manner of their trials, their post-trial 
confinement, and the limited appointment of counsel here 
challenged as unconstitutional, California has treated these 
petitioners in a common and identical manner. Common and 
typical questions are thus obviously presented. See Anderson- v♦
Albany, 321 F.2d 649 (5th Cir. 1963)5 Potts v. Flax, 313 F.2d

*We, of course, concede the possible appropriateness 
of recognizing subclasses as to the claim that certain of the 
prisoners have been denied their right to counsel; such recog­
nition of subclasses is authorized by Rule 23(c)(4) and clearly^ does not strip the class action as a whole of its plain propriety

44.
V. VTT 7. -rpra



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1 649 (5th Cir. 1963).
(4) As for the fourth prerequisite of Rule 23(a), 

that "the representative parties will fairly and adequately 
protect the interests of the class," little needs be said.
Where, as here, a proposed representative has interests that 
are fully coincident with those of all the members of the class, 
and has no interests that are in any way antagonistic to theirs, 
even a single individual has been permitted to stand for his 
class. See, e.g., Hamer v. Campbell, 358 F.2d 215 (5th Cir.
1966); Cypress v. Newport News General and Nonsectarian Hospital
Association, Inc., supra. In the present case, three of fifty-
nine Death Row inmates seek the appointment of counsel for all 
those unrepresented, as the precondition for vindicating the 
other constitutional rights of each. To this extent, at least, 
it is incontestable that the named petitioners below fairly and 
adequately protect the class: indeed, their fair and adequate 
protection, in the form, of individual representation by counsel 
provided for and responsible to each, is a very object of the 
suit. Perhaps, when further facts appear as a result of the 
inquiry directed by Judge Peckham and such additional investiga­
tion and discovery as may be indicated in the future, interests 
of individual members of the class may appear which make their 
separate representation herein appropriate. Such a contingency 
can be dealt with by the District Court under Rule 23(c)(1), 
(d)(2) if and when it arises. It remains conjectural at this

* . - . • cthreshold stage.

45.
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(5) Under Rule 23(b), the four prerequisites men­
tioned above are the necessary but not sufficient conditions for

1a class action. The class action may be maintained only if, in 
addition to the prerequisites, one of the three circumstances 
described in subsections (b)(1 ), (b)(2), or (b)(3) is met.
We submit that all three subsections are satisfied here. First, 
"the prosecution of separate actions by . . . individual members 
of the class would create a risk of . . . inconsistent or vary­
ing adjudications with respect to individual members of the class 
which would establish incompatible standards of conduct for the 
party opposing the class," within 23(b)(1)(A). Individual 
habeas corpus proceedings plainly might result in inconsistent 
rulings, for example, concerning California's practice com­
mitting unfettered discretion to the jury to impose capital 
punishment, or California's denial to the petitioners of counsel 
in the period between the termination of their automatic state 
appeals and their executions. It is not enough to defeat the 
applicability of subsection 23(b)(1)(A) that such inconsistent 
rulings might eventually be reconciled or overridden by a 
definitive decision of the Supreme Court of the United States 
in one such matter. That possibility exists in each of the 
analogous cases posed as exemplary in the Advisory Committee 
Note to .the 1966 amendment of Rule 23, H 9 (validity of a bond 
issue or assessment; landowner's liability for nuisance), yet 
the class action in such cases is recognized as providing "a 
ready and fair means of achieving unitary adjudication." Ibid.

.. 46.
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• ' •■];- •. . !- '.
'•• '• ' M .- '■ . • ’ - •’ . .■ V . «t * " . < ' •; ''•' > .' ... • lj ’ ‘ .:- •’' • :

'' ' "The desirability of "unitary adjudication" seems the more
obvious here, where there is a significant possibility that
one class petitioner may go to his death following the rejec-

*tion of an identical constitutional claim sustained on behalf 
of another; or, still more shocking, that another class peti-j. ■ Jv
tioner may die without the presentation; of the same claim in 
his behalf, by reason of an alleged, but unadjudicable, uncon­
stitutional denial of the right to counsel. .'j,

(5) Second, the California authorities have "acted
. . . on grounds generally applicable to the class [petitioners],, 
thereby making appropriate final injunctive relief or correspond­
ing declaratory relief with respect to the class as a whole," 
within Rule 23(b)(2). The Advisory Committee's Note to this 
subsection (<ft 12) clearly indicates that the terms "injunctive" 
and "declaratory" are not used in a narrow, technical sense. 
Their purpose is to exclude actions for money damages, and 
"Declaratory relief 'corresponds' to injunctive relief when as 
a practical matter it affords injunctive relief. . ." Ibid.
As we shall show infra, this is precisely the traditional func­
tion of a declaration in habeas corpus that a state practice 
challenged by the writ is unconstitutional. And it can hardly 
be denied that California and its agents have acted with respect 
to the petitioners "on grounds generally applicable to the 
class" with respect to each state practice assailed by the 
present petition.

(6) Finally, "questions of law or fact common to the

47.
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members of the class predominate over any questions affecting
. /only individual members, and . . .  a class action is superior to 

other available methods for the fair and efficient adjudication 
of the controversy," within Rule 23(b)(3). The prevalence of 
common questions is obvious enough. To appreciate it, one 
need only consider how incredibly tedious it would be if each 
of California’s approximately sixty Death Row inmates filed a 
separate habeas petition conforming to the class petition herein

o

and requested separate hearing and argument. The District Court 
would surely consolidate the cases in this situation, or be 
subjected to an interminable replay of essentially the same 
phonograph record. But the purpose .of Rule 23(b)(3) is precisely 
to encompass "those cases in which a class 'action would achieve 
economies of time, effort and expense, and promote uniformity 
of decision as to persons similarly situated, without sacrific­
ing procedural fairness or bringing about other undesirable 
results." Advisory Committee Note to the 1966 amendment of 
Rule 23, IT 12. As for the question whether "a class action is 
superior to other available methods" for resolving the contro­
versy, we shall show in paragraphs (1 1) - (18) of this subsectior 
infra, that the class-action form here is not merely "superior" 
but absolutely indispensable for the vindication of these 
petitioners’ constitutional rights. The plain fact is that the 
unknown, unknowable, unrepresented, ignorant and inaccessible 
forgotten men on Death Row must be heard as a class, for want 
of individual identity. They will be heard together or they

I v 48 .



will be gassed individually. There is no third option. The 
conditions of Rule 23(c), we submit, are abundantly fulfilled.

(7) The question remains whether Rule 23 applies in 
habeas corpus cases. We have shown in subpart A. supra, relating 
to joinder, that Rule 20 does apply, and hence that joint habeas 
petitions are authorized by the Civil Rules. This showing was 
made consistently with the principles of this Court’s recent 
decision in Wilson v. Harris, Wo. 21,365, decided May 10, 1967',*

*In adopting the principles of Wilson v. Harris for 
construction of Rule 01(a)(2) governing the applicability of 
the Federal Civil Rules in habeas corpus practice, we do so 
arguendo. It seems to us, in candor, that Wilson takes an 
unnecessarily stringent view of the.showing that must be made of consistency between a federal rule and pre-1938_habeas 
corpus practice in order to justify the applicability of the 
federal rule in writ proceedings. To insist upon an affirmative 
showing that habeas corpus practice mirrored procedure under a 
federal rule would largely render Rule 81(a)(2) superfluous, 
since the same procedures would be mandated with or without 
reference to the Federal Rules which Rule 81(a)(2) in some 
cases at least intends to make applicable. We note also that: 
(1) decision in Wilson is flatly inconsistent with the decision 
of the Fifth Circuit in United States ex rel. Seals v. Wiman,
304 F.2d 53 (1962). It also appears inconsistent in princxple 
with several decisions applying other Rules of Civil Procedure 
in habeas cases. E.g., Hunter v. Thomas (10th Cir. 19^9)„.
(Rule 59); Bowdidge v. Lehman, 2p2 f .2cT36o (oth Cir. 1^58) 
lRule 56); Abel v. Tinsley, 338 F.2d 51^ (10th Cir. 1§64)
(Rule 60(b)); In re McShane’s Petition, 235 F.Supp. 262 (N.D. 
Miss. 19o4) (Rule 59); Lyles v. Beto, 32 F.R.D. 248 (S.D. Tex. 
1963) (by implication) "(Rule 45(e)”(T)). (2) Counsel for the-
unsuccessful party in Wilson has announced that he will seek 
review of that decision by certiorari in the Supreme^Court.
In view of the conflict among the Circuits on the point, 
certiorari may be granted. See Supreme Court Rule 19(1)(b).
In view of these considerations, Judge Peckham may properly 
conclude, as this proceeding progresses in due course, that 
the decision in Wilson is not the full measure of applicability 
of Rule 23 in the proceeding before 'him.

49.



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1 by demonstrating a consistent pre-1938 practice of* Joinder in 
federal habeas corpus proceedings. The same showing compels a 
conclusion that Rule 23 applies in habeas corpus as well. The 
recent amendments to Rule 23 have made the federal class action 
essentially indistinguishable from a joint action, save as to 
minor matters of convenience. Notice is now required to all 
identifiable members of the class, and each may choose to be 
excluded from the action or to appear personally in it. Rule 
23(c )(2). The final judgment binds all members of the class 
who have not elected to be excluded. Rule 23(c)(3). The 
District Court is empowered to divide a class into subclasses, 
as appears appropriate (Rule 23(c)(4)), and to continue an 
action commenced as a class action in the form of an individual 
or joint action (Rule 23(c)(1), (d)).* It is evident that, 
under ohis scheme, the class action has all the characteristics 
of a joint action (into which it is convertible), except that, 
for the convenience of the Court and parties, some of the 
parties may choose to remain nameless and quiescent. The pre- 
1938 habeas corpus practice of receiving joint petitions, 
therefore, fully supports the maintenance of class actions

*See particularly Rule 23(c)(1): "An order under this subdivision ... . may be altered or amended before the decision 
on the merits." As is made clear by the Advisory Committee's 
repeated reference to "class actions maintained as such to the 
end," Advisory Committee Note to Rule 23 as amended i960,

21, Rule 23 plainly envisages the recognition of a class 
action at early stages of proceedings which may subsequently be 
dissolved when its function has been served or when.-for other reasons its maintenance becomes undesirable.

.-50,



I

1 pursuant to Rule 23 in modern federal habeas practice. And the
2 provision made by'Judge Peckham in his July 5 Order, here

’3 attacked, for the identification of the individual Death Row ;>
4 prisoners at San Quentin and the ascertainment of the status
5 of legal representation of each, may well be the first step by
6 which the proceeding below takes ultimate shape as a joint,
7 rather than "class" action, even in the narrowest technical
8 sense.
9 (8) But we think that, quite apart from the analogy

10 between joinder and cxass actions, the consistency between the
11 class-action form of Rule 23 and pre-1938 habeas corpus practice
12 is demonstrable. In saying this, wq recognize that class peti-
13 tions for the writ cannot be shown to have been used, as such,
14 prior to 1938' But neither have class actions or anything
15 remotely like them been judicially rejected in the traditions
16 of the writ. To the contrary, looking beyond form to the
17 essence of the matter, one finds at least two major themes
18 in habeas corpus practice which assimilate the classic usage
19 of the writ to the functions of the modern-day class suit.
20 First, habeas corpus has always had a public character, akin to
21 that of the class action today. The great writ was process
22 issued so that the King might inquire into the deprivation of
23 liberty of his subject —  a conception that survives today in
24 the symbolic ex rel. form of styling. This tradition is finely
25 summarized in In re Ferrens, 8 Fed.Cas. 1158, No. 4,746 (S.D.
26 N.Y. 1869):

51.



1
1 "it has never been understood that, at common lav;, authority from a person unlawfully
2 imprisoned or deprived of his liberty was necessary 

to warrant the issuing of a. habeas corpus, to in-
3 quire into the cause of his detention. In the case 

of People v. Mercein, 3 Hill 399; 407, the Supreme
4 Court of New York intimates that such authority from 

the person detained is not ordinarily necessary.
5 In Case of Ashby, l4 How.St.Tr. 8l4, the house of 

lords, in England, in 1704, resolved rthat every
6 Englishman, who is imprisoned by any authority what­

soever, has an undoubted right by his agents or
7 friends, to apply for and obtain a writ of habeas 

corpus, in order to procure his liberty by due
8 course of law.' This resolution was assented to 

by the house of commons. Id. 826."
9

10 (9) Second, as the Supreme Court of the United States
11 has recently noted, "it is no accident that habeas corpus has
12 time and again played a central role in national crises, wherein
13 the claims of order and liberty clash most acutely, not only in
14 England in the seventh century, but also in America from our
15 very beginnings, and today." Fay v. Noia, 372 U.S. 391, 401
16 (1963)• What Mr. Justice Brennan has captured in this passage
17 is perhaps the outstanding historical characteristic of the
18 great writ: its use, in every era, to bring before the courts
19 for resolution the largest and most far-reaching issues of the
20 day. The point is as obvious as the roil of its celebrated
21 instances is endless: Ex parte Bollman, involving the Aaron Burr
22 conspiracy; the 1833 Habeas Corpus Act passed to crush Calhoun’s
23 resistance to the Tariff; Ableman v. Booth and the fugitive slave
24 controversy; Ex parte Merryman, in which Chief Justice Taney
25 questioned Lincoln's exercise of the' war power; McCardle’s Case
26 and Milligan1s, threatening congressional and presidential

. j '
52.,

*m’TTY* "



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Reconstruction; Tarble's Case, terminating state resistance 
to the national authority of military conscription; NeagleTs 
Case, denying state authority to determine the fit conduct of 
a federal marshal; Ex parte Endo, terminating the Japanese 
Relocation. Quite apart from these causes celebres, it is a 
long-standing part of the exhaustion doctrine in federal habeas 
corpus practice that state remedies need not be pursued where 
the widespread nature of the issues raised by a petition for 
the writ makes "prompt decision of the issues . . . desirable," 
Frisbie v. Collins,' 342 U.S. 519; 520 (1952),* and particularly 
in cases where "a state statute [is] . . . being made the basis 
of a substantial number of clearly unconstitutional prosecu­
tions."** As explained by Circuit Judge (later Mr. Justice) 
Brewer in Ex parte Keiffer, 40 Fed. 399; 401 (C.C.D. Kan. 1889), 
the basis of this conception is the necessity for expeditious 
and definitive settlement of questions of public importance:
The public, as well as the individual, are interested in speedy 
settlement of this matter." The exhaustion question, of course, 
is discussed in Part III., supra, and is not itself the subject 
of consideration in this Part. But the present significance

*See the. discussion of the exhaustion point approved 
by the Supreme Court in the opinion below, Collins v. Frisbie, 
189 F.2d 464, 468, n. 1 (6th Cir. 1951)-

**Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and Habeas Corpus Juris-' 
tion"to Abort State Court Trial, 113 Ui PA. L. REV. 793; '$94 
(1985). The proposition is amply supported by the cases
collected in id. at 893 nn-. 432-433-

53.



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of this aspect of the federal habeas corpus exhaustion doctrine 
is its explicit, recognition of the fit historical function of 
the great writ to provide a forum for determination of broad 
public issues. It needs hardly be pointed out that this is 
exactly the cardinal function of. the modern federal class action 
as well: "in many controversies during recent years in which
the federal Government has been involved, directly or indirectly, 
the scope ̂ and breadth of the questions have affected numerous 
persons and made this [class action] procedure desirable."
3 MOORE'S FEDERAL PRACTICE, % 2302, at p. 3^09 (2d ed. 1966).
This close operational coincidence between the writ and the 
class suit, we submit, fully justifies the application of 
Rule 23 here.

(10) Even if Rule 23 were not thought applicable in 
habeas cases, however, this would not preclude the use of class 
action habeas petitions. By force of FED. RULE CIV. PR0C. 
81(a)(2), the Federal Rules of Civil Procedure apply to habeas 
proceedings in the district courts io the extent that the 
practice in such proceedings is not set forth in statutes . . .  
and has heretofore conformed to the practice in actions ao lav/ 
or suits in equity."* Rule 81(a)(2) thus limits, to an uncertain

*FED. RULES CIV. PR0C. 81(a)(2), in pertinent part, 
provides: "in the following proceedings appeals_are governed
by these rules^ but they are in&pplicaole otherwise oh&n on 
appeal except to the extent that the practice in such proceed­
ings is not set forth in statutes of tne United States and has 
heretofore conformed to the practice in actions at law or sui^s 
in equity:. . .  habeas corpus . . .

-•, V. ’ j

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extent, the direct applicability of the Federal Rules, But 
where neither statute nor the traditional writ practice establish 
rules appropriate for resolution of claims otherwise properly 
considered in a habeas petition, the District Court must have 
the inherent power to fashion appropriate procedures. This is 
clearly implicit in Rule 81(a)(2) which surely was not intended 
to freeze the development of needed procedures. All Rule 8l(a)(S 
requires is that procedures adopted be consistent with the 
applicable statutes and with "the historic conception of the 
writ, anchored in the ancient common lav; and in our Constitution 
as an efficacious and imperative remedy for detentions of funda­
mental illegality," * and therefore to take care lest "the 
great writ"** come to "lose its effectiveness in a procedural 
morass."*** Petitioners take these expressions by the Supreme 
Court to mean that procedures in habeas corpus matters should 
be adopted, in the exercise of that discretion which the federal 
statutes, rules and traditions leave the district judge, to 
support and further the immemorial office of the writ as a

*Townsend v. Sain, 372 U.S. 293., 311 (1963) (liberaliz­
ing hearing practice in federal habeas corpus).

**So called by Chief Justice Marshall in Ex parte 
Bollman, 4 Cranch 75., 95 (1807), tracing Blackstone's phrase:
"the great and efficacious writ* in all matters of illegal con̂  
finement." 3 BLACKSTONE, COMMENTARIES 131 (6th ed., Dublin 1775)

***Price v. Johnston, 334 U.S. 266, 269 (1948) (libera­
lizing pleading requirements m  federal habeas corpus). See 
also, Jones v. Cunningham, 371 U.S. 236 (1963), adopting liberal 
rules of substitution of parties defendant in habeas corpus.

55-



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“prompt and efficacious remedy for -whatever society deems to 
be intolerable restraints.

(11) While it is obvious and has been amply demon-
vstrated supra, that & joint petition or a clas^ tion ig^he 

only efficient method for the j
issues presented below, ij^is equaily^obvi 
class abtion is morV^han merelyLconvenient Here. It is jan

of a

absolutely indispensible condition of the judicial relief &£

tlie olass petitioners in the District Court-. We must stress —  
T ~P -because the Abtorney-Generai ignores the point entirely —  that 

an unknown number of San Quentin’s Death-Row inmates may be

at *Fay v. Noia, 372 U.S. 391, 401-402 (196S'). 399-400: See id.

"We do well to bear in mind the extraordinary 
prestige of the Great Writ, habeas corpus ad subjiciendum, 
in Anglo-American jurisprudence: ’the most celebrated 
writ in the English law.’ 3 Blackstone Commentaries 129. 
It is ’a writ antecedent to statute, and throwing its 
root deep into the genius of our common law . . .  It is 
perhaps the most important writ known to the constitu- . 
tional law of England, affording as it does a swift and 
imperative remedy in all cases of illegal confinement.
It is of immemorial antiquity, an instance of its use 
occurring in the thirty-third year of Edward I.’ . . . 
Received into our own lav/ in the colonial period, given 
explicit recognition in the Federal Constitution, Art. I,
§ 9, cl. 2, incorporated in the first prant of federal 
court jurisdiction. Act of September 24, 1789, c. 20,
§ 14, 1 Stat. 8l, 82, habeas corpus was early confirmed 
by Chief Justice John Marshall to be a ’great constitu­
tional privilege.’ Ex parte Bollman and Swartwout,
4 Cranch 75, 95. Only two Terms ago this Court had 
occasion to reaffirm the high place of the writ in our 
jurisprudence: ’We repeat what has been so truly said 
of the federal writ: ’’there is no higher duty than to 
maintain it unimpaired," Bowen v. Johnston, 306 U.S. 19, 
26, , and unsuspended, save only in The' 'cases specified in 
our Constitution.’ Smith v. Bennett, 385 U.S. 708, 713-"

56.
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1 goihg^o their deachs unconstitutionally and unrepresented "by 
counsel, without anyone knowing that they are unrepresented and 
have meritorious claims. Virtually all of these men are indigen 
Some are functional illiterates. They lack not merely the 
comprehension requisite to understand their legal position and 
to draft the legal papers needed to protect.what rights they 
may have; they lack evenAthe minimal me.ntal̂ wherewxthaJU- Some 
have been abandoned without effective notice by appointed 
counsel under California's limited appointment practice. Due 
to their incarceration, poverty, legal ignorance and illiteracy, 
death row prisoners cannot keep in touch with their lawyer’s 
conduct of their matters, and they may believe a lawyer is 
acting for them when he is&not. Most would not know how to 
begin the business of finding a lawyer. Their poverty, coupled 
with the failure of the State of California to provide free 
legal counsel past the stage of the first appeal from conviction,
casts them on the mercy of the few lawyers who would be willingiito handle their cases gratuitously, and even these few lav/yers 
are unknown to them.

"5? As indicated by the Petition Zas=Bak&6& Corpus-̂  
all of these men have grounds for federal constitu­

tional attack upon their death sentences, raisable in collateral- 
attack, proceedings, which must at the very least be characterized 
as substantial. Numerous of the class petitioners doubtless 
have other state and- federal grounds'for complaint against 
their convictions and sentences that would be cognizable in

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state or federal habeas corpus proceedings. Nevertheless, and 
despite the indigency and illiteracy of the Death-Row population. 
California declines to appoint counsel for these men at the 
"critical stage"* of their proceedings encompassing the period 
between termination of their state appeals and their execution. 
By reason of their poverty, they are denied the services at 
this vital time of an attorney whom a wealthy convict might 
employ5®- to exhaust all the avenues of possible state and federal 
postconviction relief.
~  ~~ (13) Of the approximately sixty men now on Death

Row, it is believed that thirty-seven are still in the state 
appellate process, and presumably are represented by lawyers. 
Among the remaining prisoners, whose appellate course has run, 
some may have attorneys representing them gratuitously.
(Counsel for petitioners represent some men in this group 
individually.) Others may have pro se state or federal*or 
habeas corpus petitions pending. We cannot know and this 
Court cannot know how many and which inmates of Death Row at 
this moment are unrepresented despite meritorious claims. In 
In its class-action aspect, our petition below is designed to 
discover those men, to provide them with counsel, and to

*Cf. Hamilton v. Alabama, 368 U.S. 52 (1 9 6 1); White 
v. Maryland, 373 U.S. 59 (19^3)5 Escobedo v. Illinois,
"378 U.S. 478 (1964). —  *

**Cf. Douglas v. California, 372 U.S. 353 (1963); 
Swenson v. Bosler, 35 U.S.Law Week 3320 (U.S., March 13,
T9'67).—  -------

58:



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vindicate their claims. We cannot know and the Court cannot
I • • • •

know how many and which inmates of Death Row may helplessly and 
quietly go to their deaths tomorrow for want of adequate repre­
sentation. The petition below is designed to identify those men, 
to stay their imminent execution,. and to assure that they have 
or understandingly'waive* the services of an attorney to review 
their cases before their lives are taken. We cannot know and 
the Court cannot know how many and which inmates of Death Row 
are now confined in the utterly hopeless, mind-destroying 
desperation of the forgotten and condemned. The petition below 
is designed to relieve them of that intolerable —  and, we shall 
submit, unconstitutional -- confinement.
C. The joinder and class action below are appropriate because 

the proceeding in the district court is one for injunctive 
and declaratory relief, as well as for habeas corpus.

We have shown at pp. 34-41 supra, that the joinder in 
the proceedings below is fully warranted under the terms of 
Rule 20 of the Rules of Civil Procedure and the maintenance of 
a class action fully warranted by Rule 23. Whatever view one 
may take of the applicability of those rules in habeas proceed­
ings, they plainly apply to the action below insofar as the 
petitioners in the District Court sought injunctive and 
declaratory relief. We show in part V. infra that the

*See Johnson v. Zerbst, 304 U.S. 458, 464 (1938); 
Carnley v. Cochran, 389 U._S. 506, 513-517 (1962); Westbrook v. 
Arizona, 384 U.S.~'15Q (1966); Swenson v. Bosier, noue 12 supra,

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1 jurisdiction of the District Court to entertain the case before 
it as one for an injunction and/or a declaration is undisputable 
It follows that the Attorney General’s objections to the joinder 
and class-action aspects of the proceeding in the District 
Court are ill-taken, for this alone if for no other reason.
D. The joinder and class action issues are not, in any event,

questions of jurisdictional dimension.
What we have said demonstrates that the Attorney 

General’s simplistic contention that neither joinder nor class 
actions are ever applicable in habeas actions is erroneous.
But this Court need not —  indeed, ought not —  reach that 
question when Judge Peckham has not.had an opportunity to do so. 
It is enough that Judge Peckham recognized the complexity of 
these matters and concluded that the stay should issue pending 
their resolution. The wisdom of this decision is reinforced by 
the nonjurisdictional nature of these issues. At most, they 
involve no more than an interpretation of Rules 20, 23, and 
81(a)(2) of the Federal Rules of Civil Procedure. Even if Judge 
Peckham were to err in his interpretation of the Rules, there 
would be no breach of his jurisdiction —  only an error properly 
reviewable on appeal of a final order.* The present case is

*Rule 21 expressly provides that there shall be no 
dismissal on the ground of misjoinder. Inasmuch as the class 
action procedures do not, in any material sense, differ from 
the joinder rules there is no basis for assuming -- in the 
absence of either reason or precedent, neither of which the 
Attorney General has provided —  that the class action point is 
jurisdictional.

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1I a fortiori for, as we have earlier observed, Judge Peckham 
has done no more than to exercise his jurisdiction to make an 
initial determination as to these procedural questions. We 
do not wonder that the Attorney General is unable to cite a 
single case in which an extraordinary writ was used to review 
such a threshold decision.

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V.

THE DISTRICT COURT PLAINLY HAD JURISDICTION 4 '
TO CONSIDER THE APPLICATION BEFORE 

IT FOR DECLARATORY AND 
INJUNCTIVE RELIEF

The Attorney General recognizes that the petition 
below is not based exclusively on habeas corpus jurisdiction. 
Indeed, the initiating pleading in the District Court is en­
titled "Petition for Habeas Corpus, for Injunctive Relief for' 
Declaratory Judgment, and other Appropriate Relief." And, in 
his order, Judge Peckham, under the title "Nature of Relief 
Sought," refers specifically to the Injunctive and declara­
tory aspects of the case. (Memorandum and Order of July 5> 
p.3). Additionally, Judge Peckham set July 27, 1967, as the 
date on or before which any of the warden's motions addressed 
to the injunctive and declaratory claims should be filed. 
(Memorandum, p. 7).

The Attorney .General also appears to recognize that his 
Petition for Writ of Mandamus and/or Prohibition; must be 
denied if the district court has jurisdiction to entertain 
a declaratory or injunctive action. The plain provisions 
of 42 U.S.C. sec. 1983 and 28 U.S.C. sec 1343(3) call for 
such jurisdiction. Nevertheless, the Attorney General baldly 
asserts that it Is "clear" that such an action here is improper, 
and then proceeds to advance four reasons for the conclusion.

0

Not one reason has anything to do with the jurisdiction of *

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the district court.
1. The Attorney General observes that the Civil Rights 

Act may not be used to circumvent the habeas corpus requirement 
of exhaustion of state remedies. None of the authorities he 
cites remotely suggest that this is a jurisdictional point.
For example* he relies on Gait v. Straus* 249 F.Supp. 923 
(W.D. Pa. 1966) and even directs this court's attention to 
page 930, where that court expressly held that it had juris­
diction.

Whether or not to require exhaustion of other available 
federal remedies in a federal declaratory or injunctive proceed­
ing is a matter that resides in the. sound discretion of'the 
district court. Delearatory relief has been held to be an 
appropriate substitute for habeas corpus where the person seek­
ing relief could not successfully pursue his federal habeas 
corpus remedy because he had not exhausted all available reme­
dies. Hurley v. Reed * 288 F.2d 844* 847 (D.C. Cir. 1961). As 
for exhaustion of state remedies* Judge Pe'ckham may* or he may 
not, decide to abstain in favor of the California courts. This 
decision* too* is within both his jurisdiction and his dis­
cretion to make. See* e .g.* Baggett v. Bullitt, 377 U.S. 360 
(1964); Dombrowskl v. Pfister, 380 U.S. 479 (1965); Note* The 
Dombrowski Remedy--Federal Injunctions Against State Court 
Proceedings Violative of Constitutional Rights* 21 Rutgers 
L. Rev. 92 (1966); Comment* Federal Injunctions Against State 
Actions* 35 Geo. Wash. L. Rev. 744 (1967). In any event* as



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noted above, Judge Peckham's petitioners have no effective 
state remedy to exhaust.

2. The Attorney General observes that the petitioners 
below have an adequate remedy at law by way of habeas corpus. 
This concession is more than a bit Inconsistent with his insis­
tence that habeas corpus is not available to them. In any event 
the significance of his observation escapes us. Surely the 
Attorney General is not maintaining that the existence of ' 
another remedy deprives the district court of jurisdiction. ^
Rule 57 of the Federal Rules of Civil Procedure provides:

The existence of another adequate remedy 
does not preclude a judgment for declar­
atory relief in cases where it is appro­priate. ’

*  *

And see Katzenbach v. Me Clung, 379 u.S. 294, 296 (1964); Delro 
v_._Market Ry. Co., 124 F.2d 965(9th Cir. 1942); Edwards v. 
MadTgan, 187 F.Supp. 688, 689 (N.D. Cal. i960); Cohen v.
NgTTis, 300 F.2d 24, 34 (9th Cir. 1962). ^  :

Declaratory judgmsnt may be appropriate relief even where 
habeas corpus is available. Packer v. Bisson. 348 F.2d 602,
607 (5th Cir. 1965); Hurley y, Reed, supra, at 847-48.

-Van Buskirk v, Wilkinson, 216 F.2d 735 (9th Cir. 1954), 
cited by the Attorney Genera], does not contradict the unam­
biguous language of Rule 57, nor is it inconsistent with all 
established precedent. In that case, the court did not have 
jurisdiction because the petition did "not contain any allega­
tion whatsoever of any amount in controversy.*" id at 737

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• . . • f * ‘ '
• •• , . ' / '/»

The court went on to observe that habeas corpus was an avail­
able remedy;^ and it did not even suggest that its availability 
affected jurisdiction.

3. The Attorney General informs us that "res judicata 
is applicable" in declaratory and injunctive actions and that 
it "may be used to prevent" relitigation of the issue of 
confinement. Perhaps it may. It is an affirmative defense 
and does not go to the district court's jurisdiction.

The raising of the issue of res judicata by this petition
for prerogative writs is another unfortunate illustration of
the Attorney General's attempt to subvert and avoid legitimate
judicial process. In his order, Judge Peckham required his
petitioners to file on or before July 17, "1967, an amended
petition setting forth with specificity the manner In which
state remedies have been exhausted, and a memorandum "setting
forth their arguments In respect to the inherent procedural
problems." (Memorandum and Order of July 5, p.6). The exhaus-

*tion issue is, of course, relevant to any questions of res 
judicata or estoppel, and thosedoctrines may be among "the 
inherent procedural problems" recognized by Judge Peckham. This 
is all the more reason why reflective and considered judgment- 
on those problems should and must be reserved for the district 
court.

Petitioner does not assert that the affirmative defense of 
res judicata can affect a -court's jurisdiction. Such an asser­
tion would be bizarre, particularly where, as In the Instant

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case, the defense has not been properly raised. Petitioner 
has not even filed with the district court abstracts of judgment 
establishing that -:there has been a prima facie valid conviction 
of the petitioners below. Without such abstracts and without 
transcripts of the trials, Respondent cannot pass on the res 
judicata question. Basista v. Weir, 340 F.2d 74, 8l (3rd Cir. 
1965). And even if res judicata were properly raised and es­
tablished, it would not affect the district court's jurisdiction. 
See McClain v. Lance, 146 F.2d 341, 343 (5th Cir. 1944), cert, 
denied, 325 U.S. 855 (1945). Cf_. England v. Louisiana' Medical 
Examiners, 375 U.S. 4ll (1964).

4. The Attorney General states that the "defense of 
official immunity is available . . . and may be invoked." The 
simple answer is that it has not been invoked. The Attorney 
General will have ample opportunity to "invokethat defense 
before the district court. Like res judicata, this is a defense 
to be considered in due and ordinary course by Judge Peckham.
See Urbano v. Calassi, 353 F.2d 196, 197 (3rd Cir. 1965). An 
this court, in Hoffman v. Halden, 268 F.ed 280, 289 (9th Cir. 
1959) found jurisdiction in the district court and then affirmed 
some findings of immunity and reversed others.

And when the Attorney General invokes immunity, he will 
find it unavailing, Hoffman v. Halden, supra; Delaney v.
Shobe, 235 F.Supp. 662 ,(D. Ore. 1964). Those cases involved 
suits against a warden for money damages. The doctrine of im­
munity applies only when officials are faced with civil suits

66.



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for damages In connection with performance of their official 
duties. It has no application where, as here, the -relief sought 
is injunctive or declaratory. Cooper v. Pate, 378 U.S. 546 ; . 
(1964). The point is hardly debatable. See, e.g., Ex parte
Young, 209 U.S. 123 (1908); Cooper v. Aaron, 358 U.S. 1~' i
(1958); Lucas v. Forty-Fourth General Assembly of State of 
Colorado, 377 U.S. 713 (1964); Baggett v, Bullitt, supra; 
Dombrowskl v. Pfister, supra.

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V I .

BECAUSE THIS COURT LACKS JURISDICTION TO 
REVIEW ORDERS OP THE DISTRICT COURT IN 
THE PROCEEDING PENDING BELOW INSOFAR AS '
IT IS ENTERTAINED AS AN' ACTION FOR IN­
JUNCTIVE AND DECLARATORY RELIEF, IT IS 
ALTOGETHER INAPPROPRIATE FOR THE COURT 
TO REVIEW JUDGE PECKHAM'S ORDER PRIOR TO 
THE TIME WHEN HE HAS DECIDED WHETHER TO 
ENTERTAIN IT AS SUCH.
The point just made in Part V, supra, that the pro. 

ceeding pending before the District.Court is properly within
its jurisdiction as an action for injunctive and declaratory 
relief, as well as for habeas corpus, has obvious implications 
for the jurisdiction of this Court to review Judge Peckham's 
interlocutory rulings by prerogative writ proceedings. As we 
have pointed out in that Part V, the proceeding below is a 
hyorid action. Relief by writ of habeas corpus, a declaratory 
judgment and an injunction are all sought by the petitioners in 
the District Court. : sl­

it is clear from Judge Peckham's order that he has 
not yet determined whether to entertain the action as a petition 
for habeas corpus or as a complaint for;declaratory and injunc­
tive relief, or both. If the action is.entertained as a habeas 
:ase,..:there will be no need to convene a three-judge court, even 
-hough the constitutionality of California Penal Code §§ 190 and

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190.1 are being challenged. United States ex rel. Murphy v.
1

Warden, 29 F. Supp. 486, 489 (N.D.N.Y. 1939), aff1d.,
108 F.2d 86l (2d Cir. 1940); United States ex rel. Lalno v. 
Warden, 240 F. Supp. 72, 92 n. 16 (S.D.N.Y. 1965), aff'd per 
curiam on opinion below, 355 F.-2d 208 (2d Cir. 1966); ■
United States ex rel. Watkins v. Pennsylvania, 214 F. Supp 913, 
916-917 (W.D. Pa. 1963) (alternative ground); c f Specht v. 
Patterson, 87 Sup. Ct. 1209 (1967). If, however, Judge Peckham 
should find that the habeas corpus form is inappropriate, he 
would be required, under 28 U.S.C. § 2281, to convene three 
Judges to decide the question whether or not the petition suf­
ficiently states a claim for injunctive relief. One Judge could 
not decide that question adversely to the petitioners below. 
Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713 (1962); 
Stratton v. St. Louis Southwestern Ry, Co., 282 U.S. 10 (1930); 
Reed Enterprises v. Corcoran, 354 F.2d 519 (D.C. Cir. 1965); 
Hatfield v. Bailleaux, 209 F.2d 632, 634 fn. 2 (9th Cir. 1961). 
Wor, of course, could one Judge decide it in the petitioners' 
favor and grant a preliminary or permanent injunction; although, 
if a three-judge court is going to be convened, the stay of 
execution ordered by Judge Peckham, on July 5, 1967, would be 
inappropriately continued as a temporary restraining order 
authorized by 28 U.S.C. § 2284(3) (1964).

Had Judge Peckham's order of July 5th been expressly 
based on 28 U.S.C. § 2284(3), this Court would plainly lack 
Jurisdiction to vacate it. Only a three-Judge court, or the

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Supreme Court of the United States, could do that. This Court 
gains jurisdiction to review interlocutory orders of the 
District Court in an ordinary case by prerogative writ under 
-28 U.S.C. § 16 51. The theory of the prerogative writ in such 
cases is that it is in aid of the jurisdiction of the Court of 
Appeals to review the final judgment in the case by appeal under 
28 U.S.C. § 1291. But if the proceeding below is viewed in 
its injunctive and declaratory aspect,'the review of any final 
three-judge order in the case lies only in the Supreme Court.
28 U.S.C. § 1253. Thus only the Supreme Court has jurisdiction 
under 28 U.S.C. § 1651 to issue prerogative writs in order to 
review interlocutory orders.

It is true that Judge Peckham1s July 5th Order was not 
expressly rested on 28 U.S.C. § 2284(3). But his power under 
that section was reserved explicitly only because he thought the 
stay he granted would preserve the status quo pending his deter­
mination of procedural questions in the case, including the 
question whether the case was one for three judges. The decision 
still unmade by Judge Peckham, whether to convene a three-judge 
court, is committed by statute not to this Court but to Judge 
Peckham and the Chief Judge of the Circuit. 28 U.S.C. § 2284(1). 
Since jurisdiction to determine that question resides elsewhere, 
this Court should not interject itself at an interim stage of 
the determination and preempt the question. That is precisely 
what the Attorney General is asking this Court to do. Dissatis- 
fied with leaving the three-judge question in the hands where

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Congress placed it3 he wants the Court to short-cut Judge 
Peckham’s deliberation on that issue--as on all others--and for 
no better reason than his anxiety to exterminate the petitioners 
below pending disposition of their claim of a right to a judicial 
hearing. The Court should not lend its process to such an un­
seemly and .wholly unjustified practice.

CONCLUSION 1—— . . . »  . . .  .. —  -  !' .
The Attorney General1s Petition for Writ of Mandamus

and/or Prohibition should be denied.. * . ‘ ■" •• • .  V ’ ••• -j .
Dated: July 10, 1967.

•, Respectfully submitted,

Anthony G. 'Amsterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania

_ 7Terome B. Falk, Jr. 
Hartford Building 
650 California Street 
San Francisco, California 
Telephone: 434-1600

Roy Fisertnardt 
333 Pine Street 
San Francisco, California 
Telephone: 981-3722

Harry /T . /Kr earner
1035 Russ BuildingSan Francisco, California

71.



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/Garyi D. Berger?
One Kearnjy Street 
San Francesco, California

Paul N . Halvohik 
503 Market Street 
San Francisco, California

Richard Bancroft
311 California Street
San Francisco, California
Garfield Stewart, Chairman 
Legal Redress Committee 
N.A.A.C.P. Center City Branch 2006 Sutter Street, . .
San Francisco, California
Jack Greenberg
Leroy D. Clark C
Charles S . Ralston
N.A.A.C.Po Legal Defense & Educational Fund, Inc.
10 Columbus Circle, Suite 2030 
New York, New York,

ATTORNEYS FOR PETITIONERS ' .
Nathaniel Colley
Western Regional Counsel, N.A.A.C.P, 
1617 Tenth Street 
Sacramento, California,
OF COUNSEL

72.