telephone. They exchange Christmas and birthday greetings.) Each
petitioner states that he or she cares for Walker as a friend,
and would miss him if he were executed.
The Court is not aware of any authority to support the notion
that lost friendship constitutes an injury sufficient to meet the
requirements of Art. III. Some associational interests are
protected by the Constitution, but these usually involve either
familial relations or associations in pursuit of a First
Amendment right. Roberts v. United States Jaycees, 468 U.S. 609,
617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984)
(discussing "intimate association" and "expressive association."
Id. at 618, 104 S.Ct. at 3249). The Court finds that the threat
of lost friendship in this case is insufficient to support the
finding of an injury-in-fact required for individual standing.
Moreover, the prudential limitations on jus tertii standing
apply to this case. To find standing, the Court must determine
whether "the enjoyment of the right is inextricably bound up with
the activity the litigant wishes to pursue" and "the relationship
between the litigant and third party may be such that the former
is fully, or very nearly, as effective a proponent of the right
as the latter." Singleton, 428 U.S. at 115, 96 S.Ct. at 2874.
Thus a physician may, in an action to protect his ability to
perform abortions, assert the rights of his patients to have
abortions. Id. A licensed beer vendor, who has lost the business
of male customers between the ages of 18 and 20, may claim that
the law discriminates invidiously against those young men by
illegalizing their purchase of beer from him. Craig v. Boren,
429 U.S. 190, 192-97, 97 S.Ct. 451, 454-57, 50 L.Ed.2d 397 (1976).
So, too, may a professional fund raiser, who will lose the
business of charities whose expenditures for fund raising have
been limited, assert the unconstitutionality of the limitation as
a violation of the client charities' First Amendment rights.
Secretary of State of Maryland v. Joseph H. Munson Co.,
467 U.S. 947, 954-59, 104 S.Ct. 2839, 2845-48, 81 L.Ed.2d 786 (1984).
("Munson's interests in challenging the statute are consistent
with the . . . interests of the charities it represents." Id.)
The relationship between petitioners and Walker, however close,
fails to satisfy the prudential requirement that Walker should
assert his own rights. While the rights petitioners assert on
behalf of Walker implicate his interests under the Fifth, Sixth,
Eighth and Fourteenth Amendments, none of these interests is
affected by the threatened loss of friendship. Therefore, the
inextricable link is missing.
Nor is it clear that petitioners would assert rights consistent
with Walker's. Walker chooses not to attack his sentence. That
choice is his to make unless he has been rendered incapable of
acting in his own interests, in which case, petitioners may act
as his next-friend, as discussed later in this opinion. If Walker
is before the Court through a next-friend, it is unnecessary and
inappropriate for anyone to assert his rights as jus tertii. See,
Smith v. Organization of Foster Families, 431 U.S. 816, 841 n.
44, 97 S.Ct. 2094, 2108 n. 44, 53 L.Ed.2d 14 (1977) ("Ordinarily,
. . . a party would not have standing to assert the rights of
another, himself a party in the litigation; the third party
himself can decide how best to protect his interests." Id.).
Finally, the last requirement for allowing jus tertii standing
is absent: some "genuine obstacle" to the third party's assertion
of his own rights. An obstacle that impairs the third party's
decision making would make next-friend standing appropriate.
Short of such an extreme impairment, the Court finds no obstacle
to Walker's assertion of his own rights. Walker has written to
the Court, stating that he opposes these proceedings. He could
just as easily have ratified the petition if that were his
choice. Considerations of privacy, Singleton v. Wulff, 428 U.S.
at 117, 96 S.Ct. at 2873; Eisenstadt v. Baird, 405 U.S. 438, 446,
92 S.Ct. 1029, 1034, 31 L.Ed.2d 349 (1972); NAACP v. Alabama,
357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958);
imminent mootness, Singleton, 428 U.S. at 117, 96 S.Ct. at 2875;
fear of prosecution, Craig v. Boren, 429 U.S. at 196-97,
97 S.Ct. at 456-57; Eisenstadt at 446, 92 S.Ct. at 1034; or
"chilled" expression, Munson, 467 U.S. at 956, 104 S.Ct. at 2846,
do not apply here. No obstacle bars Walker from pursuing his
post-conviction remedies, unless his choice to forgo those
remedies arises from some incapacity. "The Art. III aspect of
standing also reflects a due regard for the autonomy of those
persons likely to be most directly affected by a judicial order.
The federal courts have abjured appeals to their authority which
would convert the judicial process into `no more than a vehicle
for the vindication of the value interests of concerned
bystanders.'" Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 473, 102 S.Ct.
752, 759, 70 L.Ed.2d 700 (1982). (Citations omitted). If Walker
has competently chosen not to assert his rights, then petitioners
have no standing to assert them for him. Gilmore v. Utah,
429 U.S. 1012, 1014, 97 S.Ct. 436, 437, 50 L.Ed.2d 632 (1976)
(Burger, C.J., concurring).
B. CITIZEN STANDING
Petitioners also allege that the "public and judicial interests
in preventing the execution of an individual pursuant to an
unconstitutional statute weigh heavily in favor of allowing
petitioners to challenge the Illinois death penalty statute on
Mr. Walker's behalf." Their position is that even if Walker does
not want to pursue his federal habeas corpus remedy, his decision
to "waive" that right should not prevent the Court from hearing
a matter involving public interests of the highest degree. Such
rights, they claim, are not waivable, and therefore this Court
should follow a number of state court decisions and hear this
case whether or not Walker joins in the petition.
Petitioners may be correct in stating that a number of state
courts have refused to accept a defendant's waiver of appellate
remedies in capital cases under a variety of circumstances, but
their arguments ignore the critical differences between those
courts and this Court. First, this is a federal court, with its
jurisdiction limited by the case or controversy requirement of
Art. III and the necessity of an injury-in-fact to the litigant
who claims standing. Second, this Court has no appellate
jurisdiction over the Illinois courts, which have already heard
this case. The scope of review on appeal differs from that in a
habeas action, see, e.g., Stone v. Powell, 428 U.S. 465, 96 S.Ct.
3037, 49 L.Ed.2d 1067 (1976), and a federal habeas court has no
supervisory jurisdiction over the state courts. Finally, there is
nothing to stop Walker from bringing these claims to this Court's
attention on his own behalf. This case differs from cases where
a condemned prisoner, properly before a court, suddenly withdraws
his appeal or seeks to waive a mandatory state appeal. Compare
Hammett v. Texas, 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086
(1980), with Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16
L.Ed.2d 583 (1966).
Petitioners, in asserting the public interest, even without an
injury to themselves, essentially seek "citizen standing."
Because of the public interest and the purported non-waivable
nature of the habeas remedy, they assert that "it is entirely
appropriate for the petitioners to have standing before this
court." In Valley Forge, the Supreme Court considered an argument
that circumstances demanded "special exceptions from the
requirement that a plaintiff allege `distinct and palpable injury
to himself that is likely to be redressed if the requested relief
is granted.'" 454 U.S. at 488, 102 S.Ct. at 767 (citations
omitted). The Court responded that such an argument carried an
philosophy that the business of the federal courts is
correcting constitutional errors, and that "cases and
controversies" are at best merely convenient vehicles
for doing so and at worst nuisances that may be
dispensed with when they become obstacles to that
transcendent endeavor. This philosophy has no place
in our constitutional scheme . . . "the assumption
that if respondents have no standing to sue, no one
has standing, is not a reason to find standing." This
view would convert standing into a requirement that
must be observed only when satisfied.
Id. at 489, 102 S.Ct. at 767 (citations omitted). The Court
rejected the notion that "judicial power requires nothing more
for its invocation than important issues and able litigants." Id.
If Walker is unable to think and decide for himself, then others
may assert his interests as next-friend. But if he is competent,
Walker retains his autonomy and remains the best and only
champion of his rights. The mere importance of the issues does
not confer on this Court any authority to set aside a state court
sentence without the presence of the only party whose rights are
implicated by the execution of that sentence.
Accordingly, the Court finds that petitioners have no standing
as individuals to attack the legality of Walker's capital
sentence in this Court.*fn2
C. NEXT-FRIEND STANDING
As a second basis for standing, petitioners bring this habeas
action as "next-friends" of Charles Walker.
28 U.S.C. § 2242 provides that: "Application for a writ of
habeas corpus shall be in writing signed and verified by the
person for whose relief it is intended or by someone acting in
his behalf." (Emphasis added). The next-friend device is
infrequently used, but, under certain conditions may be useful,
or even necessary. United States ex rel. Toth v. Quarles,
350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955) cited in Weber v. Garza,
570 F.2d 511, 513 (5th Cir. 1978). The restrictions on
next-friend filings are many. The next-friend may not file if the
detainee, himself, could file a petition. Weber, id. The number
of cases which concern next-friend filing in death penalty cases
are few.*fn3 The law that has developed from these cases has
recognized that two inquiries must be made before a next-friend
petition can be entertained, that is, before the parties have
standing to bring the action.
The next-friend applicant must, in the petition, satisfy the
following requirements. First, there must be an explanation
showing "(1) why the detained person did not sign and verify the
petition and (2) the relationship and interest of the would be
`next-friend.'" Weber, 570 F.2d at 513-14. Second, the applicants
may not use the next-friend device for the unauthorized practice
of law. "The `next-friend' expedient, which on occasion may be
essential to the efficacy of the `Great Writ,' may not be so
abused as to unleash on the courts a quasi-professional group of
lay writers who seek to right all wrongs, both real and
imagined." Id. at 514. Without the required showing for the need
to "resort to the next-friend device, the court is without
jurisdiction to consider the petition." Id.
Because of the "obviously irreversible nature of the death
penalty," this Court will resolve all doubts as to legal issues
in favor of granting a stay; however, there must be authority for
the Court to so act. Evans v. Bennett, 440 U.S. 1301, 1303-4,
1306, 99 S.Ct. 1481, 1482-3, 1484, 59 L.Ed.2d 756 (1978)
(Rehnquist, J. Opinion in Chambers). Moreover, the Court is also
guided by District Court Rules for the Disposition of Petitions
for Habeas Corpus Brought Pursuant to 28 U.S.C. § 2254 in Cases
Involving Petitioners Under a Sentence of Death, promulgated by
the Seventh Circuit.
Applying the standards of the next-friend test to this case,
the first prong of the initial requirement is to determine if the
petitioners have adequately addressed the question "why the
detained person did not sign and verify the petition. . . ."
Weber, 570 F.2d at 513.
In their original petition, and supplement thereto, the
petitioners assert next-friend standing by claiming that the
conditions of Walker's confinement on death row "have impeded and
violated Mr. Walker's ability to freely and voluntarily exercise
his constitutional rights, including his right to pursue state
post-conviction and federal habeas corpus remedies." (Next-friend
petition at para. 11, pp. 6-7.)
The Supreme Court, in Rees v. Peyton, 384 U.S. 312, 86 S.Ct.
1505, 16 L.Ed.2d 583 (1966), set forth the standard to be used by
a reviewing court to determine whether the person has the mental
capacity to choose not to pursue further appeals and collateral
attacks upon his conviction and sentencing. The standard is:
[W]hether he has capacity to appreciate his position
and make a rational choice with respect to continuing
or abandoning further litigation or on the other hand
whether he is suffering from a mental disease,
disorder, or defect which may substantially affect
his capacity in the premises.
Id. at 314, 86 S.Ct. at 1506. Therefore, the sole determination
is whether Walker has the capacity to make a rational choice in
his decision to forego further review of his sentence. If his
capacity is challenged, it must be, under the terms of Rees,
challenged by a showing that Walker suffers from a "mental
disease, disorder or defect." Id. Following the analysis of Rees,
this Court will discuss the issue in terms of Walker's
"capacity," although other courts have used the term "competency"
in their reviews.
As Justice Rehnquist stated in the case concerning Jesse
Bishop, Lenhard v. Wolff, 443 U.S. 1306, 1308, 100 S.Ct. 3, 4, 61
L.Ed.2d 885 (Sept. 7, 1979) (Opinion in Chambers); "A successful
attack on Bishop's competency is the requisite threshold for
applicants' [next-friend] standing." This Court will, therefore,
limit its review on the question of standing of these
next-friends in the same manner. "[T]he initial barrier to be
overcome in the present case by [the next-friend] applicants . .
. is the finding of the courts which have passed on the question
that defendant . . . is competent to waive the assertion of any
constitutional infirmities in the sentence imposed upon him. . .
The Court, therefore, rejects petitioners' assertions of
next-friend standing to the extent that they rely upon the second
test set out in Smith v. Armontrout, 812 F.2d 1050 (8th Cir.
1987) adopted from the analysis in Groseclose v. Dutton,
594 F. Supp. 949 (M.D.Tenn. 1984). The Eighth Circuit in Smith v.
Armontrout created an artificial second avenue for determining
next-friend standing. In its analysis of the issue of the
defendant's decision to forego further review, the court stated:
This inquiry resolved into two questions: first,
whether Smith had the capacity to appreciate his
position and make a rational decision, or was
suffering from a mental disease, disorder, or defect
that substantially affected his capacity, see Rees v.
Payton, 384 U.S. at 314, 86 S.Ct. at 1506; and
second, whether the conditions of his confinement
rendered his decision involuntary. See Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461
(1938); Groseclose ex rel. Harries v. Dutton,
594 F. Supp. 949, 953, 957, 961 (M.D.Tenn. 1984).
812 F.2d at 1053.