Ashmus

dissenting:

Among the defenses pleaded in the district court by Calderon, as warden, and his co-defendants is the “seventh defense,” which asserts: “Defendants allege that the relief sought in the complaint is barred by the Eleventh Amendment to the United States Constitution.”

No court is free to address the merits of a cause until it is satisfied that it has jurisdiction over the subject matter of the case and the parties to the litigation. The district court here claimed jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the Constitution, laws or treaties of the United States) and under 28 U.S.C. § 1343 (a)(3) (action under 42 U.S.C. § 1983 ). The district court did not claim to exercise habeas corpus jurisdiction under 28 U.S.C. § 2254 .

In lengthy findings of fact, conclusions of law and order filed June 14,1996, the district court does not address the defendants’ seventh defense. I will.

The complaint alleges that this action is brought against defendants in their official capacity. Be the action against a prison warden, the Director of the Department of Corrections or the Attorney General of California, these officers act in their official capacity and in…

On April 24,1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214(Act). Troy A. Ashmus, a state prisoner who has been sentenced to death, brought this action on behalf of himself and others who have been sentenced to death in California. Ashmus contends California may not take advantage of certain benefits provided by Chapter 154 of the Act because California has not yet qualified under the provisions of that Chapter. Chapter 154 of the Act applies to federal habeas corpus proceedings filed by state prisoners under sentence of death. The district court held that California does not qualify under Chapter 154, issued a declaratory judgment to that effect, and preliminarily enjoined California from attempting to invoke any of Chapter 154’s benefits. Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.1996).

We have jurisdiction under 28 U.S.C. § 1292 (a)(1) to review the district court’s preliminary injunction. In conducting this review, we first consider whether the Eleventh Amendment bars this suit. We conclude it does not. We also conclude the district court did not err by issuing its preliminary…