Page:Coalition of Clergy, Lawyers, and Professors v. Bush.pdf/7

 by intruders or uninvited meddlers, styling themselves next friends. United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir.1921); see also Rosenberg v. United States, 346 U.S. 273, 291–92, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953) (denying stranger the right to bring petition on behalf of the Rosenbergs, because there was no authorization); United States ex rel. Toth v. Quarles, 350 U.S. 11, 13 n. 3, 76 S.Ct. 1, 100 L.Ed. 8 (1955) (granting next-friend standing to sister on behalf of prisoner in Korea); Gilmore v. Utah, 429 U.S. 1012, 1013–14, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (recognizing, for purposes of stay, next-friend standing of mother on behalf of prisoner); Evans v. Bennett, 440 U.S. 1301, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (Rehnquist, Circuit Justice) (recognizing, for purposes of stay, next-friend standing of mother on behalf of prisoner); Hamilton v. Texas, 485 U.S. 1042, 1042, 108 S.Ct. 1761, 100 L.Ed.2d 187 (1988) (recognizing next-friend standing of mother on behalf of prisoner); Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (denying next-friend standing to parents on behalf of prisoner, when there was no showing of mental incompetence); Vargas v. Lambert, 159 F.3d 1161, 1163 (9th Cir.1998) (granting next-friend standing to mother on behalf of prisoner); Hamdi v. Rumsfeld, 296 F.3d 278, 281 (4th Cir.2002) (granting next-friend standing to father on behalf of son) (“Hamdi II”).

The practice of allowing next-friend standing also had been long recognized in our Circuit before it was enacted into the habeas statute. In 1928, we considered an application for a writ of habeas corpus that was not signed by the person in custody, but was “made on behalf and at the request of [the prisoner].” Collins v. Traeger, 27 F.2d 842, 843 (9th Cir.1928). On appeal, the state argued that the application, signed by someone other than the person in custody, was defective. We saw the defect, if any, as merely procedural, and since no previous objection had been made, the issue was not preserved for appeal. Id. But we also explained that, under the circumstances, it was implied that the “petition may be made and verified by a person authorized to act on behalf of the one restrained of his liberty.” Id. Moreover, such a position was “supported … by the weight of authority.” Id. (citing Bryant, 273 F. at 916; Dostal, 243 F. at 668; Watchorn, 164 F. at 153).

The Supreme Court surveyed the development of the next-friend doctrine in Whitmore, both at common law and under the federal habeas statute, concluding: "“[N]ext friend” standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest. The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court."

Whitmore, 495 U.S. at 163–64, 110 S.Ct. 1717 (citations omitted).

We have subsequently described the two-pronged Whitmore inquiry as follows: In order to establish next-friend standing, the putative next friend must show: (1) that the petitioner is unable to