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Did the Sixth Circuit "Fuzzy Dice" Decision Violate Federal Law?:
I blogged yesterday about the Sixth Circuit's recent decision in United States v. Davis, the case striking down Michigan's statute on driving when the driver's vision is obstructed by dangling or suspended objects in the car. Here's a potential new wrinkle: It appears likely that the decision was handed down in violation of a federal statute, 28 U.S.C. § 2403(b), requiring federal courts to give states notice and an opportunity to intervene before ruling that a state statute is unconstitutional.

  28 U.S.C. § 2403(b) states:
In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.
  My understanding is that the court failed to notify Michigan state authorities that it was considering this issue. As I understand it, Michigan only learned of the panel's inclination when the panel handed down its decision on December 19th. If I'm right about this, then it seems pretty clear that the the Sixth Circuit violated the statute. This was (1) a proceeding in a court of the United States, the United States Court of Appeals for the Sixth Circuit; (2) the state was not a party, as the only two parties were the United States and Davis; (3) the constitutionality of a state statute was drawn into question, in that the statute was actually ruled invalid; and (4) the statute affected the public interest, in that it effects the legality of the driving of millions of Michigan residents. And yet it seems the State of Michigan was never notified in any way, much less via the required certification to the Attorney General that permited the State to intervene for argument on the question of constitutionality. (Indeed, not even the parties themselves knew the issue was in play, and there was no argument at all.)

  The next issue is, what's the appropriate remedy for this apparent statutory violation? I did a quick check, and found a few cases where this statute was violated. In those cases, the violation generally led to either reversal or rehearing. For example, in Fordyce v. City of Seattle, 55 F.3d 436, 442 (9th Cir. 1995), the Ninth Circuit held that it was an abuse of discretion for a district court judge to not formally allow a state to intervene in such circumstances. In United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996), the Ninth Circuit granted panel rehearing and allowed briefing by the State of California on the issue of a state statute that had been struck down as void for vagueness. There isn't much on this in the Sixth Circuit, at least based on a quick check, but it will be interesting to see if the apparent 28 U.S.C. 2403(b) violation leads to rehearing either from the panel or the en banc court.
DiverDan (mail):
The question is, who will request a rehearing? Certainly not the United States - it won the case, since the conviction was upheld. Davis might, but since the panel ruled against him on the only issue he raised, and the constitutionality issue doesn't help him, he could hardly be expected to seek rehearing on that issue. So, will the State of Michigan seek to intervene for the first time after an opinion is issued in order to seek rehearing? That would certainly be unusual, but one would hope not as unusual as what this rogue panel of the Sixth Circuit did.
12.30.2008 1:28pm
DiverDan (mail):
If I were the Attorney General of Michigan, I might be sorely tempted to issue an AG Opinion that the Sixth Circuit ruling is not binding on the State as a matter of Due Process, since the State was denied both its Constitutional and Statutory right to timely intervene to defend the Statute - direct all Michigan Law Enforcement personnel to continue enforcing the law as written. This would give a great big bird to the Sixth Circuit Panel for the gross precedural irregularity which it engaged in - and most richly deserved, IMHO.
12.30.2008 1:33pm
man from mars:
Very interesting. Good catch.
12.30.2008 1:40pm
Dilan Esper (mail) (www):
Diver:

The problem with that approach is that the ruling certainly is binding, as only the Sixth Circuit or the Supreme Court has the power to enforce the terms of this statute. Also, even if the statute was violated, that doesn't necessarily make it a due process violation; while it drives me and other lawyers nuts, courts make rulings based on issues not raised in the papers all the time.

They should, however, petition for rehearing.
12.30.2008 1:43pm
Patrick216:
I'm glad that the Sixth Circuit has nothing better to do than go off the reservation and issue goofy rulings that specifically involve fuzzy dice, even though the actual item hanging off Davis's windshield was a tweety bird.
12.30.2008 1:52pm
MW:
Depends on what you mean by "binding." A ruling of the Sixth Circuit binds federal courts in the circuit but not state courts.
12.30.2008 1:56pm
loki13 (mail):
OK,

Thank you for bringing this issue to light. While I (unlike you) thought the decision was defensible, it shows the dangers inherent in sua sponte consideration of issues not briefed for the court. I think a rehearing would be a good idea, as Michigan would have a chance to defend their statute.
12.30.2008 1:58pm
Steve:
A ruling of the Sixth Circuit binds federal courts in the circuit but not state courts.

Sure, but let's say you're a state court ruling on the admissibility of evidence obtained pursuant to a search under this statute. You can ignore the Sixth Circuit ruling and admit the evidence if you like, but ultimately a federal court is going to determine that the search violated federal law, so why bother?
12.30.2008 2:06pm
Anon21:
MW:
Depends on what you mean by "binding." A ruling of the Sixth Circuit binds federal courts in the circuit but not state courts.

Incorrect. Any Sixth Circuit precedent in good standing that construes either the United States Constitution or a federal statute which has implications for cases adjudicated by Michigan courts is binding, just as much as a SCOTUS ruling would be.
12.30.2008 2:16pm
neurodoc:
So if someone asked what the law is presently in Michigan with regard to driving with ornaments dangling from their mirror that might obstruct their view, what should they be told? It is legal notwithstanding what is on the books in that state, because the Sixth Circuit has held that the statute is unconstitutionally vague? Or, it was and probably still is illegal under Michigan law, since the state was not given the required opportunity to defend its statute in the federal court proceedings? Or no one can confidently say, so the individual who elects to do it in reliance on the Sixth Circuit's ruling is taking his/her chances?
12.30.2008 2:26pm
OrinKerr:
Any Sixth Circuit precedent in good standing that construes either the United States Constitution or a federal statute which has implications for cases adjudicated by Michigan courts is binding, just as much as a SCOTUS ruling would be.

No, I'm pretty sure that is incorrect. Indeed, you can get a split between state and federal courts in a single jurisdiction on a question of federal law: It generally triggers Supreme Court review, because the states aren't bound by the federal appellate rulings.
12.30.2008 2:28pm
OrinKerr:
Neurodoc: I would say that if you're planning on transporting drugs on Michigan highways, it's probably better to remove your Tweety Bird just in case.
12.30.2008 2:30pm
D.A.:
Orin,
But what about this clause: "and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case,"?

You are right that the other clauses are met, but this was a decision on appeal, and the factual record was closed. Therefore, evidence was NOT "otherwise admissible in the case," and the court was therefore NOT required to "permit the State to intervene."

Or would you read that to mean "evidence [was ever] admissible in the case" and thus the State should have been asked to defend the statute?
12.30.2008 2:35pm
D.A.:
I should add that it seems the district court was probably in violation, if not the Sixth Circuit, if the statute's constitution was brought into question in the case.
12.30.2008 2:37pm
Steve:
You need to quote the whole clause, which reads: "...and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality."

So the State only gets to present evidence if evidence is otherwise admissible (which, obviously, it isn't in an appellate court), but the State gets to intervene for argument on the question of constitutionality in any event.
12.30.2008 2:40pm
OrinKerr:
D.A.,

My 1L CIv Pro professor, Arthur Miller, used to admonish us as 1Ls to "READ ON!" when reading a statute and trying to interpret an isolated phrase. Taking his advice, the full phrase is "intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality." I think that means that the state can intervene for two things: 1) evidence in the event it is admissible, and 2) argument. Indeed, in the cases I looked at, it was common for the state to intervene just for the purposes of making argument.



:
12.30.2008 2:41pm
OrinKerr:
Oh, and District Judge Rosen wasn't in violation: He never considered the issue.
12.30.2008 2:42pm
DiverDan (mail):
As Dilan Esper said,


courts make rulings based on issues not raised in the papers all the time.


I don't disagree that it doesn't happen - hell, it's happened to me twice, both in the Fifth Circuit. But that doesn't make it right, or a legitimate exercise of the judicial power. Both the Supreme Court, in Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“a federal appellate court does not consider an issue not passed upon below.”), and the Fifth Circuit, sitting en banc in United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998)(en banc), (“we review only those issues presented to us; we do not craft new issues or otherwise search for them in the record.“, citing United States v. Johnson, 718 F.2d 1317, 1325 n.23 (5th Cir. 1983)(en banc)), have stated that deciding a case based on an issue neither raised below nor argued in the briefs is improper. Moreover, the claim that this is not a due process violation just doesn't square with Supreme Court precedent.
12.30.2008 2:43pm
Kent Scheidegger (mail) (www):
A Sixth Circuit precedent would be binding and "clearly established" law in a suit in federal district court against a Michigan police officer under 42 USC 1983 for supposedly violating the civil rights of a future fuzzy dice dangler pulled over for violating the state statute. Section 2403 gives the state the right to intervene in this case, and the Michigan AG should exercise that right.

In criminal cases, the state courts can disagree with the lower federal courts, and Fourth Amendment exclusionary rule decisions are generally not reviewable on habeas under Stone v. Powell. California and the Ninth Circuit disagreed on parole/probation search conditions until the Supreme Court settled it in US v. Knights.
12.30.2008 2:44pm
Nunzio:
Boyce Martin. What a great judge. Just ignores federal law (and circuit internal procedures) whenever he wants.
12.30.2008 2:44pm
DiverDan (mail):
Sorry - clicked before I finished (premature posting?).

On the due process issue, the Supremne Court has said that the opportunity to respond is “fundamental to due process.” Nelson v. Adams, USA, Inc., 529 U.S. 460, 466 (2000); Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306, 314 (1950)(“The fundamental requisite of due process is the right to be heard.” quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). By raising the issue of the constitutionality of the Michigan statute for the first time in its Opinion, when it was not raised below and not briefed or argued to the Sixth Circuit, and the State of Michigan was not even given the notice and opportunity to intervene that 28 U.S.C. 2403 requires, the Court effectively denied Michigan any meaningful opportunity to be heard on this issue. That is a classic Due Process violation.
12.30.2008 2:47pm
Oren:
As an aside (since I really have no clue about the procedural merits, although I would hope that, if asked to do so by the AGMI, the 6CA would set aside its own decision), I think Orin really hits the nail on the head with his 2:30 comment.

Not to denigrate your area of expertise, Orin, but so much of it has become an inane inquiry into what counts as a valid pretext for officers seeking to bust people on other matters. Nobody believes that any MI LEO actually wants to enforce this statute, qua itself -- that's absurd. So we twist ourselves into knots because we won't answer the basic question: "when should officers be allowed to conduct an inquiry into (say) drug trafficking on the highway?". The answer to that question surely doesn't involve minor traffic offences or dangling dice.

Sorry for the rant.
12.30.2008 2:49pm
Steve:
I was not aware that the Due Process Clause conferred any rights on the States, let alone a constitutional right to appear and be heard before a state statute may be struck down as violative of the federal Constitution. It seems to me that the right is entirely statutory.

Heck, you might as well argue that any time Congress preempts a state statute, the state can allege a due process violation. That would strike me as a rather novel argument, certainly not "a classic Due Process violation."
12.30.2008 2:51pm
luci:
Based upon the discussion yesterday, Michigan should petition to intervene, and simply request that the panel opinion be vacated and the dicta discussion of the constitutionality of the statute be stricken, as not necessary to the panel's decision on the merits.
12.30.2008 2:56pm
luci:
Based upon the discussion yesterday, Michigan should petition to intervene, and simply request that the panel opinion be vacated and the dicta discussion of the constitutionality of the statute be stricken, as not necessary to the panel's decision on the merits.
12.30.2008 2:56pm
D.A.:
Orin,
Never fear, I did read on. I read that as a combined requirement, evidence AND argument (not "evidence...OR argument", as appropriate) which failed because evidence cannot be presented. Perhaps this is one of those times when AND means OR; I'm a little rusty on my statutory construction.
12.30.2008 2:59pm
neurodoc:
Neurodoc: I would say that if you're planning on transporting drugs on Michigan highways, it's probably better to remove your Tweety Bird just in case.
I have not been in Michigan for something lilke 25 years and wasn't planning on traveling there any time soon, least of all with the intent of transporting drugs by any means. I asked so I might advise others who might wish to undertake it.
12.30.2008 3:05pm
GMS:
AGMI, 6CA, MI LEO -- geez, Oren, you write like you're in the army. Here's hoping the 6CA issues an "Order, Rehearing, 1 EA."
12.30.2008 3:19pm
Houston Lawyer:
Sounds like a Judge Dread moment.
12.30.2008 3:25pm
Joe Hiegel:
Perhaps the panel meant to strike down 28 U.S.C. § 2403(b) too...
12.30.2008 3:33pm
Prosecutorial Indiscretion:
Sounds like a Judge Dread moment.

I knew you'd say that.
12.30.2008 3:45pm
OrinKerr:
DA,

Thanks for the clarifictaion, but your reading of the statute strikes me as very unusual.

Imagine I invite you over to my house. and I say that you can eat if you're hungry and also watch a movie. You come to my house, and you tell me that you're not hungry, but that you would like to watch that movie. In that situation, wouldn't it be a bit bizarre if I construed my offer to mean that if you didn't eat, I wouldn't let you watch the movie? It's not like I conditioned watching the movie on eating: I said you could do two things: 1) watch the movie and, 2) if you're hungry, eat. I think this statute should be interpreted the same way, and it's not surprising to me that this is what the federal courts of appeals have done.
12.30.2008 3:47pm
OrinKerr:
Oren writes:

Not to denigrate your area of expertise, Orin, but so much of it has become an inane inquiry into what counts as a valid pretext for officers seeking to bust people on other matters. Nobody believes that any MI LEO actually wants to enforce this statute, qua itself -- that's absurd. So we twist ourselves into knots because we won't answer the basic question: "when should officers be allowed to conduct an inquiry into (say) drug trafficking on the highway?". The answer to that question surely doesn't involve minor traffic offences or dangling dice.
Ah, but what is the answer?
12.30.2008 3:57pm
AKS:
I had to research this issue just recently. For more cases on the issue, Shepardize or KeyCite FRCP 5.1, the rule that requires parties or the court to serve the federal or state AG with notice that a statute's constitutionality has been challenged. One could argue that the rule doesn't apply to the appellate court judges, but I don't think that would get you very far.
12.30.2008 4:03pm
Gabriel McCall (mail):
what counts as a valid pretext for officers seeking to bust people on other matters

There is no such thing as a "valid pretext". Officers seeking to bust people for other matters may do so when they have probable cause for those other matters. If no such probable cause exists, traffic laws should be enforced (or not) on their own merits.

A legal climate in which any ordinary citizen going peaceably about his business may be stopped and searched at any time, save only for the tolerance of the police, who forbear to enforce most laws except when it suits them to do so, is pretty close to the dictionary definition of a police state.

"when should officers be allowed to conduct an inquiry into (say) drug trafficking on the highway?"

Absent probable cause? When the country passes a constitutional amendment abrogating the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. An amendment authorizing drug prohibition would be handy, too.
12.30.2008 4:38pm
luci:
FRAP 44:

(b) Constitutional Challenge to a State Statute. If a party questions the constitutionality of a statue of State in a proceeding in which that State or its agency, officer or employee is not a party in an official capacity, the questioning party must give written notice to teh circuit clerk immediately upon the filing of the record or as soon as teh question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.
12.30.2008 4:48pm
Oren:
Gabriel, that is not the state of affairs as I understand it. Watch a few episodes of COPS and you will see the familiar refrain:

Officer 1: I just saw my perp drive off in a green car.

Officer 2 (follows green car): We're going to stop this car for improper lane usage, which is a lie.
12.30.2008 5:36pm
Gabriel McCall (mail):
Oh, it's certainly not the current state of affairs. The question I was responding to was "should", not "is".
12.30.2008 5:38pm
New Pseudonym:
It seems to me that no court is bound by the finding that the statute is unconstitutional, even a federal court in the 6th Circuit.

First, as discussed on both threads, the "holding" is dictum. The holding in the case is that the police had a good faith belief that they were enforcing a valid law and therefore the search was proper. How many times have we read something like "A panel of the Sixth Circuit suggested in dictum that the statute was unconstitutional, but we need not consider that . . . "

Second, the "holding" was ultra vires. 28 USC 2403 can be read as a statute limiting the jurisdiction of a federal court to exclude from jurisdiction cases like this unless a condition precedent has been met -- notification of the state in the prescribed manner and admission of the state as a party. Congress has the power to limit the jurisdiction of the court and has done so in the statute.
12.30.2008 5:48pm
Bruce_M (mail):
I'd say "wherein the constitutionality of any statute of that State affecting the public interest is drawn in question" means drawn into question by the parties before the court, not by the court itself. If the parties never briefed the issue of constituionality, and thus never drew into question the issue, I don't think the statute applies. At leeast that's how I'd interpret it to save the Sixth Circuit's actions. Any time a law is found unconstitutional, freedom wins, and I support the decision.
12.30.2008 6:02pm
OrinKerr:
BruceM,

Even if you assume that the job of a court is to "save its actions" rather than follow the law, that reading makes no sense.

First, courts draw statutes into question, not parties. If a party asks a court to strike down a statute and the court refuses to consider the challenge, the cases indicate that there is no need for state intervention even if the party is trying to call the statute into question.

Second, the need for state intervention and hearing is greater, rather than lesser, if the parties aren't even raising the issue. At least there is likely to be someone defending the statute if the parties are litigating it: If the court comes up with the idea on its own, no one is there to defend it at all.
12.30.2008 6:20pm
OrinKerr:
(Oh, and I should add that I realize BruceM isn't actually trying to interpret the staute: He has a result he wants and he is just indicating that he would make that argument regardless of its strength. But The BruceM-OK Principle is again true, that I disagree with 100% of everything that BruceM says.)
12.30.2008 6:23pm
Oren:
Orin, in keeping with the 4A's usual objective standards, I would propose that a stop for a particular traffic violation is not valid unless the law enforcement agency in question normally enforces that particular law. In other words, the State would bear some burden of showing that their agency actually cites/arrests for that offense.

In the instant case, that would mean that MI has to show that police routinely pull over and cite vehicles for dangling obstructions, something they obviously don't do.

That would certainly increase the workload on the courts (and ensure your already-quite-secure future employment) but I think it would go a long way towards preventing the all-too-common situation where officers first decide on a suspect they want to investigate and then figure out what crimes he's committed.

Assuming for a moment that you supported having some legal way to end prtextual stops (actually, despite being a long-time reader, I'm not really sure where you stand, which is probably a good sign that you are talking straight), how would you fashion an objective test? IMO, it's a worthy goal -- at least I consider the current state of the law to be inadequate at enforcing our 4A guarantees -- but how to get there is quite difficult.
12.30.2008 7:08pm
zippypinhead:
Fascinating procedurally - no party raised the Constitutional issue, so no notice to the state needed to be given prior to the opinion being issued. Rather, the Court of Appeals panel sua sponte raised it and invalidated a state statute on Constitutional grounds. No briefing, no argument, on an issue neither preserved for appeal nor even raised by any party. Surprise, boys and girls, it's Unconstitutional!

But 28 U.S.C. § 2403(b) seems to cover this situation - I read the statute as mandating notice by the court regardless how the statute comes to be "drawn into question," and giving the state the right to intervene - if the state wants in, granting intervention doesn't seem to be discretionary.

Strikes me that at this point the state probably can move for intervention by right, to demand at minimum a rehearing on the Constitutional issue after full briefing. Although if I were the state A.G., I'm not sure I'd really want to (re)litigate the issue before that wacky panel -- might be better to figure out a way for Sylvester to kill Tweety Bird en banc.
12.30.2008 7:25pm
man from mars:
Oren, 7:08

in keeping with the 4A's usual objective standards, I would propose that a stop for a particular traffic violation is not valid unless the law enforcement agency in question normally enforces that particular law. In other words, the State would bear some burden of showing that their agency actually cites/arrests for that offense.

I think it would go a long way towards preventing the all-too-common situation where officers first decide on a suspect they want to investigate and then figure out what crimes he's committed.


I think that is a very interesting proposal.

Although you raise your point in the context of the 4th amendment, perhaps a similar test should apply in the context of the 5th: an agency should not be able selectively to enforce laws only against parties whom it wants to prosecute for other reasons.

I have in mind here the Lori Drew prosecution, which where the defendant was literally singled out for prosecution based on violation of the ToS of a website that was purported to be a violation of an interpretation of the CFAA, even though tens of millions of people had routinely engaged (and still engage) in the same violations, without any hint it was illegal.
12.30.2008 7:39pm
Ahcuah (mail):
Here's the Ohio Supreme Court case in which they decided they were not bound by rulings of any Federal Court except the Supreme Court.
12.30.2008 7:42pm
ReaderY:
If I were the 6th Circuit panel or en banc court, I'd realize a mistake had been made, vacate the opinion, and either reissue it with discussion of the constitutionality of the Michigan statute left out or require Michigan to intervene or opt out if the statute's status is really necessary to decide the case.

It'd be a bit like an appelate opinion in a criminal case going beyond simply deciding the defendant isn't guilty and instead declaring that a specific non-party was the one guilty of the crime — utterly improper, tramples on the rights of non-parties, simply shouldn't be done.
12.31.2008 12:27am
Oren:
ReaderY, the statute (AFAICT) does not empower the 6CA to require the AG to intervene. It requires the court to certify it to him and permits the AG to intervene.

Procedurally, isn't vacating the decision already a field too far (as it were)? First we need to find out if the MIAG even wants to defend this loony statute in the first instance.
12.31.2008 12:47am
Dave N (mail):
I think the Sixth Circuit could rewrite the opinion with some wiggle room and reach the same result.

Something along the lines of, "It is unnecessary to determine the constitutionality of this statute. If the statute is constitutional, then the officer properly pulled the vehicle over and no Fifth Amendment violation occurred. If the statute is unconstitutional, but the officers relied on the statute in good faith, no constitutional violation occurrred, either. We affirm."
12.31.2008 1:09am
Oren:
Dave, surely you realize that's absurd right? If the Federal courts could avoid reaching the merits by good-faith arguments, then they'd never strike any statutes at all! Of course, since the statute was never struck down, police officers could rely on it in good faith in perpetuity.
12.31.2008 1:35am
Public_Defender (mail):
Most courts liberally allow a state AG to get involved with a case for any reason. Protecting the constitutionality of a state statute where neither party has an interest in defending the statute would be one of the strongest cases for intervention.

I would find it highly unlikely that any court would deny a petition to rehear with a motion to intervene.

As to the claim that all cases will eventually be resolved in federal court anyway, that's theoretically possible, but practically incorrect. In practice, state court cases will plead out under state law. Only a few contested cases would survive to federal court, and then only in cases with the longest sentences. And the AG would have a bunch of procedural defenses to protect against a habeas action.

Another unfortunate reality is that most trial (and even appellate) state court lawyers (prosecutor and defense) don't know squat about what's going on in the federal circuit governing their state.
12.31.2008 7:56am
ReaderY:

Dave, surely you realize that's absurd right? If the Federal courts could avoid reaching the merits by good-faith arguments, then they'd never strike any statutes at all! Of course, since the statute was never struck down, police officers could rely on it in good faith in perpetuity.


To the contrary, federal courts have an obligation to avoid deciding the constitutionality of statutes unless the case before them requires them to do so. I agree with Dave that this case simply doesn't.

Federal courts will need to wait for a time when a defendant appeals a conviction under the statute or a person stopped under it decides to sue and actually claim that the statute is unconstitutional and injured them. Plenty of people appeal parking tickets all the way to the Supreme Court. Since this case will likely generate publicity that the law's constitutionality is subject to question, I expect one outcome of this case is that the statute will come before the federal courts in an actual case or controversy fairly soon.
12.31.2008 1:01pm
arbitraryaardvark (mail) (www):
I am not sure that the right of notice to the AG comes up in a case like this where the constitutional issue was raised sua sponte by the court and not plead or argued by the parties. Maybe somebody has a case clarifying that point.
I am involved in a case where the original case was filed in state court, the AG was given notice and declined to participate,and the time to intervene ran out. The case was then removed to federal court, which sent a new notice, and the AG intervened.
I am not sure that was proper.
12.31.2008 3:51pm
Oren:

Federal courts will need to wait for a time when a defendant appeals a conviction under the statute or a person stopped under it decides to sue and actually claim that the statute is unconstitutional and injured them.

The defendant in this case was clearly injured by being unlawfully seized pursuant to a (putatively) unconstitutional law.

Moreover, if the absurd state of affairs that you propose were true, then the following scenario would be constitutional:

(1) Pass a law prohibiting operating a vehicle with a dirty windshield.

(2) Instruct the police that they can pull over any car that they observe with a dirty windshield but don't ever write a citation for it. IOW, use it as a pretext to seize citizens and go fishing for bigger offenses.

(3) Since no one is ever charged with violation of the statute, let alone convicted, ReaderY's theory of constitutional law means that it stays on the books as valid because no one can challenge it.

(4) Pursuant to Krull, all those seizures remain perfectly valid.

So much for the fourth amendment guarantees against unreasonable seizures (although, to be honest, Whren already destroyed any semblance of 4A protection on the streets in the first instance).
12.31.2008 4:42pm
Dilan Esper (mail) (www):
Second, the "holding" was ultra vires. 28 USC 2403 can be read as a statute limiting the jurisdiction of a federal court to exclude from jurisdiction cases like this unless a condition precedent has been met -- notification of the state in the prescribed manner and admission of the state as a party. Congress has the power to limit the jurisdiction of the court and has done so in the statute.

It could be read as that. But given the sensible rules of construction against reading statutes as jurisdictional limitations unless they are clear and explicit in expressing that intent, it would be wrong to so read it.

By the way, just more generally, I get the feeling that a lot of conservatives get into a state of sexual arousal just thinking about limiting the jurisdiction of the federal courts, because they'd like a way around having to amend the Constitution to reverse Supreme Court decisions they don't like. But whatever one thinks about the scope of the Exceptions Clause in Article III, there are good reasons having nothing to do with protecting liberal court decisions why jurisdictional exceptions tend to be a very bad idea in practice.
12.31.2008 6:16pm
Gerg:
They really struck down the law that "effects the legality of the driving of millions of Michigan residents"? Seriously? So it's now illegal for millions of Michigan residents to drive?
1.1.2009 2:15am
Oren:

They really struck down the law that "effects the legality of the driving of millions of Michigan residents"? Seriously? So it's now illegal for millions of Michigan residents to drive?

Quite the contrary, million of MI residents were driving illegally under the law without realizing it. I myself have my graduation tassels hanging from my rear-view mirror.
1.1.2009 6:23pm
ReaderY:
Oren,

All the person who's car was searched has to do in the dirty windshield hypothetical you gave above is simply directly challenge the statute as part of the case, make an argument against it, and notify the state's attorney general.

It's simply not hard to do.

If the dirty windshield was the only pretext for the search, then all that the person challenging the search needs to do to put the statute in play was to challenge it.
1.3.2009 7:35pm

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Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.