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Supreme Court Forwards Federal Rule Amendments to Congress
On April 12, 2006, Chief Justice Roberts forwarded amendments to the Federal Rules to Congress. The rules affected by these amendments include civil procedure, appellate procedure, evidence, bankruptcy and criminal procedure. If accepted by Congress, these rules will take effect December 1, 2006.
One of the rule amendments that may be of interest to LANDS members involves new Rule 5.1 in the Federal Rules of Civil Procedure. Changes to the Federal Rules of Civil Procedure address notification by parties challenging the constitutionality of a federal or state statute. Prior to these recent amendments, part of what is now incorporated into Rule 5.1 had been in Fed. R. Civ. P. 24(c) on intervention. Adopted in 1991, Rule 24(c) and its statutory counterpart, 28 U.S.C. § 2403, required a court to certify to the U.S. Attorney General, or the state attorney general, when the constitutionality of a federal or state statute that affects the public interest is challenged, and the relevant governmental entity is not already party to the action. The requirements in new Rule 5.1 remain the same, however the federal rule certification requirements have been moved up to follow Fed. R. Civ. P. 5 on notice. This revision should make the requirements more prominent and adherence more consistent.
New Fed. R. Civ. P. 5.1requires a party challenging the constitutionality of a statute to give prompt notice to the U.S. Attorney General for federal statutes, or to the state attorney general for state statutes, if the U.S. or state, or their respective agencies, officers or employees is not a party. Rule 5.1 provides that the notice must state the question and identify the paper raising it and the party must serve the notice and paper on the respective attorney general. The rule allows for service either by certified or registered mail, or by sending it electronically to an electronic address designed by the attorney general for receiving service.
In addition, Rule 5.1(c) incorporates the previous Rule 24(c) requirements of certification, and requires a court to certify to either the U.S. or state attorney general that there is a constitutional challenge to a statute. See also 28 U.S.C. § 2403 (Intervention by United States or a State; constitutional question). Rule 5.1(c) provides the relevant attorney general the opportunity to intervene within 60 days after filing of the notice of the constitutional question, or after the court certifies the challenge, whichever is earlier. Further, subsection (c), allows the court to dispose of constitutional challenges that are deficient without undue delay and without waiting for the intervention period to expire. The court may not, however, enter a final judgment holding the statute unconstitutional. Finally, under subsection (d), failure of a party to file and serve the notice, or failure by a court to certify it, does not act as a waiver of a constitutional claim or defense otherwise timely asserted.
For the full text of the amendments to the rules, please click on the links to the respective rules:
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