Intervention by United States or a State; constitutional question


28 USC 2403 Intervention by United States or a State; Constitutional Question
FRCvP Rule 9 Release in a Criminal Case
FRCvP Rule 17 Filing the Record
FRCvP Rule 24 Intervention
California Code of Civil Procedure, Sections 387-388
California Rules of Court, Old Rule 29.5
California Rules of Court, New Rule 8.536

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TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 161--UNITED STATES AS PARTY GENERALLY

Sec. 2403. Intervention by United States or a State;
constitutional question

      (a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States 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.
      (b) 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.

(June 25, 1948, ch. 646, 62 Stat. 971; Pub. L. 94-381, Sec. 5, Aug. 12, 1976, 90 Stat. 1120.)

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., Sec. 401 (Aug. 24, 1937, ch. 754, Sec. 1, 50 Stat. 751).
Word ``action'' was added before ``suit or proceeding'', in view of Rule 2 of the Federal Rules of Civil Procedure.
Since this section applies to all Federal courts, the word ``suit'' was not required to be deleted by such rule.
``Court of the United States'' is defined in section 451 of this title. Direct appeal from decisions invalidating Acts of Congress is provided by section 1252 of this title.
Changes were made in phraseology.

Amendments

1976--Pub. L. 94-381, Sec. 5(b), inserted ``or a State'' after ``United States'' in section catchline.
Subsecs. (a), (b). Pub. L. 94-381, Sec. 5(a), designated existing provisions as subsec. (a) and added subsec. (b).

Effective Date of 1976 Amendment

Amendment by Pub. L. 94-381 not applicable to any action commenced on or before Aug. 12, 1976, see section 7 of Pub. L. 94-381, set out as a note under section 2284 of this title.
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     TITLE 28--APPENDIX
     FEDERAL RULES OF APPELLATE PROCEDURE
     TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

Rule 9. Release in a Criminal Case

     (a) Release Before Judgment of Conviction.
(1) The district court must state in writing, or orally on the
record, the reasons for an order regarding the release or detention of a defendant in a criminal case. A party appealing from the order must file with the court of appeals a copy of the district court's order and the court's statement of reasons as soon as practicable after filing the notice of appeal. An appellant who questions the factual basis for the district court's order must file a transcript of the release proceedings or an explanation of why a transcript was not obtained.
(2) After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed.
(3) The court of appeals or one of its judges may order the defendant's release pending the disposition of the appeal.

     (b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction.
     (c) Criteria for Release. The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. Secs. 3142, 3143, and 3145(c).

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98-473, title II, Sec. 210, Oct. 12, 1984, 98 Stat. 1987; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

     Notes of Advisory Committee on Rules--1967

Subdivision (a). The appealability of release orders entered prior to a judgment of conviction is determined

[[Page 22]]

by the provisions of 18 U.S.C. Sec. 3147, as qualified by 18 U.S.C. Sec. 3148, and by the rule announced in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), holding certain orders respecting release appealable as final orders under 28 U.S.C. Sec. 1291. The language of the rule, ``(an)n appeal authorized by law from an order refusing or imposing conditions of release,'' is intentionally broader than that used in 18 U.S.C. Sec. 3147 in describing orders made appealable by that section. The summary procedure ordained by the rule is intended to apply to all appeals from orders respecting release, and it would appear that at least some orders not made appealable by 18 U.S.C. Sec. 3147 are nevertheless appealable under the Stack v. Boyle rationale. See, for example, United States v. Foster, 278 F.2d 567 (2d Cir., 1960), holding appealable an order refusing to extend bail limits. Note also the provisions of 18 U.S.C. Sec. 3148, which after withdrawing from persons charged with an offense punishable by death and from those who have been convicted of an offense the right of appeal granted by 18 U.S.C. Sec. 3147, expressly preserves ``other rights to judicial review of conditions of release or orders of detention.''
     The purpose of the subdivision is to insure the expeditious determination of appeals respecting release orders, an expedition commanded by 18 U.S.C. Sec. 3147 and by the Court in Stack v. Boyle, supra. It permits such appeals to be heard on an informal record without the necessity of briefs and on reasonable notice. Equally important to the just and speedy disposition of these appeals is the requirement that the district court state the reasons for its decision. See Jones v. United States, 358 F.2d 543 (D.C. Cir., 1966); Rhodes v. United States, 275 F.2d 78 (4th Cir., 1960); United States v. Williams, 253 F.2d 144 (7th Cir., 1958).
     Subdivision (b). This subdivision regulates procedure for review of an order respecting release at a time when the jurisdiction of the court of appeals has already attached by virtue of an appeal from the judgment of conviction. Notwithstanding the fact that jurisdiction has passed to the court of appeals, both 18 U.S.C. Sec. 3148 and FRCrP 38(c) contemplate that the initial determination of whether a convicted defendant is to be released pending the appeal is to be made by the district court. But at this point there is obviously no need for a separate appeal from the order of the district court respecting release. The court of appeals or a judge thereof has power to effect release on motion as an incident to the pending appeal. See FRCrP 38(c) and 46(a)(2). But the motion is functionally identical with the appeal regulated by subdivision (a) and requires the same speedy determination if relief is to be effective. Hence the similarity of the procedure outlined in the two subdivisions.

         Notes of Advisory Committee on Rules--1972 Amendment

     Subdivision (c) is intended to bring the rule into conformity with 18 U.S.C. Sec. 3148 and to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. Release pending appeal may also be denied if ``it appears that an appeal is frivolous or taken for delay.'' 18 U.S.C. Sec. 3148. The burden of establishing the existence of these criteria remains with the government.

         Notes of Advisory Committee on Rules--1994 Amendment

     Rule 9 has been entirely rewritten. The basic structure of the rule has been retained. Subdivision (a) governs appeals from bail decisions made before the judgment of conviction is entered at the time of sentencing. Subdivision (b) governs review of bail decisions made after sentencing and pending appeal.
     Subdivision (a). The subdivision applies to appeals from ``an order regarding release or detention'' of a criminal defendant before judgment of conviction, i.e., before sentencing. See Fed.R.Crim.P. 32. The old rule applied only to a defendant's appeal from an order ``refusing or imposing conditions of release.'' The new broader language is needed because the government is now permitted to appeal bail decisions in certain circumstances. 18 U.S.C. Secs. 3145 and 3731. For the same reason, the rule now requires a district court to state reasons for its decision in all instances, not only when it refuses release or imposes conditions on release.
     The rule requires a party appealing from a district court's decision to supply the court of appeals with a copy of the district court's order and its statement of reasons. In addition, an appellant who questions the factual basis for the district court's decision must file a transcript of the release proceedings, if possible. The rule also permits a court to require additional papers. A court must act promptly to decide these appeals; lack of pertinent information can cause delays. The old rule left the determination of what should be filed entirely within the party's discretion; it stated that the court of appeals would hear the appeal ``upon such papers, affidavits, and portions of the record as the parties shall present.''
     Subdivision (b). This subdivision applies to review of a district court's decision regarding release made after judgment of conviction. As in subdivision (a), the language has been changed to accommodate the government's ability to seek review.
     The word ``review'' is used in this subdivision, rather than ``appeal'' because review may be obtained, in some instances, upon motion. Review may be obtained by motion if the party has already filed a notice of appeal from the judgment of conviction. If the party desiring review of the release decision has not filed such a notice of appeal, review may be obtained only by filing a notice of appeal from the order regarding release.
     The requirements of subdivision (a) apply to both the order and the review. That is, the district court must state its reasons for the order. The party seeking review must supply the court of appeals with the same information required by subdivision (a). In addition, the party seeking review must also supply the court with information about the conviction and the sentence.
     Subdivision (c). This subdivision has been amended to include references to the correct statutory provisions.

         Committee Notes on Rules--1998 Amendment

     The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only.

         Amendment by Public Law

     1984--Subd. (c). Pub. L. 98-473 substituted ``3143'' for ``3148'' and inserted ``and that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or in an order for a new trial'' after ``community''.

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[Page 29]
TITLE 28--APPENDIX
FEDERAL RULES OF APPELLATE PROCEDURE
TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY,
BOARD, COMMISSION, OR OFFICER

Rule 17. Filing the Record

    (a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed.
     (b) Filing--What Constitutes.
         (1) The agency must file:
             (A) the original or a certified copy of the entire record or parts designated by the parties; or
             (B) a certified list adequately describing all documents,
transcripts of testimony, exhibits, and other material constituting the record, or describing those parts designated by the parties.

         (2) The parties may stipulate in writing that no record or certified list be filed. The date when the stipulation is filed with the circuit clerk is treated as the date when the record is filed.
         (3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
             Notes of Advisory Committee on Rules--1967

     Subdivision (a). This subdivision is based upon section 7 of the uniform rule (see General Note following Rule 15). That rule does not prescribe a time for filing the record in enforcement cases. Forty days are allowed in order to avoid useless preparation of the record or certified list in cases where the application for enforcement is not contested.
     Subdivision (b). This subdivision is based upon 28 U.S.C. Sec. 2112 and section 7 of the uniform rule. It permits the agency to file either the record itself or a certified list of its contents. It also permits the parties to stipulate against transmission of designated parts of the record without the fear that an inadvertent stipulation may ``diminish'' the record. Finally, the parties may, in cases where consultation of the record is unnecessary, stipulate that neither the record nor a certified list of its contents be filed.

             Committee Notes on Rules--1998 Amendment

     The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only; a substantive change is made, however, in subdivision (b).
     Subdivision (b). The current rule provides that when a court of appeals is asked to review or enforce an agency order, the agency must file either ``the entire record or such parts thereof as the parties may designate by stipulation filed with the agency'' or a certified list describing the documents, transcripts, exhibits, and other material constituting the record. If the agency is not filing a certified list, the current rule requires the agency to file the entire record unless the parties file a ``stipulation'' designating only parts of the record. Such a ``stipulation'' presumably requires agreement of the parties as to the parts to be filed. The amended language in subparagraph (b)(1)(A) permits the agency to file the entire record or ``parts designated by the parties.'' The new language permits the filing of less than the entire record even when the parties do not agree as to which parts should be filed. Each party can designate the parts that it wants filed; the agency can then forward the parts designated by each party. In contrast, paragraph (b)(2) contizznues to require stipulation, that is agreement of the parties, that the agency need not file either the record or a certified list.
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TITLE 28--APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

IV. PARTIES

Rule 24. Intervention

      (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
      (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
      (c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12, 2006, eff. Dec. 1, 2006.)

Notes of Advisory Committee on Rules--1937

      The right to intervene given by the following and similar statutes is preserved, but the procedure for its assertion is governed by this rule:
U.S.C., Title 28:
Sec. 45a [now 2323] (Special attorneys; participation by Interstate Commerce Commission; intervention) (in certain cases under interstate commerce laws)
[[Page 150]]

Sec. 48 [now 2322] (Suits to be against United States; intervention by United States)
Sec. 401 [now 2403] (Intervention by United States; constitutionality of Federal statute)

U.S.C., Title 40:

Sec. 276a-2(b) [now 3144] (Bonds of contractors for public buildings or works; rights of persons furnishing labor and materials).

      Compare with the last sentence of [former] Equity Rule 37 (Parties Generally--Intervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: I The Right to Intervene and Reorganization (1936), 45 Yale L.J. 565. Under the codes two types of intervention are provided, one for the recovery of specific real or personal property (2 Ohio Gen.Code Ann. (Page, 1926) Sec. 11263; Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec. 89-522), and the other allowing intervention generally when the applicant has an interest in the matter in litigation (1 Colo.Stat.Ann. (1935) Code Civ.Proc. Sec. 22; La.Code Pract. (Dart, 1932) Arts. 389-394; Utah Rev.Stat.Ann. (1933) Sec. 104-3-24). The English intervention practice is based upon various rules and decisions and falls into the two categories of absolute right and discretionary right. For the absolute right see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 12, r. 24 (admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12 (execution); J. A. (1925) Secs. 181, 182, 183(2) (divorce); In re Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497 (receivership); Wilson v. Church, 9 Ch.D. 552 (1878) (representative action). For the discretionary right see O. 16, r. 11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916), Vavasseur v. Krupp, 9 Ch.D. 351 (1878) (persons out of the jurisdiction).

Notes of Advisory Committee on Rules--1946 Amendments

      Note. Subdivision (a). The addition to subdivision (a)(3) covers the situation where property may be in the actual custody of some other officer or agency--such as the Secretary of the Treasury--but the control and disposition of the property is lodged in the court wherein the action is pending.
      Subdivision (b). The addition in subdivision (b) permits the intervention of governmental officers or agencies in proper cases and thus avoids exclusionary constructions of the rule. For an example of the latter, see Matter of Bender Body Co. (Ref.Ohio 1941) 47 F.Supp. 224, aff'd as moot (N.D.Ohio 1942) 47 F.Supp. 224, 234, holding that the Administrator of the Office of Price Administration, then acting under the authority of an Executive Order of the President, could not intervene in a bankruptcy proceeding to protest the sale of assets above ceiling prices. Compare, however, Securities and Exchange Commission v. United States Realty & Improvement Co. (1940) 310 U.S. 434, where permissive intervention of the Commission to protect the public interest in an arrangement proceeding under Chapter XI of the Bankruptcy Act was upheld. See also dissenting opinion in Securities and Exchange Commission v. Long Island Lighting Co. (C.C.A.2d, 1945) 148 F.(2d) 252, judgment vacated as moot and case remanded with direction to dismiss complaint (1945) 325 U.S. 833. For discussion see Commentary, Nature of Permissive Intervention Under Rule 24b (1940) 3 Fed.Rules Serv. 704; Berger, Intervention by Public Agencies in Private Litigation in the Federal Courts (1940) 50 Yale L.J. 65.
      Regarding the construction of subdivision (b)(2), see Allen Calculators, Inc. v. National Cash Register Co. (1944) 322 U.S. 137.

Notes of Advisory Committee on Rules--1948 Amendment

The amendment substitutes the present statutory reference.

Notes of Advisory Committee on Rules--1963 Amendment

This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee's Note to that amendment.

Notes of Advisory Committee on Rules--1966 Amendment

      In attempting to overcome certain difficulties which have arisen in the application of present Rule 24(a)(2) and (3), this amendment draws upon the revision of the related Rules 19 (joinder of persons needed for just adjudication) and 23 (class actions), and the reasoning underlying that revision.
      Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: ``The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action.'' 4 Moore's Federal Practice, par. 24.09[3], at 55 (2d ed. 1962), and see, e.g., Formulabs, Inc. v. Hartley Pen Co., 275 F.2d 52 (9th Cir. 1960). This development was quite natural, for Rule 24(a)(3) was unduly restricted. If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of. Intervention of right is here seen to be a kind of counterpart to Rule 19(a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louisell & Hazard, Pleading and Procedure: State and Federal 749-50 (1962).
      The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in the action if he could establish with fair probability that the representation was inadequate. Thus, where an action is being prosecuted or defended by a trustee, a beneficiary of the trust should have a right to intervene if he can show that the trustee's representation of his interest probably is inadequate; similarly a member of a class should have the right to intervene in a class action if he can show the inadequacy of the representation of his interest by the representative parties before the court.
      Original Rule 24(a)(2), however, made it a condition of intervention that ``the applicant is or may be bound by a judgment in the action,'' and this created difficulties with intervention in class actions. If the ``bound'' language was read literally in the sense of res judicata, it could defeat intervention in some meritorious cases. A member of a class to whom a judgment in a class action extended by its terms (see Rule 23(c)(3), as amended) might be entitled to show in a later action, when the judgment in the class action was claimed to operate as res judicata against him, that the ``representative'' in the class action had not in fact adequately represented him. If he could make this showing, the class-action judgment might be held not to bind him. See Hansberry v. Lee, 311 U.S. 32 (1940). If a class member sought to intervene in the class action proper, while it was still pending, on grounds of inadequacy of representation, he could be met with the argument: if the representation was in fact inadequate, he would not be ``bound'' by the judgment when it was subsequently asserted against him as res judicata, hence he was not entitled to intervene; if the representation was in fact adequate, there was no occasion or ground for intervention. See Sam Fox Publishing Co. v. United States, 366 U.S. 683 (1961); cf. Sutphen Estates, Inc. v. United States, 342 U.S. 19 (1951). This reasoning might be linguistically justified by

[[Page 151]]
original Rule 24(a)(2); but it could lead to poor results. Compare the discussion in International M. & I. Corp. v. Von Clemm, 301 F.2d 857 (2d Cir. 1962); Atlantic Refining Co. v. Standard Oil Co., 304 F.2d 387 (D.C.Cir. 1962). A class member who claims that his ``representative'' does not adequately represent him, and is able to establish that proposition with sufficient probability, should not be put to the risk of having a judgment entered in the action which by its terms extends to him, and be obliged to test the validity of the judgment as applied to his interest by a later collateral attack. Rather he should, as a general rule, be entitled to intervene in the action.
      The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest is already adequately represented in the action by existing parties. The Rule 19(a)(2)(i) criterion imports practical considerations, and the deletion of the ``bound'' language similarly frees the rule from undue preoccupation with strict considerations of res judicata.
      The representation whose adequacy comes into question under the amended rule is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class. A party to an action may provide practical representation to the absentee seeking intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed. See International M. & I. Corp. v. Von Clemm, and Atlantic Refining Co. v. Standard Oil Co., both supra; Wolpe v. Poretsky, 144 F.2d 505 (D.C.Cir. 1944), cert. denied, 323 U.S. 777 (1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir. 1957); and generally, Annot., 84 A.L.R.2d 1412 (1961).
      An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.

Notes of Advisory Committee on Rules--1987 Amendment

The amendments are technical. No substantive change is intended.

Notes of Advisory Committee on Rules--1991 Amendment

      Language is added to bring Rule 24(c) into conformity with the statute cited, resolving some confusion reflected in district court rules. As the text provides, counsel challenging the constitutionality of legislation in an action in which the appropriate government is not a party should call the attention of the court to its duty to notify the appropriate governmental officers. The statute imposes the burden of notification on the court, not the party making the constitutional challenge, partly in order to protect against any possible waiver of constitutional rights by parties inattentive to the need for notice. For this reason, the failure of a party to call the court's attention to the matter cannot be treated as a waiver.

Committee Notes on Rules--2006 Amendment

      New Rule 5.1 replaces the final three sentences of Rule 24(c), implementing the provisions of 28 U.S.C. Sec. 2403. Section 2403 requires notification to the Attorney General of the United States when the constitutionality of an Act of Congress is called in question, and to the state attorney general when the constitutionality of a state statute is drawn into question.
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CALIFORNIA
CODE OF CIVIL PROCEDURE

387. (a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared in the same manner as upon the commencement of an original action, and upon the attorneys of the parties who have appeared, or upon the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) Title 14 of Part 2. A party served with a complaint in intervention may within 30 days after service move, demur, or otherwise plead to the complaint in the same manner as to an original complaint.
      (b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property to transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.

388. In an action brought by a party for relief of any nature other than solely for money damages where a pleading alleges facts or issues concerning alleged pollution or adverse environmental effects which could affect the public generally, the party filing the pleading shall furnish a copy to the Attorney General of the State of California. The copy shall be furnished by the party filing the pleading within 10 days after filing.

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California Rules of Court.

NOTE: Rule 29.5 has been renumbered to 8.536. However, the new rule 8.536 reads differently from the old 29.5

Rule 29.5. Questions of state law certified by federal appellate courts and other courts

(a) [Requirements for certified questions] The California Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, provided that:

(1) the certifying court requests the answer

(2) the questions may be determinative of a cause pending in the certifying court, and

(3) the decisions of the California appellate courts provide no controlling precedent concerning the certified question.

(b) [Contents of certification request] Only a court specified in subdivision (a) may certify question. The request shall be by an order that sets forth:

(1) the caption of the case, including names and addresses of counsel and of parties appearing pro se and a designation of he party to be deemed the petitioner on the certified question if the request to answer is granted; (2) the questions of law to be answered; (3) a statement (by stipulation of the parties subject to approval by the certifying court, or by the court itself) of¬ all facts relevant to the certified question, and showing fully the nature of the controversy and the circumstances in which the question arose;

(4) statements (i) demonstrating that the question certified is contested and that there is no controlling precedent in the case law of the California appellate courts, ( ii) explaining how an authoritative answer to the certified question may be determinative of a cause pending in the certifying court; and (iii) indicating that the answer provided by the California Supreme Court will be followed by the certifying court; and

(5) such additional information as the certifying court may deem relevant and useful.

(c) [Briefs and other materials] The certifying court shall furnish legible copies of all relevant briefs to the California Supreme Court with the request for an answer to the certified question. The California Supreme Court may request that the certifying court furnish additional material, such as exhibits or all or a portion of the record that, in the opinion of the court, may be useful in answering the certified question.

(d) [Request procedure] The judge or justice presiding at the certification hearing (if any) or the presiding judge or justice of the court or panel certifying the question shall sign the request for an answer to the certified question, and the clerk of the certifying court shall forward it under its official seal to the California Supreme Court.

(e) [Factors that may be considered] The California Supreme Court shall have discretion to accept or deny the request for an answer to the certified question of law. In exercising its discretion the court may consider: (1) factors that it ordinarily considers in deciding whether to grant review of a decision of a California Court of Appeal or to issue an alternative writ or other order in an original matter; (2) comity, and whether answering the question will facilitate the certifying court's functioning or help terminate existing litigation; (3) the extent to which an answer would turn on questions of fact; and (4) any other factors the court may deem appropriate.

(f) [Clarification of question] At any time, the California Supreme Court may restate the certified question or may ask the certifying court to restate or clarify the certified question.

(g) [Order denying or accepting request] The California Supreme Court shall issue an order accepting or denying the request for an answer to the certified question. If the court accepts the request, it shall announce that determination in the manner that it announces the acceptance of cases for review, and thereafter: (1) the California Rules of Court for briefing, argument, and conduct of appeals shall govern further proceedings on any certified question unless the court or the Judicial Council otherwise provides; (2) fees and costs shall be the same as in appeals docketed before the California Supreme Court and in civil matters, shall be equally divided between or among the parties unless the¬ certifying court in its request for an answer to the certified question provides for a different allocation, or the California Supreme Court provides otherwise; and (3) the California Supreme Court may in its discretion assign a certified question such priority on its docket as considerations of fairness, exigency, and comity may require.

(h) [Notice to California Attorney General] If the certified question concerns the proper interpretation of a California statute, in litigation in which the State of California or an officer, agency, or employee of the state is not a party, the clerk of the California Supreme Court shall notify the California Attorney General and the California Supreme Court may permit him or her to file briefs on the issue.

(i) [Transmission of opinion] The clerk shall forward the California Supreme Court's written opinion stating the law governing the certified question to the certifying court, under the seal of the Supreme Court, and also shall forward copies of the opinion to counsel of record.

(j) [Publication and precedential effect] The California Supreme Court's answer to a certified question shall have the same authoritative and precedential force as any other decision of the court, and shall be published in the official Reports.

(k) [Procedural rules] The California Supreme Court or the Judicial Council may adopt procedures governing practice under this rule.

(Adopted, eff. Jan. 1, 1998.) [Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 30, 1991, effective December 1, 1991.]

California Codes California Code of Civil Procedure CODE OF CIVIL PROCEDURE SECTION 387-388

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California Rules of Court
New Rule 8.536 Amends old Rule 29.5

Rule 8.536. Rehearing

(a) Power to order rehearing
The Supreme Court may order rehearing as provided in rule 8.268(a).
(Subd (a) amended effective January 1, 2007.)

(b) Petition and answer
A petition for rehearing and any answer must comply with rule 8.268(b)(1) and (3). Any answer to the petition must be served and filed within eight days after the petition is filed. Before the Supreme Court decision is final and for good cause, the Chief Justice may relieve a party from a failure to file a timely petition or answer.
(Subd (b) amended effective January 1, 2007; previously amended effective January 1, 2004.)

(c) Extension of time
The time for granting or denying a petition for rehearing in the Supreme Court may be extended under rule 8.532(b)(1)(B). If the court does not rule on the petition before the decision is final, the petition is deemed denied.
(Subd (c) amended effective January 1, 2007.)

(d) Determination of petition
An order granting a rehearing must be signed by at least four justices; an order denying rehearing may be signed by the Chief Justice alone.

(e) Effect of granting rehearing
An order granting a rehearing vacates the decision and any opinion filed in the case and sets the cause at large in the Supreme Court.

Rule 8.536 amended and renumbered effective January 1, 2007; repealed and adopted as rule 29.5 effective January 1, 2003; previously amended effective January 1, 2004.

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