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.