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Can somebody tell me the meaning of the following sub-clauses in FRCP 5.1? Here is the wording exactly as it appears in the book:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:

(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity;

In both (A) and (B) it states "if...the parties do not include...". My question is this: If no state entity can be named as a Defendant in a challenge to an unjust (state) law, then who can be named? It seems where state law is illegal, then it is the Governor of the state who should be called to account for the law's continuing existence. The Governor is a state employee, so can s/he be named as the Defendant pursuant to FRCP 5.1?

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The Rules of Civil Procedure govern the how of a civil suit. They generally do not concern themselves with who you may sue or on what grounds.

Rule 5 governs who must be served notice of a lawsuit when it is filed. Generally, this includes all of the parties to the case. Rule 5.1 additionally indicates that if there is a question of the validity of a law, the appropriate state or federal Attorney General must be served notice and given an opportunity to intervene (become a party to the case) if they wish. This would be meaningless if the government was already party to the case, so it is only required if they aren't.

For example, say that I'm in a dispute with a business in another state. They point to a state law that supports their actions. If I want to challenge the constitutionality of that law, I need to serve notice on the state attorney general and they may wish to become a party to the case to defend their interpretation of the law.

If, on the other hand, I'm in a dispute with an agency of another state, and they again are supported by state law that I wish to challenge, I do not need to serve notice on the state attorney general because the state government (through its agency, the defendant) is already party to the case.

It seems where state law is illegal, then it is the Governor of the state who should be called to account for the law's continuing existence.

Passing an unconstitutional or otherwise invalid law isn't illegal, and you can't sue merely because you believe a law is unconstitutional. Instead, you have to demonstrate that you have suffered (or imminently will suffer) some loss or damage as a result of the law, and the proper person to sue is the one who caused that loss or damage - which as mentioned above might be a government agency, official, or employee, but might also be a private person or company.

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  • Thank you. Then, the terms above kinda go without saying. If you have a moment look at ORS 14.270 and then tell me how many ways that law is illegal. It's not just any old rule either is it? It's the "big one"; the rule that gives state judges in Oregon total immunity from public censure.
    – ILCTrent
    Commented Mar 16 at 5:34
  • @ILCTrent if you're curious about the constitutionality of ORS 14.270, perhaps you should consider asking a question about it. As to calling governors to account for a law's existence, governors cannot remove a law from the statute books. They can only refrain from enforcing a law that is held to be unconstitutional. Governors (or the state's department of justice) do typically have a duty to argue in favor of a law's constitutionality, but even then they will refrain if it's clear that the law isn't.
    – phoog
    Commented Mar 16 at 12:21
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If no state entity can be named as a Defendant in a challenge to an unjust (state) law, then who can be named?

You can't sue just because you think a law is unjust. You have to have a specific reason to sue -- an "actual case or controversy" -- usually some harm that came to you or that might come to you.

If the harm is somehow related to a state law that you think is unconstitutional, then you can argue that the law is unconstitutional when you make your case in court. But the focus of the lawsuit is not to challenge the law; the focus of the lawsuit is to remedy the harm that befell you or to prevent some harm from taking place. As noted in Cadence's answer, this may or may not involve the state.

I would also note that not all unjust laws are unconstitutional, and the federal courts generally keep their hands off of state laws unless they conflict with federal laws. If there's no conflict with federal law then the state's highest court is the ultimate authority (or of course the legislature, which could be petitioned to repeal or modify the law).

The Governor is a state employee, so can s/he be named as the Defendant pursuant to FRCP 5.1?

Not pursuant to FRCP 5.1, but state officers are often sued in their official capacity as a sort of proxy for suing the state government. For example, if the state won't issue you a driving license for some reason, you can sue the commissioner of motor vehicles to try to convince the court to order the commissioner to issue the license. As Cadence's answer notes, this approach doesn't really work for unconstitutional laws.

You might sue the governor in official capacity if the state had caused you some harm, but this brings us back to the principle that the primary objective of the suit does not concern the constitutionality of the law. Instead, it is to obtain a remedy, some concrete award or order that will benefit you.

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