entered pursuant to the City's Rule 68 offer of judgment.
The State argues that intervenors under 28 U.S.C. § 2403(b) intervene with "all the rights of a party." Because the State intended to appeal the determination that § 647(c) was facially unconstitutional, it argues that it should be guaranteed that right as a party. The State does not have standing to assert that right.
A threshold question to this argument is whether or not the State has standing to pursue this motion. Section 2403(b) provides in pertinent part that:
In any action, suit or proceeding in a court of the United States to which a State . . . is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn into question, the court shall . . . permit the State to intervene for presentation of evidence . . . 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.
28 U.S.C. § 2403(b) (emphasis added). Thus, the State has all the rights of a party to the extent necessary for presentation of the facts and law concerning the constitutionality of § 647(c). This Court has had a proper and extensive presentation of the facts and law concerning the constitutionality of § 647(c). As a result of that presentation, in which the State's assistance was substantial, the Opinion issued. The motion currently before the Court has no bearing on the constitutionality of § 647(c). The motion's relevance goes solely to the terms of the judgment entered pursuant to the Rule 68 offer of judgment. This is not a question concerning the constitutionality of the statute, nor does this issue involve § 647(c). In short, under the terms of the statute through which the State intervened, the State has no standing to either join with the City's motion or present its own motion for vacation of the judgment.
There are few cases discussing this issue. Several cases, however, indicate that the State should not be deemed to have standing to pursue this motion. In Vietnamese Fishermen's Association v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 215 n.17 (S.D. Tex. 1982), a district court explained that, "given the affirmative relief requested by the State of Texas [an injunction against defendants], intervention under § 2403(b) is inapplicable . . . ." Here, too, the State seeks affirmative relief in vacation of the judgment entered by the actual parties. In Ruotolo v. Ruotolo, 572 F.2d 336, 339 (1st Cir. 1978), the First Circuit explained that there is a difference
between permitting the United States to play an active role during the pendency of private litigation, and permitting it to go forward with the litigation in its own right after the parties have composed their differences. To do the latter, we think the government must possess some independent basis as a party apart from its status as intervenor . . . .
Finally, in Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), the Ninth Circuit explained that because two parties were appealing an issue, Arizona had the "limited" right to join the appeal under § 2403(b) to "make an argument on the question of constitutionality. Before the [State] can assert any right at all there must be a viable proceeding in which that right may be asserted." Id. at 739. Given that the State's limited right is to make an argument concerning constitutionality, and that there must be a viable proceeding in which the State can assert that limited right, Yniguez strongly indicates that the State has no standing to move for vacation of the judgment entered by the actual parties. The proceeding currently before this Court has nothing to do with the constitutionality of § 647(c). Any argument from the State concerning Rule 60(b) is vastly beyond the scope of its "limited" right to address the constitutionality of § 647(c).
Against the words of the statute, the strong implications of case law, and without citation, the State argues that "a State must be given an opportunity to intervene as a party for the purpose of litigating the constitutionality of the statute. This means that the State must have the right to seek vacation of an order that arguably could imperil the right of the State to seek an appeal . . . ." State's Reply Br., filed Jan. 24, 1992, at 6. The State's position is that without the right to pursue every procedural exercise that may impact on an ultimate determination of constitutionality, the State is limited in its ability to present evidence as to constitutionality. The question presented by this argument is: How far removed from an actual proceeding determining the constitutionality of a statute, would an intervenor continue to have standing? Under the State's proposal an intervenor could unilaterally move a court to vacate a judgment properly presented and accepted by the parties. The State in such a scenario becomes much more than a party. It becomes a super party who could trump the agreement of the actual parties.
If Congress had intended such a result, it would have provided an intervenor standing under § 2403(b) to litigate every issue in a case involving the constitutionality of a state statute. Congress did not so provide. It specifically limited the standing of a state to "presentation of facts and law relating to the question of constitutionality." 28 U.S.C. § 2403(b). The Court finds that the State has no standing to present argument on the Rule 60(b) motion before this Court.
IT IS HEREBY ORDERED that:
1. The motion of the City and County of San Francisco to modify or vacate the judgment entered on January 2, 1992, in this case is DENIED.
2. The Judgment entered on January 2, 1992, pursuant to the unconditionally accepted Rule 68 offer of judgment, stands as entered.
3. The State of California, as intervenor, has no standing to argue this Rule 60(b) motion.
Dated: March 12, 1992.
William H. Orrick
United States District Judge