Karcher v. May
484 U.S. 72 (1987)

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U.S. Supreme Court

Karcher v. May, 484 U.S. 72 (1987)

Karcher v. May

No. 85-1551

Argued October 6, 1987

Decided December 1, 1987

484 U.S. 72

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus

Within a month after the effective date of a New Jersey statute requiring primary and secondary public school educators to permit students to observe a minute of silence before the start of each schoolday "for quiet and private contemplation or introspection," appellees -- a teacher, several students, and parents -- filed suit in Federal District Court under 42 U.S.C. § 1983, claiming that the statute violated the Establishment Clause of the First Amendment. When it became apparent that neither the State's Attorney General nor the named defendants -- the State Department of Education, its Commissioner, and two local boards of education -- would defend the statute, the then-presiding Speaker of the New Jersey General Assembly and the President of the State Senate (hereafter appellants) sought and obtained permission to intervene as defendants on behalf of the legislature, and thereafter carried the entire burden of defending the statute. The District Court declared the statute unconstitutional, and the Court of Appeals affirmed. After appellants lost their posts as presiding legislative officers, they filed a notice in this Court appealing the judgment under 28 U.S.C. § 1254(2). Appellants' counsel having informed the Court that the new presiding legislative officers were withdrawing the legislature's appeal, appellees moved to dismiss on the ground that the withdrawal left the Court without a case or controversy.

Held:

1. The appeal must be dismissed for want of jurisdiction. Appellants intervened and participated throughout this lawsuit only in their official capacities as presiding officers on behalf of the state legislature. They no longer hold those offices, and the authority to pursue the lawsuit on behalf of the legislature has passed to their successors under Federal Rule of Appellate Procedure 43(c)(1). Their successors have withdrawn the legislature's appeal. Moreover, appellants' intervention and participation as presiding legislative officers does not entitle them to appeal in their newly asserted roles as individual legislators and as representatives of the majority of the now-expired legislature that enacted the statute. The record establishes that, throughout the proceedings in this case, appellants never sought or asserted participation in either of those

Page 484 U. S. 73

capacities, and that the only real party intervenor was the incumbent legislature. Thus, appellants are not "parties" entitled to appeal the Court of Appeals' judgment under § 1254(2). Pp. 484 U. S. 77-81.

2. Dismissal of the appeal does not require that the judgments below be vacated. The contention that no proper party defendant ever intervened in the case, because New Jersey law does not authorize the presiding legislative officers to represent the legislature in litigation, not only is directly contrary to appellants' explicit representations to the District Court, but appears to be wrong as a matter of state law, since the New Jersey Supreme Court has granted applications by the presiding legislative officers to intervene as parties respondent on behalf of the legislature in defense of a legislative enactment. Moreover, this Court's procedure, under United States v. Munsingwear, Inc.,340 U. S. 36, of vacating lower court judgments when a case becomes moot on appeal in order to allow future relitigation of the issues between the parties and to eliminate a judgment rendered "unreviewable" by happenstance, is inapplicable to this case. This controversy did not become moot, nor was the judgment here rendered unreviewable, by appellants' loss of official status. Rather, the authority to pursue the appeal on behalf of the legislature passed to appellants' successors in office, and the controversy ended when the legislature declined to pursue its appeal. Pp. 484 U. S. 81-83.

Appeal dismissed. Reported below: 780 F.2d 240.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post at p. 484 U. S. 83.

Page 484 U. S. 74

JUSTICE O'CONNOR delivered the opinion of the Court.

Alan J. Karcher and Carmen A. Orechio, the former presiding officers of the New Jersey Legislature, seek to appeal a judgment declaring a New Jersey statute unconstitutional. Their appeal presents the question whether public officials who have participated in a lawsuit solely in their official capacities may appeal an adverse judgment after they have left office. We hold that they may not.

I

In December, 1982, the New Jersey Legislature enacted, over the Governor's veto, a statute requiring the State's primary and secondary public school educators to permit their students to observe a minute of silence before the start of each schoolday. The statute reads as follows:

"Principals and teachers in each public elementary and secondary school of each school district in this State shall permit students to observe a 1-minute period of silence to be used solely at the discretion of the individual student,

Page 484 U. S. 75

before the opening exercises of each school day for quiet and private contemplation or introspection."

N.J.Stat.Ann. § 18A:36-4 (West Supp.1987). The New Jersey Attorney General immediately announced that he would not defend the statute if it were challenged. The statute became effective December 17, 1982, and, within a month, appellees -- a New Jersey public school teacher, several public school students, and parents of public school students -- challenged its constitutionality in federal court. Appellees sued under 42 U.S.C. § 1983, alleging that the statute violated the Establishment Clause of the First Amendment and seeking both declaratory and injunctive relief. They named as defendants the New Jersey Department of Education, its Commissioner, and two township boards of education.

When it became apparent that neither the Attorney General nor the named defendants would defend the statute, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature. Appellees entered into a stipulation dismissing the suit against the named defendants, but the District Court refused to accept the stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The legislature, through its presiding officers, carried the entire burden of defending the statute.

After a 5-day trial, the District Court declared the New Jersey statute unconstitutional. Applying the test set out in Lemon v. Kurtzman,403 U. S. 602 (1971), the court held that the statute violated the Establishment Clause of the First Amendment because its purpose was religious, rather than secular, because it both advanced and inhibited religion, and because it fostered excessive government entanglement with religion. May v. Cooperman, 572 F.Supp. 1561 (NJ 1983).

Page 484 U. S. 76

Karcher and Orechio appealed from the District Court's judgment in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate. The named defendants filed letters with the Court of Appeals stating that they would not participate in the appeal, except to the extent necessary to protect themselves from having to pay attorney's fees.

The Court of Appeals affirmed the District Court's declaratory judgment by a divided vote. The majority held that the statute did not promote or inhibit religion, and would not foster excessive entanglement between government and religion, but affirmed the District Court's conclusion that the statute violated the Establishment Clause for lack of a valid secular purpose. The dissent concluded that the evidence was not sufficient to prove the absence of a secular legislative purpose. The Court of Appeals entered its judgment of affirmance on December 24, 1985. May v. Cooperman, 780 F.2d 240 (CA3 1985).

On January 14, 1986, Karcher and Orechio lost their posts as presiding legislative officers. Charles Hardwick replaced Karcher as Speaker of the New Jersey General Assembly. John Russo succeeded Orechio as President of the New Jersey Senate.

A March 19, 1986, notice appealing the judgment of the Court of Appeals to this Court was filed on behalf of "Alan J. Karcher, as Speaker of the New Jersey General Assembly; the New Jersey General Assembly; Carmen A. Orechio, as President of the New Jersey Senate and the New Jersey Senate." App. to Juris. Statement 106a-107a. By letter dated May 6, 1986, appellants' counsel informed us that Senate President Russo and General Assembly Speaker Hardwick were withdrawing the legislature's appeal, but that Karcher desired to continue the appeal. App. to Motion to Dismiss or Affirm 1a-3a. Appellees moved to dismiss the appeal on the ground that the legislature's withdrawal left the Court without a case or controversy. We postponed consideration of

Page 484 U. S. 77

the jurisdictional question to the hearing of the case on the merits. 479 U.S. 1062 (1987). We now dismiss the appeal for want of jurisdiction.

II

The power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder. Karcher and Orechio seek to invoke this Court's jurisdiction under 28 U.S.C. § 1254(2). That statute empowers us to review cases upon

"appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States."

One who is not an original party to a lawsuit may, of course become a party by intervention, substitution, or third-party practice. 9 J. Moore, B. Ward, & J. Lucas, Moore's Federal Practice

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