Vindication At Last: Parallels Between Bysiewicz v. DiNardo And The Supreme Court’s Decision On Proposition 8

Connecticut readers will recall the epic battle several years ago between former Secretary of State Susan Bysiewicz and the state Republican Party over whether Bysiewicz was qualified to serve as Attorney General.   Although Bysiewicz persuaded Judge Michael Sheldon (now on the Appellate Court) that she met the statutory qualifications to serve as the AG, a unanimous state Supreme Court concluded otherwise.

I was fascinated by the case, but my interest focused less on the merits of the case and more on several jurisdictional issues that no party had raised and which, in my opinion, should have been resolved against any court hearing the merits at all.  I questioned whether the case was ripe for adjudication and whether the Republican Party, which had not been named as a party defendant, met the requirements for intervention in the trial court.  At a bare minimum, I questioned whether the Republican Party, as a mere intervenor in the case, had standing to appeal Judge Sheldon’s decision because it was not truly “aggrieved” by his ruling.  I based my argument in large part on a United States Supreme Court decision, Diamond v. Charles, 473 U.S. 54 (1986), which held that mere status as an intervenor, whether permissive or as of right, did not confer appellate standing.

Sad to say, my arguments, which appeared in an article in the December 2010/January 2011 edition of the Connecticut Lawyer, were met with mild amusement at best, belly laughs at worst.  Well my friends, laugh no more, for no less an authority than the United States Supreme Court has vindicated my arguments!!!

On June 26, 2013, a closely divided Supreme Court decided Hollingsworth v. Perry, otherwise known as the “Prop. 8” case.   Recall that a federal district court had held that a ballot initiative known as Proposition 8, which amended the California Constitution to ban same-sex marriage, was unconstitutional.   The State of California decided not to defend the initiative, so the District Court allowed the proponents of the initiative to intervene and defend it.  The intervenors appealed the District Court’s decision to the Ninth Circuit, which affirmed the lower court (after first asking the California Supreme Court whether the intervenors had authority under state law to defend the initiative.)  The intervenors then filed a petition for a writ of certiorari, which the Supreme Court granted.

The Court ultimately held, however, that the intervenors did not have standing to appeal the District Court’s ruling in the first place!  Why not?  Because, based largely on Diamond v. Charles, intervenors who lack a “personal stake” in a case, and whose generalized interest in a case is really no different from the interest of the public at large, lack standing under Article III of the Constitution.

Not surprisingly, the Prop. 8 case raised some other questions I considered in my article.  For example, if intervenors do not have standing to appeal an adverse decision in the trial court, and no one with party status appeals, how does an appellate court ever review the trial court’s ruling?  This question vexed the four dissenting justices in Hollingsworth, who would have resolved this troubling appellate asymmetry by concluding that the intervenors had Article III standing.

My point in writing this post, however, is not to gloat.  (Indeed, given that Hollingsworth is a 5-4 decision, gloating would hardly be appropriate.)  Rather, my objective is simply to heighten the bench’s and the bar’s sensitivity to jurisdictional issues that parties (and intervenors) may prefer not to bring to the attention of a court.  Jurisdictional questions, however, are among the few that trial and appellate courts are allowed to–indeed must–raise sua sponte.



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