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


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.


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 Their successors have withdrawn the legislature's appeal.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 chanrobles.com-red

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. chanrobles.com-red

Page 484 U. S. 74


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