*1 GEN- JERSEY NEW THE OF SPEAKER KARCHER, MAY al. et ASSEMBLY, al. et ERAL 1, 1987 December 6, 1987 Decided Argued October 85-1551. No. *2 O’Connor, J., opinion delivered the Court, which Rehnquist, J., C. Brennan, Marshall, Blackmun, Stevens, Scalia, JJ., joined. White, J., opinion filed an concurring in judgment, post, p. 83.
Rex E. Lee argued the cause for appellants. With him on William W. Robertson, Dean Gaver, briefs A. Rob- ert P. Zoller, Phillips. and Carter G. L.
Norman Cantor argued the cause for appellees. With him on the briefs were Richard M. Altman, A. Powell, John * and Eric Neisser. *Briefs of amici urging curiae reversal were filed for the United States by Fried, Solicitor General Attorney Assistant Reynolds, General Deputy Solicitor Ayer, Deputy Assistant Attorney Carvin, An- Pincus, drew J. Flynn, David K. and Dennis J. Dimsey; for the State of by et Connecticut al. Joseph Lieberman, I. Attorney General of Connecti- cut, Barney Lapp, Henry Cohn, S. and Carl Schuman, J. Assistant Attor- neys General, the Attorneys General for respective their States follows:Robert K. Arizona, Corbin Charles M. III Oberly Delaware, of the Court. opinion delivered the Justice O’Connor pre- Orechio, A. former Alan Karcher Carmen Jersey Legislature, siding seek officers of declaring judgment a statute unconstitutional. a public question appeal presents whether officials Their solely participated in a their officialca- lawsuit who have may pacities after have left an adverse may not. office. We hold
I Jersey Legislature enacted, In December 1982 pri- requiring veto, statute State’s over the Governor’s *3 secondary public permit mary educators to their and school a minute of silence before the start of to observe students schoolday. The statute reads follows: each elementary
“Principals public and teachers each and secondary of each school district in this State shall school period permit 1 minute of students observe a silence solely of the used at discretion individual stu- be Guste, Jr., William J. Linley E. Pearson of Frank Indiana, Louisiana, of Kelley Michigan, McKay Brian and Hal Stratton of New Nevada, J. of Steven Mexico; League Religious Rights by for and Civil for Catholic McDowell; Frederick John W. White- by Institute et for Rutherford al. Morris, Lindh, III, head, E. Ira W. Still William B. David Alfred Pentiuk, Strahan, Southworth, Hollberg, A. Thomas F. Randall W. John Bundren; Jr., Charles Rex E. by for et and W. and Ronald Sokalski al. Wilkins, Lee, Phillips, Woodruff, G. Richard G. Michael J. Carter and E. Ericsson. Samuel curiae Briefs of amici urging affirmance filed for the were American As- Tatel, Smith, by David S. Walter A. School Administrators
sociation of Jr., Heffeman; B. and Elizabeth Congress for the American Jewish et al. Coined; H. Elsen and Clement J. by for Americans United for Sheldon Boothby Lee and James M. by al. Separation of Church and State et Parker; Ruti League by the Anti-Defamation of B’nai B’rith et al. G. for Teitel, Finger, Meyer Eisenberg, Jeffrey Sinensky, Justin J. P. and Ste- Freeman; Jersey ven M. Churches et al. Donald by for the New Council of Drakeman; L. James R. Jersey for and the New Education Association Kenneth I. Nowak. Zazzali dent, before opening exercises of day each school ” quiet private contemplation introspection. or N. J. § (West
Stat. Ann. 1987). 18A:36-4 Supp. Jersey Attorney immediately announced that he would not defend the statute if it challenged. The statute became effective December 17,1982, and within a appellees month Jersey public New—a schoolteacher, several public school parents students, public schoolstudents— challenged its constitutionality in federal Appellees court. sued § under 42 U. S. C. alleging that the statute vio- lated the Establishment Clause of the First Amendment and seeking both declaratory injunctive relief. named as defendants the Jersey Department of Education, its Commissioner, and township two boards of education.
When it apparent became that neither the Attorney Gen- eral nor the named defendants would defend the statute, Karcher and Orechio, as Assembly and President of respec- Senate, tively, sought permission and obtained to intervene as de- fendants on behalf legislature. Appellees entered into stipulation dismissing the against suit the named defend- ants, but the District Court accept refused to stipulation out *4 concern for the might effect it jurisdic- have on the posture tional of the case. legislature, The through pre- its siding officers, carried the entire burden of defending statute. 5-day
After a trial, the District Court declared the Jersey statute Applying unconstitutional. the test set out in Lemon v. Kurtzman, 403 U. (1971), S. 602 the court held that the statute violated the Establishment Clause of First Amendment because purpose its religious was rather than secular, because it both advanced and religion, inhibited and because it fostered government excessive entanglement religion. with May Cooperman, v. (NJ Supp. 572 F. 1983). appealed from the District Court’s Karcher and Orechio Speaker judgment in their official as Jersey Jersey the New and President of General named defendants filed letters with the Court The Senate. stating participate ap- Appeals would not of necessary protect peal, except to themselves to the extent having pay attorney’s fees. from Appeals of affirmed the District Court’s declara- The Court judgment by majority tory held that a divided vote. religion promote or inhibit and would not fos- statute did not government entanglement and reli- ter excessive between gion, District Court’s conclusion that the but affirmed the for lack of a valid the Establishment Clause statute violated purpose. concluded that the evidence secular The dissent prove legislative the absence of a secular was not sufficient to purpose. Appeals judgment entered its The Court May Cooperman, 24, 1985. affirmance on December (CA3 1985). F. 2d posts January lost their 14, 1986, Karcher and Orechio
On replaced officers. Hardwick as Charles Assembly. Jersey Speaker of the New General Karcher as as of the New Jer- succeeded Orechio President John Russo sey Senate. appealing 1986, notice 19,
A March Appeals on behalf of “Alan to this Court was filed Court of Assembly; Jersey Karcher, as Assembly; Jersey Orechio, A. Carmen Sen- Senate and the New President of the New By App. letter dated to Juris. Statement 106a-107a. ate.” May appellants’ counsel informed us Senate 1986, Assembly Speaker Hardwick Russo and General President legislature’s appeal, withdrawing but that Karcher appeal. App. Motion Dismiss or to continue the desired Appellees Affirm on the dismiss the la-3a. moved to legislature’s ground *5 with- left the Court withdrawal controversy. postponed consideration of or We out a case
77 jurisdictional to the of the case on the question hearing (1987). merits. 1062 479 U. S. We now dismiss the appeal for want of jurisdiction.
II The of federal courts to hear decide cases is de- power III of the fined Article Constitution and by by federal statutes enacted thereunder. Karcher and Orechio seek to 1254(2). § invoke this Court’s under 28 U. S. jurisdiction C. That statute us to review cases a empowers upon “appeal by a party relying on State statute held a court of appeals be invalid as to the or repugnant Constitution, treaties laws of the United One an original States.” who is not party to a lawsuit of course may party by become a intervention, or 9 substitution, third-party Moore, Ward, B. practice. (1987). Lucas, ¶ & J. Moore’s Federal Practice 203.06 3-20 pp. consistently But we have rule that one applied general or who is a has not been treated as party a to a party therefrom. United States has no judgment right appeal ex rel. Jack, Louisiana v. Ex 397, 244 U. S. 402 parte (1917); Trade, Tobacco Board Ex 222 S. 581 578, (1911); U. Leaf Cockcroft, Ex parte parte Cutting, 578, (1882); U. S. (1877). 20-21 14, U. S. Karcher and intervened in this Orechio lawsuit their offi- cial officers on behalf presiding New Jer- do not in those sey Legislature. Indeed, could no capacities. not, hold longer The those offices. the lawsuit on behalf authority pursue to those who succeeded Karcher belongs office. Davis Preston, 280 U. S. Orechio 43(e)(1) Rule Federal Procedure Appellate pro- vides a public officer is to an or party “[w]hen other the court an official appeals capacity proceeding . . during office, its . ceases to hold the action pendency does not abate is automati- public officer’s successor cally as a current officers party.” substituted *6 78 Jersey Legislature is not an
have informed us that the appellant in this case. legislative presiding
Having offi- officialstatus as lost their capaci- in their Orechio now seek cers, Karcher and legislators representatives of the ma- as ties as individual Legislature, now-expired jority of the 200th New legislative body of silence statute. that enacted the minute capacities. in not seek leave to intervene those do they assert, for the first time in their briefs to this Rather, ligitated they originally that intervened law- Court, in those roles. suit participated in
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“THE Who are appearing COURT: for now? I am appearing presiding “[INTERVENORS’ COUNSEL]: for both the Jersey officers the House and New Jersey Senate and New General Assembly. houses, empowered by
“As officers both are represent in ligitation. rules both houses to the House representative “THE in a capacity? COURT: are “[INTERVENORS’ COUNSEL]: That is correct. “[PLAINTIFFS’ COUNSEL]: I don’t thin[k] Messrs. Karcher and proper parties. I Legislature whole, [sic] Orrechio are think it is the as a separate entities.
“[INTERVENORS’ coming COUNSEL]: The institution is in as an in- stitution. I come directly. can’t in for each of the 120 I individuals have polled one each of them.
“THE grant COURT: So I will the motion for intervention for Mr. capacities Karcher Mr. Speakers [sic] Orrechio their as re- spective Houses. Assembly
“[PLAINTIFFS’ COUNSEL]: I do think the General proper parties represented by Senate are and can be [sic] Orrechio — Karcher, but those entities representing. “[INTERVENORS’ That is I COUNSEL]: who am The says representative capacity Speaker order Alan J. Karcher in as Jersey Assembly, Jersey General General and the body.” App. same for the Senate and its to Motion to Dismiss or Affirm 12a-21a. presid- only representative in their as
defendants provided: ing The intervention order officers. capacity representative
“Alan Karcher his Jersey Assembly; of the New Assembly; rep- Jersey Carmen A. Orechio his Jersey capacity as President of the New Sen- resentative permitted to Senate; and the New be inter- ate; party App. vene defendants.” 53-54. as direct opinion on merits District identifies Court’s Jersey Assembly as “the New defendant-intervenors May Supp., Cooperman, 572 F. at Senate.” separate opinion attorney’s fees, 1563. In its on the District gave emphasizes that it leave to inter- Court represent vene to the interests of the State: *8 Speaker Legislature through itself, “The the of the Gen- the Senate, eral and the President of moved to Legislature permitted intervene in the case. The was enacting responsible to intervene it was for because party willing statute and because no other defendant was Legislature per- sought the statute. The to defend normally branch, form a falls to the executive task which which, case, in the executive refused to but perform.” this branch p. Doc. No. 20.
Record, Appeals similarly The in the Court of identifies the record Jersey Legislature. appellant-intervenor as the New appeal of Karcher, notice of “Alan J. as was filed Assembly; Jersey Jersey the New New General General Assembly; A. Orechio as President of New Carmen Jersey Jersey Defendants- Senate, Senate and the New Appeals’ The Court of Intervenors.” Doc. No. 64. Record, Jersey opinion appellants Senate identifies as “the Assembly.” 2d, at 241. 780 F. appellants appeal of The notice to this Court identifies Jersey Speaker of the New as “Alan J. Karcher, as Assembly; Assembly; Jersey A. Carmen of Orechio, as President and the Senate App. Senate.” to Juris. Statement 106a-107a. jurisdictional appellants Even the statement refers to the as Though Legislature.” appel- “the 5-6. Juris. Statement lants assert their brief that Karcher and Orechio as indi- legislators proper parties vidual in the District Court Appeals, our Court review the record satisfies formally sought, us Karcher and Orechio have neither any granted, permission participate nor sense been legislators. this lawsuit as individual party- think We it is also clear from the record that the point proceedings intervenor at each in the below was the legislature, incumbent on behalf of the State, not the particular legislative body that enacted the minute silence law. Nowhere the record did Karcher and Orechio assert they represented Legislature the 200th and no other. participated In sum, Karcher and Orechio this lawsuit in their official as officers of the New Jer- sey Legislature, longer but since no hold those offices, authority pursue appeal leg- lack this on behalf of the legislators islature. Karcher and Orechio as individual representatives Jersey Legislature of the 200th New are “parties” Appeals’ judg- entitled to Court §1254(2). Accordingly, ment under 28 U. S. C. we must jurisdiction. dismiss their want of
Ill argue Karcher and if Orechio that we dismiss their judgments we must vacate the below. advance two support theories of this result. judgments
First contend that the below must be va- proper party-defendant no cated because ever intervened they say, the case. This is so, because New law does presiding represent not authorize the officers to Jersey Legislature litigation. only is Not this directly contrary appellants’ explicit representations claim to 82 wrong appears Court,2 it be as a matter of
to the District Jersey Supreme The New Court has law. Speaker granted applications the of of the General parties- of the Senate to intervene as the President legisla respondent the a of defense of on behalf Forsythe, 91 450 141, 144, In re N. J. A. 2d tive enactment. (1982). Jersey Legislature had au 500 Since 499, represent thority State’s interests under state law Appeals, of Court and the Court we need not the District both proper judgments of a for lack defendant- below vacate appellant. theory vacating judgments
Appellants’ second for below vacating upon practice judgments our of lower court is based appeal. Burke Barnes, moot on See v. when a case becomes (1987); Department United 365 States 361, 479 U. S. (1986); Treasury 560 States Galioto, 556, v. U. S. United Munsingwear, Inc., In United U. S. Munsingwear, explained that when a case be States v. we through journey in its the federal courts we will comes moot judgment below and re reverse or vacate the “unreviewable” pro that this mand with directions to dismiss. We reasoned path relitigation for of the issues cedure “clears the future parties judgment, eliminates a review of between the through happenstance.” prevented Id., at 40. which was underlying Karcher and Orechio contend that rationale applies Munsingwear procedure it case, to this is the happenstance their loss of officialstatus that renders judgment unreviewable. say provides is which “THE You there a rule COURT:
each House— COUNSEL]: It is the officer each
“[INTERVENORS’ duties, we have charge and in of all administrative and from that House anytime they cooperated with been in numerous suits have counsel problem, your Honor.” deposition. I don’t envision this be a want App. to Dismiss or Affirm 16a-17a. to Motion *10 reject argument premise underlying
We this because its wrong. become is This case did not unreviewable when left Rather, Karcher and Orechio office. under Federal Rule 43(c)(1), Appellate authority Procedure of Karcher and pursue appeal legislature on Orechio to behalf passed effectuating in to their successors office. The rules public specifically automatic substitution of officers were prevent designed involving public to suits officers from be- coming personnel changes. Advisory to moot due See Com- Arndt, 25(d)(1), mittee on 1961 to *11 84 by appeal
as it the was to be taken the substi- existed, then parties, by not Kareher and Orechio. be tuted This would if law, the even under New action case required drop successor would be to authorize the officialsto cognizable ap- appeal. The fact is that there never was a the Jersey Legislature; by appeal peal on the an incumbent New this Since Kareher and its behalf never reached Court. Ore- Appeals’ judgment in their chio not the Court did representatives legislators, capacity or as individual Jersey Legislature, I do not reach the defunct 200th New standing question whether would have had maintain capacities. appeal in this one those other by parents denied a motion June, Last we and a school- appellants in this teacher to intervene as Court. 483 U. S. validity in 1017: Since our interest this case was might appear statute, it that we could moment-of-silence wasting time save this case and avoid and attention we by prior given vacating granting our order, have it seemingly intervene, motion to which was filed those with standing Mullaney 342 Anderson, to defend the law. Cf. v. (1952). reality jurisdiction But if in we had no U. S. case, it is entertain the taken this evident that the efforts to enter the case came too late. movants’ pointing however, It have out, bears that we now acknowl- edged Legislature that the New and its authorized authority representative have the to defend the constitution- ality Immigration of a statute attacked federal court. Cf. Chadha, and (1983). Naturalization Service U. S. ap- there would never have been a valid
Otherwise, peal Appeals, event, we to the Court of which would standing judgment of that do. court, leave as we now It is clear that because Kareher and Orechio did not also legislators nonrepresen- intervene as individual seek to day capacity, again leave for another the issue tative we standing legislators have to intervene and whether individual legislation Barnes, See Burke v. for which voted. defend S. 361 479 U. majority proper appeal agree I that no was
Since with judgment I below, taken from the concur its “appeal” be for want before us should dismissed jurisdiction. Notes Fed. Rule Civ. Proc. pp. 28 U. S. 568-569. C., controversy This did not become moot due to circum- any parties. stances unattributable to The contro- versy losing party Jersey Leg- ended when the —the pursue appeal. Accordingly, islature-declined to its Munsingwear procedure inapplicable is to this case. Be- parties cause Karcher and are not Orechio to this case in the appeal, under which seek to their must jurisdiction. be dismissed want It is so ordered. Justice White, in the concurring judgment. disagree I do with Court Mr. that Karcher and Mr. parties capaci- Orechio were made to this suit their official representing ties and the par- Senate; those two entities were also made capacity Neither ties. official his intervened individual legislator, sought appear capacity and neither to Appeals. January In Court of 1986, after the Court of Appeals any attempt had decided the case but before was bring appeal, made to it on here Karcher and Orechio lost standing represent Jersey Legisla- their official enough It ture. is clear me therefore lost their authority legislature on behalf of the and that their automatically parties successors in office became their 43(c) pursuant Appellate stead, to Federal Rule of Procedure any appeal If was to be had on behalf of the