Last updated on: 12/30/2009 | Author:

Karcher v. May

Decided on Dec. 1, 1987; 484 US 72

Former New Jersey state legislators claim standing to appeal case for New Jersey legislature after losing office


A. Issues Discussed: 1st Amendment (religion)

B. Legal Question Presented:

Do former state legislators have standing to pursue an appeal on behalf of the legislature after losing office? 


A. Background:

The New Jersey Legislature, in which appellant Karcher was a presiding officer, enacted a statute requiring the State’s public school educators to permit their students to observe a minute of silence before the start of each school day. Appellee May, a New Jersey public school teacher, challenged the constitutionality of the statute in federal court.

After the state Attorney General refused to defend the statute, appellants Karcher and Orechio, as presiding officers of the state legislature, intervened on behalf of the statute.

The district court held that the statute violated the Establishment Clause for lack of a valid secular purpose and the circuit court affirmed.

Appellants Karcher and Orechio lost their posts as presiding legislative officers. However, they continued defending the statue by filing an appeal to the US Supreme Court challenging the circuit court’s judgment under 28 USC § 1254(2). The high court granted the appeal.

B. Counsel of Record:
Opposing Side
ACLU attorney Norman L. Cantor argued the cause for appellees. With him on the briefs were ACLU attorneys Richard M. Altman, John A. Powell, and Eric Neisser. They represented the appellees, arguing for dismissal of the appeal, effectively affirming the Circuit Court’s decision.
Rex E. Lee argued the cause for appellants. With him on the briefs were William W. Robertson, Dean A. Gaver, Robert P. Zoller, and Carter G. Phillips.

C. The Arguments:

Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Association of School Administrators by David S. Tatel, Walter A. Smith, Jr., and Elizabeth B. Heffernan; for the American Jewish Congress, et al., by Sheldon H. Elsen and Clement J. Colucci; for Americans United for Separation of Church and State, et al., by Lee Boothby and James M. Parker; for the Anti-Defamation League of B’nai B’rith, et al., by Ruti G. Teitel, Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, and Steven M. Freeman; for the New Jersey Council of Churches, et al., by Donald L. Drakeman; and for the New Jersey Education Association by James R. Zazzali and Kenneth I. Nowak.

Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Andrew J. Pincus, David K. Flynn, and Dennis J. Dimsey; for the State of Connecticut, et al., by Joseph I. Lieberman, Attorney General of Connecticut, Barney Lapp, Henry S. Cohn, and Carl J. Schuman, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Charles M. Oberly III of Delaware, Linley E. Pearson of Indiana, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Brian McKay of Nevada, and Hal Stratton of New Mexico; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Rutherford Institute, et al., by John W. Whitehead, David E. Morris, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, John F. Southworth, Jr., and W. Charles Bundren; and for Ronald Sokalski, et al., by Rex E. Lee, Carter G. Phillips, Richard G. Wilkins, Michael J. Woodruff, and Samuel E. Ericsson.

“[W]e have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom… Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office… The current presiding officers have informed us that the New Jersey Legislature is not an appellant in this case…

The course of proceedings in this case from the District Court to this Court make it clear that the only party-intervenor in this case was the incumbent New Jersey Legislature. At the District Court hearing on their oral motion to intervene, Karcher and Orechio represented to both the court and their opponents that they were intervening on behalf of the legislature and not as individual legislators…

In sum, Karcher and Orechio participated in this lawsuit in their official capacities as presiding officers of the New Jersey Legislature, but since they no longer hold those offices, they lack authority to pursue this appeal on behalf of the legislature. Karcher and Orechio as individual legislators and as representatives of the 200th New Jersey Legislature are not ‘parties’ entitled to appeal the Court of Appeals’ judgment under 28 U.S.C. 1254(2)…

Accordingly, we must dismiss their appeal for want of jurisdiction.”

Justice Vote: 8 Pro vs. 0 Con

  • O’Connor, S. Pro (Wrote majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • Scalia, A. Pro (Joined majority opinion)
  • White, B. Pro (Wrote concurring opinion)
  • Vacant Seat

    The ACLU as counsel urged dismissal (affirmance); the US Supreme Court dismissed the appeal from the circuit court by an 8-0 vote, giving the ACLU an apparent win.