The Connecticut General Assembly

OFFICE OF LEGISLATIVE RESEARCH

June 24, 1994 94-R-0595

TO:

FROM: Pamela Lucas, Research Attorney

Re: Legislator Standing

You asked whether members of the General Assembly have standing as legislators to bring a lawsuit charging the executive branch with usurpation of legislative authority and power in violation of the state constitution.

SUMMARY

Legislators generally have standing to sue the executive branch when they allege that due to illegal executive branch action they have suffered concrete injury in their capacities as legislators. Only two Connecticut cases, both in the Superior Court, have addressed legislator standing, but both have done so summarily. They require the legislator to allege “misconduct or illegality in the legislative process itself,” but do not provide much insight into what this might entail. This memo accordingly reviews case law from federal and out-of-state courts to identify the principles Connecticut courts are likely to apply in the future.

In general, courts recognize legislator standing where plaintiffs allege executive branch interference in the process by which a bill becomes a law, or impairment of specific legislative powers. The majority of courts hearing challenges to executive action find standing when past legislative votes have been nullified or the legal status of a bill approved by a legislative majority has been impaired. Standing has also been recognized where executive action has denied legislators the opportunity to cast specific votes or to provide advice and consent on an issue as required by law. It is clear, on the other hand, that legislators do not have standing when they allege an impairment of their general effectiveness as legislators or a failure to enforce the law.

As a general rule, individual legislators must show they have been harmed personally in the exercise of their legislative powers. (Alternatively, they may assert injury to an individual interest connected with official duties (see, e.g., Powell v. McCormack, 395 U.S. 486 (1969)(challenging exclusion from legislative service founded on an interest in receiving back pay)). When entire legislative bodies sue, standing exists if the asserted injury is to their participation in the lawmaking process, e.g., when the executive improperly exercises the pocket veto power or unilaterally acts without obtaining required legislative consent. Individual legislators do not need approval to sue from their legislative body in order to have standing.

In some instances the courts have applied the doctrine of “equitable discretion” and have dismissed actions brought by legislators who have standing, when action by the legislative branch might provide substantial relief.

GENERAL PRINCIPLES OF STANDING

Under federal law, the concept of standing derives from the federal constitution's Article III limitation of federal court jurisdiction to actual cases or controversies. By contrast, Connecticut's constitution contains no case or controversy limitation. State court standing is not constitutionally required, but is a rule of judicial administration “designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy with each view fairly and vigorously represented . . .” (Sadloski v. Manchester, 228 Conn. 79, 84 (1993) (quoting Maloney v. Pac, 183 Conn. 313, 320 (1981)). Nevertheless, the state courts look to federal case law as persuasive authority and have adopted much of federal standing doctrine (see, e.g., Maloney, 183 Conn. at 320-22 (citing Baker v. Carr, 369 U.S. 186 (1962); Flast v. Cohen, 392 U.S. 83 (1968)).

To establish standing and thus invoke the jurisdiction of a state court, the plaintiff must make a “`colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity'” (Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693 (1991) (quoting Maloney, 183 Conn. at 321)). The plaintiff must have a “real interest in the cause of action, or a legal or equitable title or interest in the subject matter of the controversy” (Unisys Corp., 220 Conn. at 693). Generalized grievances will not suffice; instead, there must be a showing or allegation of individualized or particularized harm to the plaintiff from the alleged wrong.

LEGISLATOR STANDING

The federal and state courts impose the same basic standard for legislator and citizen standing. Legislators, like other plaintiffs, must allege concrete harm to their own interests and demonstrate a logical connection between their injury, their status, and the claim they seek to adjudicate. The issue that all cases involving legislator standing grapple with is whether the alleged injury is directly related to the plaintiffs' capacities as legislators.

Connecticut Case Law

Only two Connecticut cases to date have addressed legislator standing, and neither have been heard by the Appellate or Supreme Court. In both cases the court held the legislator plaintiffs lacked standing to sue as legislators because they were not challenging “misconduct or illegality in the legislative process itself” (Nania v. Borges, 41 Conn. Supp. 90, 96 (1988); Enama v. Weicker, No. CV 94-00465635, slip op. at 13 (Conn. Super. Ct. June 13, 1994)(quoting Nania, 41 Conn. Supp. at 96)). The cases offer little guidance on what might constitute the requisite misconduct or illegality, other than interference with a particular vote or the right to vote on a bill.

In Nania, members of the General Assembly petitioned the court for a writ of mandamus directing the state treasurer, in accordance with statute, to expend certain unappropriated surplus sums in the budget reserve fund to reduce the state's debt. Primarily because of the plaintiffs' lack of standing, the court dismissed the action. The court declared that in the absence of a statute authorizing legislator suits, a legislator has standing only when he or she is challenging misconduct or illegality in the legislative process. Specifically, it found no basis for legislator standing because there was no legal dispute regarding the process resulting in the statute at issue (41 Conn. Supp. at 97). The supporting cases cited by the court (all federal) found legislator standing to be present or absent based on whether the legislators could exercise their right to vote or whether a particular vote had been illegally impeded.

In Enama v. Weicker, also dismissed for lack of standing, the plaintiffs sought to enjoin the governor and other executive officials from transferring funds from the veterans' property tax relief account to the account for the Division of Criminal Justice to cover the shortage incurred by the merchandise for guns program. Their complaint alleged the transfer violated the state constitutional prohibition on conferring a public emolument to private individuals, as well as specific statutory provisions. With respect to the plaintiff Senator Gunther, the complaint alleged that the transfer of funds by the Financial Advisory Committee was “contrary to the rules and purpose of the Connecticut General Assembly in that the funding of such program is under the aegis of the Connecticut General Assembly . . .” (Complaint, Second Court, para. 20.)

Senator Gunther's complaint, affidavit and amended complaint both declared that the Appropriations Committee of the General Assembly had voted to deny a request for funds for the gift certificate shortfall arising from the gun swap program. In their brief in opposition to the motion to dismiss, the plaintiffs asserted that the General Assembly “is the only governmental body with the power to incur debt or appropriate funds” and that it had considered and rejected a special appropriation for the program (Plaintiff's Brief in Opposition at 3). According to the court, plaintiffs argued that the senator had standing because the Financial Advisory Committee usurped a legislative function (slip op. at 5).

Citing Nania, the court concluded that Gunther did not have standing through his status as a General Assembly member because the plaintiffs did not demonstrate “any illegal action taken by the legislature or even improper action” (id. at 13). The court did not further analyze legislator standing or the senator's lack of it in particular. It is clear from the Enama pleadings and briefs that Senator Gunther made no explicit allegation that he had suffered concrete injury in his legislative capacity, nor, specifically, that his ability to vote or act as a legislator had been impaired. It is unclear why the court commented that the plaintiffs did not demonstrate “illegal action taken by the legislature” rather than against it, or by the executive.

Federal Case Law

The U.S. Supreme Court has directly ruled on legislator standing in only one case: Coleman v. Miller, 307 U.S. 433 (1939). In Coleman, 21 members of the Kansas Senate challenged the right of the Lieutenant Governor to cast a tie breaking vote to adopt a proposed child labor amendment to the federal constitution. Twenty of the plaintiffs had voted against the resolution. Chief Justice Hughes' opinion, joined only by two other justices, concluded that the senators had standing to challenge the purported ratification by Kansas because “their votes have been overridden and virtually held for naught although. . . [they] would have been sufficient to defeat ratification.” The Chief Justice declared that “these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes” (id. at 438; see Risser v. Thompson, 930 F.2d 549, 550-51 (7th Cir. 1991)(recognizing continuing validity of Coleman)).

The majority of federal cases to consider legislator standing have been heard by the D.C. Circuit. The number of cases peaked in the late 1970s and dramatically dropped by the mid 1980s with the court's adoption of a theory of judicial restraint entitled “equitable discretion” (discussed below), applicable to cases involving congressional plaintiffs who are found to have standing.

Most of the federal cases finding legislator standing have been based on impairment of the right to vote. The seminal case, still considered good law, is Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), brought by Senator Edward Kennedy to challenge an attempted pocket veto by President Nixon of the Family Practice of Medicine Act. Kennedy had not been authorized to prosecute the suit on behalf of the Senate or Congress, but asserted he had standing in his capacity as an individual senator who had voted in favor of the act. The specific injury he asserted was nullification of a previous vote, as well as the right to participate in a vote to override the President's veto. This, according to the court, amounted to his disenfranchisement. The court concluded that vindication of the effectiveness of an individual legislator's vote was sufficient to confer standing (id. at 436; see also, e.g., United States Presbyterian Church v. Reagan, 738 F.2d 1375, 1381 (D.C. Cir. 1984)(representative had no standing to challenge executive order since he was not denied a right to vote)).

The courts in other circuits have similarly focused on the legislator's exercise of his or her vote ( see, e.g., Chiles v. Thornburgh; 865 F.2d 1197 (11th Cir. 1989) (representative lacked standing to challenge legality of detention facility because he did not allege nullification of his vote on any specific measures), Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974) (representative lacked standing to challenge military intervention in Cambodia because she was not denied right to vote); Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975) (representatives lacked standing to challenge expenditures for southeast Asia military action because their voting power was not diluted; once a bill becomes law, a legislator's interest is indistinguishable from other citizens); Korioth v. Briscoe, 523 F.2d 1271, 1278 (5th Cir. 1975)(state legislator lacked standing to challenge establishment of regional planning agencies because he did not allege effectiveness of his vote or other legislative powers impeded)).

In Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), the court made it clear that standing could not be established based on generalized claims of impaired effectiveness as a legislator. Congressman Harrington sought a declaratory judgment that certain Central Intelligence Agency activities were illegal, plus an injunction prohibiting the agency from using the funding and reporting provision of the Central Intelligence Agency Act of 1949 in connection with those activities. The court refused to find standing based on his assertion that a favorable declaratory judgment decision would “bear upon” his interest in the impeachment process and guide him in making decisions relating to potential legislative action, including those involving the appropriations power. This assertion alleged no particular injury, according to the court. (id at 208).

The court also found he had no standing to bring the injunction action and rejected his reliance on Kennedy. The court observed that in contrast to Kennedy, which involved a specific piece of legislation and a legislator's relationship to it, Harrington's case did not involve nullification of any past vote or the complete withdrawal of the opportunity to cast a future vote (id. at 211-12). According to the court, Kennedy was based on an objective standard for determining injury in terms of a vote on a particular bill; Harrington, however, had asserted subjective injury to his overall effectiveness due to the lack of information on the CIA. He had made no allegation that future votes would be nullified or that he would be disenfranchised in any way (id. at 212). Regarding past votes, the court observed that the assumed illegal CIA activities did not affect the legal status of appropriations bills already voted on.

The court also rejected Harrington's assertion of a “special relationship” to the legislative process which would confer on him an interest in the proper administration of the laws. According to the court, the critical inquiry for standing is whether a legislator's powers to make laws have been injured. An interest in the proper administration of the laws does not arise from the status of congressman, but is shared by all citizens. Thus Harrington's complaint was a generalized grievance which lacked the requisite specificity for standing (id. at 213-14).

Subsequent cases have reiterated that a mere interest in having the laws executed properly does not confer standing on a legislator. Instead, the legislator's claim must derive, as in Kennedy, from his or her interest in the process by which a bill becomes law. In certain instances this interest stems from membership in a particular committee, as opposed to the legislature itself, and deprivation of a right to take action as a committee member (see, e.g., Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989)(Senator lacked standing as member of Appropriations Committee because he did not allege deprivation of a right in relation to such membership); American Federation of Government Employees v. Pierce, 687 F.2d 303 (D.C. Cir. 1982)(Congressman lacked standing as member of the Congress, but had standing as member of Appropriations Committee to challenge agency action requiring Appropriations Committee approval)).

Besides Kennedy, several cases have found standing based on denial of the opportunity to vote or to render advice and consent to the executive as required by law. In Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.)(per curiam) (en banc), vacated on other grounds, 444 U.S. 996 (1979), the court considered the claims of various members of Congress that the President could not terminate the Mutual Defense Treaty with the Republic of China without senatorial consent. The court determined they had standing based on their argument that the Senate has the constitutional right to vote on the President's proposed treaty termination and to block it with a one-third plus one vote. The court observed that the President had deprived each individual senator of the opportunity to cast a vote that would have a binding effect. It was unnecessary, according to the court, to demand a showing that the votes would achieve the intended end. In Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981) the court held that a senator had standing to challenge the constitutionality of procedures established by the Federal Reserve Act for the appointment of the five Reserve Bank members. Based on plaintiff's assertion that the members must be appointed with the advice and consent of the Senate, the court reasoned that his inability to exercise his right under the Appointments Clause of the constitution was an injury sufficiently personal to constitute an injury-in-fact (id at 878).

Cases from Other States

Courts in other states rely on federal case law as persuasive authority on legislator standing, and similarly require that legislator plaintiffs demonstrate that specific legislative functions have been impaired or a vote nullified or impeded.

Many of the cases involve challenges to allegedly invalid vetoes. In Colorado General Assembly v. Lamm, 704 P.2d 1371, 1378 (Colo. 1985), for example, the Colorado Supreme Court held the assembly had standing to raise a constitutional challenge to the governor's veto of a general appropriations bill. The court reasoned that if the veto were permitted to stand unchallenged, it would cause injury-in-fact to the legislature's legally protected right and power to make appropriations by majority vote (see, also, e.g., State ex rel. Wisc. Senate v. Thompson, 424 N.W.2d 385 (Wis. 1988)(State Senate, President of Senate, Assembly, Speaker of Assembly, and legislative committee have standing to challenge veto of omnibus budget bill)).

State courts have found standing based on interference with specific legislative functions. In House Speaker v. Governor, 491 N.W.2d 832 (Mich. Ct. App. 1992), the Michigan Court of Appeals held that the Speaker of the House of Representatives, the Chair of the House Committee on Conservation, Recreation and the Environment, the Senate Minority Floor Leader, and the Senate Minority Leader had standing to sue to enjoin the implementation of an executive order abolishing the state's Department of Natural Resources and establishing a new department. The court reasoned that the legislature is constitutionally mandated to protect natural resources and that the executive order had eliminated boards and commissions created by the legislature to protect the environment. The court concluded that the legislators had asserted substantial interests as legislators different from those of the citizenry at large (see, also, The Colorado General Assembly v. Lamm, 700 P.2d 508 (Colo. 1985)(holding Colorado General Assembly had standing to challenge governor's authority to transfer funds from the departments of the executive branch for which they were appropriated to other executive departments, based on allegation that transfers violated state constitution's separation of powers and appropriations power provisions); Dye v. State ex rel. Hale, 507 So.2d 332, 338 (Miss. 1987)(holding two Senators had standing to challenge Lieutenant Governor's powers as President of the Senate, including those involving appointment of committees and bill referral to committees, based on allegation he deprived them of powers lawfully theirs as senators)).

Some cases appear to adopt a more liberal standard than federal case law regarding the showing of injury suffered, and find standing even though the legislator has not pointed to a specific instance in which his or her legislative functions have been or will be impaired. In Hendrick v. Walters, 865 P.2d 1232 (Okla. 1993) the Oklahoma Supreme Court held that a state senator had standing to litigate whether the governor forfeited his office by failing to take a statutory oath. In concluding that the senator had shown a direct interest and personal stake in the outcome of the litigation, the court reasoned that the legislative process requires substantial interaction of the governor with a legislator. According to the court, whether the senator's vote to confirm the governor's appointees or override a veto is effective depends upon the outcome of the action (id. at 1238). Thus, in Hendrick the legislator's general assertion of impairment of legislative functions was sufficient for standing.

Several courts have declined to find standing when legislators contest executive action that impairs the effectiveness of already passed legislation. (See, e.g., Killeen v. Wayne County Road Comm'n, 357 N.W. 2d 851 (Mich. App. 1984) (state senator cannot ask court to void agreement between county road commission and unincorporated labor association because his vote has been counted); Wilt v. Beal, 26 Pa. Commonw. 298, 363 A.2d 876 (1976) (state representative who alleged purpose of bill for which he voted has been frustrated lacked standing to enjoin the Secretary of Public Welfare and State Treasurer from permitting geriatric facility to be used as mental health care facility)). These cases have emphasized that once the legislators' votes have been counted and legislation enacted, the plaintiffs' special interest as legislators ends and they cannot assert standing in their legislative capacities.

Suits by Individual Legislators without Legislative Branch Approval

Neither federal nor state case law mandates that the entire legislature approve or authorize suits as a prerequisite to individual legislators having standing. In general, when legislators have not been authorized to sue on behalf of the institution to which they belong, the crucial inquiry is whether they personally have been injured and have a stake in the controversy. Their alleged injury can be “derivative” of the powers conferred on the governmental branch of which they are members ( see Harrington v. Bush, 553 F.2d at 198-200n.41; Kennedy v. Sampson, 511 F.2d at 434-35).

In Kennedy, the D.C. Circuit specifically rejected the argument that legislators have standing only as a group to protect the collective effectiveness of their vote, concluding, instead, that an individual legislator may sue with or without the concurrence of the majority. The prerequisite to standing, according to the court, is that the plaintiff be “`among the injured,'” not that he or she be the “most grievously or most directly injured” (id. at 435). Although an individual's interest may be “derivative” of the branch of which he or she is a member, it may be sufficient to confer standing in the context of a particular dispute about specific legislation (id.; see also, e.g., Barnes v. Kline, 759 F.2d at 21, 26 (D.C. Cir. 1985), vacated and remanded as moot, sub. nom. Burke v. Barnes, 107 S.ct. 734 (1987)(recognizing validity of suits by individual representatives regarding nullification of a vote, as well as by House regarding infringement of its lawmaking powers); Moore v. U.S. House of Representatives, 733 F.2d 946, 952 (D.C. Cir. 1984)(observing that injury to House as a body does not negate injury-in-fact to individual members)).

It is unclear, however, what effect a legislative body's affirmative decision not to sue would have on the standing of an individual legislator who asserted a violation of powers derivative of that body (see R. Lawrence Dessem, Congressional Standing to Sue: Whose Vote is this, Anyway?, 62 Notre Dame L.Rev. 1, 14-15 (1986)(noting courts uniformly have recognized that members of collegial bodies do not have standing to perfect an appeal the body itself refused to take)).

EQUITABLE DISCRETION DOCTRINE

In 1981 the D.C. Circuit adopted the doctrine of “equitable discretion” for cases involving congressional plaintiffs and separation of power concerns (see Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981)). Applying this doctrine, the court has refused to reach the merits of disputes in which a congressional plaintiff has standing but could obtain substantial relief through the enactment, repeal or amendment of a statute. In Riegle, the court explained that where a congressional plaintiff can obtain substantial relief from his colleagues, the court's failure to dismiss the action would put it in the position of meddling with the internal decisionmaking processes of Congress (see, also, e.g., Dornan v. United States Secretary of Defense, 851 F.2d 450 (D.C. Cir. 1988); Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984); Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir.), cert. denied, 464 U.S. 823 (1983)).

Where disputes involve clear impasses between legislators and executives, however, the D.C. Circuit and at least one state court have declined to apply the doctrine. In Barnes v. Kline, 759 F.2d 21, the court refused to dismiss an action brought by 33 individual members of the House, the Speaker, and bipartisan leadership of the House and the Senate, against the Acting Administrator of General Services and the White House, seeking to nullify the President's attempted pocket veto of a bill. The court observed that there could be no clearer instance of “`a constitutional impasse'” between the executive and legislative branches, and noted that it was not being asked to provide relief to legislators who failed to succeed in the legislative arena. The legislators' dispute was solely with the executive branch (id. at 28). In House Speaker v. Governor, 491 N.W.2d at 836-37, the Michigan Court of Appeals declined to apply the equitable discretion doctrine to dismiss an action to enjoin implementation of an executive order abolishing the state Department of Natural Resources. The court rejected the assertion that the doctrine should be applied because the legislature could overturn the executive order by a majority vote of both the House and Senate or through subsequent legislation. According to the court, no legislative act could prevent the governor from once again exceeding his authority through another executive reorganization (id.).

Based on these cases, the doctrine would appear to be inapplicable, for example, to a suit by legislators against the executive for unlawfully refusing to submit specific items for legislative approval. In such an instance, the dispute would reflect a constitutional impasse between the two branches, and it is unlikely the legislature could obtain relief through a remedial statute. The Connecticut courts, however, have not yet considered the doctrine.

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