State v. Bradley ( 2022 )

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STATE OF CONNECTICUT v. WILLIAM
HYDE BRADLEY
(SC 20450)
Robinson, C. J., and McDonald, D’Auria,
Kahn and Ecker, Js.
Syllabus
The defendant appealed to this court from the judgment of the Appellate
Court, which affirmed the trial court’s judgments following his condi-
tional pleas of nolo contendere to the charges of sale of a controlled
substance and violation of probation. The charges stemmed from the
discovery by probation officers of marijuana in the defendant’s posses-
sion while they were conducting a visit at his home. The defendant had
filed motions to dismiss, claiming that the legislature’s enactment of
the statute ((Rev. to 2017) § 21a-277 (b)) criminalizing the sale of, inter
alia, marijuana was based on a racially discriminatory motive and, there-
fore, violated his rights under the federal constitution. Following a hear-
ing on the defendant’s motions, the trial court concluded that, although
the defendant, a Caucasian, was not a member of a minority group that
§ 21a-277 (b) allegedly discriminated against, he had standing to pursue
his challenge in his individual capacity because he was aggrieved by
the application of an unconstitutional law. The trial court nevertheless
denied the defendant’s motions to dismiss on the merits. Subsequently,
the defendant appealed to the Appellate Court from the trial court’s
judgments, claiming that the trial court had improperly denied his
motions to dismiss. The Appellate Court affirmed the trial court’s judg-
ments on the alternative ground that the defendant lacked standing to
assert his constitutional claim, and the defendant, on the granting of
certification, appealed to this court. On appeal, the defendant claimed
that he had standing, in his individual capacity, to raise a due process
challenge to his conviction under § 21a-277 (b) because that statute
violated the equal protection clause of the United States constitution
insofar as it was enacted for the purpose of discriminating against
African Americans and Mexican Americans. Held that the defendant
lacked standing to assert his claim that § 21a-277 (b) violated the equal
protection rights of African Americans and Mexican Americans, as the
defendant, a Caucasian, was not aggrieved by the legislature’s enactment
of a law that allegedly discriminated against other racial and ethnic
groups: the defendant failed to demonstrate a specific, personal and
legal interest, rather than a general interest shared by the community,
in the underlying equal protection challenge to Connecticut’s criminaliza-
tion of the sale of marijuana, as the defendant did not claim that he
was a member of the group of racial or ethnic minorities that § 21a-
277 (b) was allegedly enacted to discriminate against; moreover, the
defendant’s reliance on this court’s decision in State v. Long (268 Conn.
508) and on Justice Ruth Bader Ginsburg’s concurrence in Bond v.
United States (564 U.S. 211) was misplaced, as the analysis in Long was
confined to the second prong of the two-pronged inquiry for determining
classical aggrievement, whereas this case turned on whether the defen-
dant satisfied the first prong of that inquiry, and as Justice Ginsburg’s
concurrence was not controlling precedent and was based on federal
third-party standing doctrine that was inapplicable to the defendant
because he did not assert standing in a representative capacity.
(One justice dissenting)
Argued March 26—officially released October 5, 2021*
Procedural History
Information, in the first case, charging the defendant
with the crimes of possession of one-half ounce or
more of a cannabis-type substance within 1500 feet of
a school and sale of a controlled substance, and infor-
mation, in the second case, charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of Middlesex, where the court,
Keegan, J., denied the defendant’s motions to dismiss;
thereafter, the defendant was presented to the court
on conditional pleas of nolo contendere to the charges
of sale of a controlled substance and violation of proba-
tion; judgments in accordance with the pleas; subse-
quently, the state entered a nolle prosequi on the charge
of possession of one-half ounce or more of a cannabis-
type substance within 1500 feet of a school, and the
defendant filed separate appeals with the Appellate
Court, which consolidated the appeals; thereafter, the
Appellate Court, DiPentima, C. J., and Keller and Shel-
don, Js., affirmed the trial court’s judgments, and the
defendant, on the granting of certification, appealed to
this court. Affirmed.
Naomi T. Fetterman, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s
attorney, and Russell Zentner, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. Today we are called on to decide
whether a defendant has standing to assert a violation
of his right to due process based on his conviction
under a statute that he claims is unconstitutional. The
twist in that otherwise straightforward question is that
the defendant, who is Caucasian, claims that Connecti-
cut’s statute criminalizing the sale of marijuana violates
the equal protection clause of the United States consti-
tution because it was enacted to discriminate against
African Americans1 and Mexican Americans.
The defendant, William Hyde Bradley, appeals from
the judgment of the Appellate Court affirming the trial
court’s judgments following his conditional pleas of
nolo contendere to charges of sale of a controlled sub-
stance and violation of probation. The defendant’s prin-
cipal claim on appeal is that the Appellate Court incor-
rectly concluded that he lacked standing to argue that
his conviction for sale of a controlled substance in
violation of General Statutes (Rev. to 2017) § 21a-277
(b)2 violated his due process rights because he was
convicted under an unconstitutional statute. Specifi-
cally, he contends that the Appellate Court erroneously
held that a defendant cannot bring a constitutional chal-
lenge, in his individual capacity, based on an alleged
violation of others’ equal protection rights. Because the
defendant cannot meet the requirements to establish
classical aggrievement, we affirm the judgment of the
Appellate Court. Accordingly, we do not reach the mer-
its of the defendant’s equal protection claim in this
appeal.
The Appellate Court’s decision sets forth the facts
and procedural history; see State v. Bradley, 195 Conn.
App. 36, 38–41, 223 A.3d 62 (2019); which we summarize
in relevant part. In 2017, while the defendant was serv-
ing a sentence of probation for a prior conviction of
possession of marijuana with intent to sell, probation
officers conducting a visit at the defendant’s home dis-
covered marijuana in the defendant’s possession. Con-
sequently, the state charged the defendant, in two sepa-
rate informations, with one count of sale of a controlled
substance in violation of § 21a-277 (b), and with one
count of violation of probation in violation of General
Statutes § 53a-32.3
Relevant to this case, the defendant subsequently
filed motions to dismiss, arguing, among other things,
that the state’s criminalization of the sale of marijuana
was based on a racially discriminatory motive and,
therefore, violated the equal protection clause of the
fourteenth amendment to the United States constitution
and the equal protection guarantees under article first,
§ 20, of the Connecticut constitution, as amended. Fol-
lowing a hearing on the defendant’s motions, the trial
court ordered the parties to file supplemental memo-
randa of law regarding the issue of standing. In particu-
lar, the court ordered the parties to address whether
the defendant, who the trial court found to be Cauca-
sian, could raise an equal protection claim on the
ground that the legislature’s purpose in enacting a law
criminalizing the sale of marijuana was to discriminate
against members of a minority group of which the defen-
dant was not a member.4 In his supplemental memo-
randa in support of his motions to dismiss, the defen-
dant argued that his prosecution under § 21a-277 (b)
violated his due process right not to be convicted under
an unconstitutional statute. Although the defendant con-
ceded that he is not a member of a minority group that
the statute was allegedly enacted to discriminate against,
he claimed that he had standing to pursue this challenge
in his individual capacity, arguing that he is aggrieved
by the application of an unconstitutional law.
The trial court agreed with the defendant, reasoning
that a party need not be a member of the class discrimi-
nated against in order to have standing to challenge an
allegedly unconstitutional statute. The court noted that,
because the defendant was charged—and could be con-
victed—under the challenged statute, he established
classical aggrievement consistent with our holding in
State v. Long, 268 Conn. 508, 533, 847 A.2d 862, cert.
denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340(2004). Ultimately, however, the trial court denied the
defendant’s motions to dismiss on the merits, finding
that the defendant could not prove that the legislature’s
purpose in enacting the law criminalizing the sale of
marijuana was to discriminate against African Ameri-
cans or Mexican Americans.
Thereafter, the defendant entered pleas of nolo con-
tendere to the charges of sale of a controlled substance
and violation of probation, conditioned on preserving
his right to appeal from the conviction of sale of a
controlled substance and finding of violation of proba-
tion based on the trial court’s denial of his motions to
dismiss. The trial court sentenced the defendant for
his conviction of sale of a controlled substance to an
unconditional discharge, and, on his violation of proba-
tion, the defendant’s probation was revoked, and he
was sentenced to a term of five and one-half years of
incarceration, execution suspended, and two years of
probation.
The defendant appealed from the judgments to the
Appellate Court, claiming that the trial court improperly
denied his motions to dismiss. State v. Bradley, supra,
195 Conn. App. 41. The defendant again argued that
Connecticut’s statute criminalizing the sale of mari-
juana violates the equal protection clause of the United
States constitution. Id. The defendant did not, however,
challenge the trial court’s denial of his alternative equal
protection claim under the Connecticut constitution.
Id. The Appellate Court subsequently affirmed the judg-
ments of the trial court on the alternative ground that
the defendant lacked standing to assert his claim. Id., 59.
Thereafter, the defendant filed a petition for certifica-
tion to appeal, which we granted, limited to the follow-
ing two issues: (1) ‘‘Did the Appellate Court correctly
conclude that the defendant did not have standing to
raise a due process challenge to his prosecution under
a criminal statute, namely, [§ 21a-277 (b)], that he claims
was enacted for the purpose of discriminating against
minority groups to which he does not belong?’’ And (2)
‘‘[i]f the answer to the first question is ‘no,’ was § 21a-277
(b) enacted for the purpose of discriminating against
African Americans and/or Mexican Americans?’’ State
v. Bradley, 334 Conn. 925, 223 A.3d 379 (2020).
On appeal to this court, the defendant maintains that
he has standing to challenge his conviction of sale of
a controlled substance in violation of § 21a-277 (b) on
the ground that it violates his right to due process.
Specifically, the defendant contends that the statute
criminalizing the sale of marijuana violates the equal
protection clause of the United States constitution
because it was enacted for the purpose of discriminat-
ing against African Americans and Mexican Americans,
and, consequently, the statute is unconstitutional. The
defendant argues that—regardless of the challenger’s
own race or ethnicity—every person has a right to be
free from conviction under an unconstitutional statute.
Thus, the defendant contends that the application of
§ 21a-277 (b) to him, as a basis for his conviction, vio-
lates his due process rights. On this basis, the defendant
argues that he has established classical aggrievement
as articulated by this court in State v. Long, supra,
268 Conn. 531–32, because he has been ‘‘specially and
injuriously affected’’ by the application of § 21a-277 (b),
insofar as he has been charged, prosecuted, and con-
victed under the statute. (Internal quotation marks
omitted.) Id., 532.
The state disagrees and contends that the Appellate
Court correctly concluded that the defendant lacked
standing to claim that § 21a-277 (b) violates the equal
protection rights of minorities because the defendant
is not a member of a minority class. Specifically, the
state claims that the defendant cites no authority for
the proposition that there is a ‘‘due process right not
to be prosecuted under a statute [that] violates the equal
protection rights of others . . . .’’ It also contends that
the defendant has not been aggrieved by the legisla-
ture’s enactment of a law that allegedly discriminates
against African Americans and Mexican Americans.
Finally, the state contends that, ‘‘[although] the defen-
dant, and indeed the state, share the concern of ‘all
members of the community as a whole’ in preventing
discrimination, the defendant cannot demonstrate a
‘specific, personal and legal interest in [the subject mat-
ter of the challenged action],’ ’’ as required to demon-
strate classical aggrievement under State v. Long, supra,
268 Conn. 531. We agree with the state.
We begin our analysis with the standard of review
and relevant legal principles. ‘‘The issue of standing
implicates the trial court’s subject matter jurisdiction
and therefore presents a threshold issue for our deter-
mination.’’ New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583(2009). ‘‘Because a determination regarding the trial
court’s subject matter jurisdiction raises a question of
law, our review is plenary.’’ (Internal quotation marks
omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206,
214, 982 A.2d 1053 (2009).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action . . . . When standing is put in issue, the ques-
tion is whether the person whose standing is challenged
is a proper party to request an adjudication of the
issue . . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring [an action]
or is classically aggrieved. . . . The fundamental test
for determining [classical] aggrievement encompasses
a [well settled] twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Id., 214–15.
This court has explained that the two prongs of the
standing analysis are distinct and, thus, cannot be con-
flated. See, e.g., New England Rehabilitation Hospital
of Hartford, Inc. v. Commission on Hospitals & Health
Care, 226 Conn. 105, 122–23 and n.12, 627 A.2d 1257(1993) (noting that party claiming aggrievement must
demonstrate ‘‘certainty of a specific personal and legal
interest in the subject matter of the decision,’’ which
is separate from ‘‘the second prong of the aggrievement
test that requires only a possibility . . . that some
legally protected interest has been adversely affected’’
(internal quotation marks omitted)). When a defendant
cannot demonstrate that he has a specific, personal and
legal interest in the subject matter of the challenged
action, a court need not decide whether his interest
has been specially and injuriously affected. See, e.g.,
Connecticut Business & Industry Assn., Inc. v. Com-
mission on Hospitals & Health Care, 214 Conn. 726,
730–34, 573 A.2d 736 (1990) (explaining that, when
plaintiffs could not establish legal interest in subject
matter of certain settlement agreements at issue, as
distinct from interest of general public, it was unneces-
sary for court to consider second part of test for aggrieve-
ment).
We first note that the defendant challenges his convic-
tion, as well as the constitutionality of the state’s statute
prohibiting the sale of marijuana, in his individual
capacity. He does not claim that he was authorized by
statute to bring such a challenge or that he has third-
party standing to bring the challenge in a representa-
tional capacity on behalf of others. Rather, the defen-
dant claims that he has been aggrieved by the statute’s
unconstitutionality because he was prosecuted and con-
victed thereunder. Accordingly, we confine our analysis
to whether the defendant has standing, in his individual
capacity, to challenge the state’s statute criminalizing
the sale of marijuana on the ground that it violates the
equal protection rights of others.
To substantiate his claim to standing, the defendant
principally relies on this court’s decision in State v.
Long, supra, 268 Conn. 508. In Long, the defendant, who
had been charged with assault in the second degree,
was found not guilty by reason of mental disease or
defect and was subsequently committed to the custody
of the Commissioner of Mental Health and Addiction
Services for initial confinement and examination. Id.,511–12. Following a mandatory psychiatric evaluation,
‘‘the commissioner issued a report concerning the
defendant’s mental health . . . .’’ (Footnotes omitted.)
Id., 512. On the basis of the report, the trial court ulti-
mately found that the defendant was ‘‘a person who
should be confined’’ and ordered him to be committed
to the jurisdiction of the Psychiatric Security Review
Board. (Internal quotation marks omitted.) Id. Although
the defendant was initially to be committed to the juris-
diction of the board for a period of five years, the state
successfully petitioned the trial court to extend the
defendant’s commitment four additional times pursuant
to the court’s authority under the challenged statute.
Id., 512–13. When the state, for a fifth time, filed a
petition for recommitment, the defendant moved to,
among other things, dismiss the state’s petition. Id., 513.
The defendant argued that, once an acquittee reaches
his maximum term of commitment, any order granting
the state’s petition for recommitment pursuant to the
challenged statute was unconstitutional. Id. The trial
court ultimately granted the defendant’s motion to dis-
miss and concluded, in relevant part, that the challenged
statute, as applied to the defendant, deprived him of
his liberty without giving him the right to a mandatory
periodic judicial review of his commitment, a right that
is afforded to convicted prisoners who are civilly com-
mitted to psychiatric treatment facilities after they are
incarcerated. See id., 514.
On appeal, the state claimed, among other things, that
the defendant lacked standing to assert his constitu-
tional claim, arguing that the defendant had not satisfied
the traditional, two-pronged test for classical aggrieve-
ment. See id., 527–28. The state did not claim that the
defendant lacked a ‘‘specific, personal and legal liberty
interest in [the subject matter of the challenged
action]’’; id., 532; as it was clear that the defendant, an
acquittee challenging his recommitment, had a specific
interest in a statute prescribing standards for acquittee
recommitment proceedings. Instead, the state chal-
lenged the defendant’s ability to meet the second prong
of the test. Id. In particular, the state claimed that the
defendant could not prove that he was ‘‘specially and
injuriously affected’’ by his recommitment because, as
an acquittee, the defendant received more judicial
review of his commitment than a civil committee would
have been entitled to receive. (Internal quotation marks
omitted.) Id. This court ultimately concluded that the
defendant had standing to challenge the statute at issue,
explaining that a showing of classical aggrievement can
rest on the likelihood of a defendant’s future recom-
mitment. Id., 533. Specifically, we explained: ‘‘[I]n the
present case, the defendant challenges the acquittee
recommitment statute . . . which, if applied to him in
the future, could subject him to further recommitment
that adversely would affect his liberty interest. More-
over, the trial court specifically found at the most recent
recommitment hearing that the defendant still suffered
from a mental illness and posed a danger to others were
he discharged from confinement. These factual findings
demonstrate a genuine likelihood that the defendant is
susceptible to the deprivation of his liberty interest in
the future via recommitment . . . . Consequently,
because the defendant risks actual prospective depriva-
tion of his liberty interest under the challenged statute,
we conclude that he is classically aggrieved, and has
standing to challenge the statute.’’ (Internal quotation
marks omitted.) Id.The defendant relies on this court’s holding in Long
to establish his standing in this case. Specifically, the
defendant maintains that he was aggrieved because he
had been prosecuted and convicted under an unconsti-
tutional statute. In contrast to the defendant in Long,
the defendant in this case correctly notes that he faces
more than a ‘‘genuine likelihood’’ of future application
of the challenged statute; he has actually been prose-
cuted and convicted under the statute, and, thus, he
contends that he satisfies the test for aggrievement.
The defendant’s argument, however, collapses the two
distinct inquiries under the two part standing analysis.
Antecedent to his claim that his interest has been spe-
cially and injuriously affected, the defendant must
establish that he has a ‘‘specific, personal and legal
interest in [the subject matter of the challenged action],
as distinguished from a general interest, such as is the
concern of all members of the community as a whole.’’
(Internal quotation marks omitted.) Id., 531. Because
the defendant has not specifically made this showing,
he is not ‘‘classically aggrieved,’’ as that concept is
defined by our standing jurisprudence.
As the Appellate Court correctly noted, our holding
in Long cannot be construed as conferring on parties
a right to assert constitutional challenges, in their indi-
vidual capacities, based on the alleged violation of oth-
ers’ constitutional rights. See State v. Bradley, supra,
195 Conn. App. 47. Indeed, this court has previously
explained: ‘‘Only members of a class whose constitu-
tional rights are endangered by a statute may ask to
have it declared unconstitutional. . . . Courts are insti-
tuted to give relief to parties whose rights have been
invaded, and to give it at the instance of such parties;
and a party whose rights have not been invaded cannot
be heard to complain if the court refuses to act at his
instance in righting the wrongs of another who seeks no
redress.’’ (Citations omitted; internal quotation marks
omitted.) Shaskan v. Waltham Industries Corp., 168
Conn. 43, 49–50, 357 A.2d 472 (1975). Long, instead,
stands for the proposition that, although a party has
individual standing to challenge alleged violations of
his own rights, such challenges are not necessarily con-
fined to ongoing violations but may also include future
violations of such rights that are reasonably likely to
occur. See State v. Long, supra, 268 Conn. 532–33. The
defendant in Long was not aggrieved simply because
he faced future commitment. It was the combination
of this future threat and the fact that he was also a
member of the class of insanity acquittees whose rights
he sought to vindicate that gave him standing. Indeed,
the parties in Long agreed that the defendant had a
‘‘specific, personal and legal liberty interest in [the sub-
ject matter of the challenged action],’’ as the defendant
was an acquittee whose personal and legal interests
were squarely implicated by the challenged statute. Id.,
532. Our analysis, accordingly, was confined to the sec-
ond prong of the two part test for classical aggrieve-
ment, namely, whether the party’s interest was ‘‘spe-
cially and injuriously affected’’ by the challenged action.
(Internal quotation marks omitted.) Id. In Long, we
did not discuss the first prong of the test for classical
aggrievement, let alone determine whether a defendant
who asserts a violation of the constitutional rights of
others satisfies the first prong. In sum, our holding in
Long—a case in which the parties agreed that the first
prong of our test for classical aggrievement was satis-
fied—is wholly inapplicable to the present case, in
which the question turns on whether the defendant has
satisfied the first prong of the classical aggrievement
test.
Our case law addressing the first prong of the test
for classical aggrievement states that a defendant has
a specific, personal and legal interest when his property
rights are affected; see, e.g., Brady-Kinsella v. Kinsella,
154 Conn. App. 413, 417, 106 A.3d 956 (2014) (conclud-
ing that, in marital dissolution action, plaintiff had ‘‘spe-
cific, personal, and legal interest in equitable distribu-
tion of the marital property’’), cert. denied, 315 Conn.
929, 110 A.3d 432 (2015); when he is within the class
of persons implicated by the challenged statute; see,
e.g., State v. Long, supra, 268 Conn. 533 (holding that
acquittee had standing to challenge statute pertaining to
acquittee recommitment); Ramos v. Vernon, 254 Conn.
799, 810–11, 761 A.2d 705 (2000) (holding that minor
and his mother had standing to challenge town ordi-
nance that imposed curfew on minors and correspond-
ing penalties for minors’ parents); and when the defen-
dant’s conduct is the very essence of the dispute. See,
e.g., Rose v. Freedom of Information Commission, 221
Conn. 217, 219, 231, 602 A.2d 1019 (1992) (noting that,
in arguing that Freedom of Information Commission
had wrongfully denied them party status, plaintiffs satis-
fied first prong of aggrievement test because plaintiffs’
conduct during ‘‘mock arrest’’ was substance of ‘‘board’s
investigation, executive session and vote’’); Cannavo
Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d
601 (1984) (holding that defendant had personal and
legal interest in subject matter of default judgment,
namely, whether defendant should be held liable for
services rendered by plaintiff). Common among all of
these cases is the direct connection between the chal-
lenger and the subject matter of the dispute, a correla-
tion between the harm to be avoided and the person
subjected to the harm. This correlation cannot be found
here. The defendant has not demonstrated a specific
interest in his underlying equal protection challenge to
Connecticut’s criminalization of the sale of marijuana.
The defendant does not claim to be a member of the
group of racial or ethnic minorities that he asserts the
statute was enacted to discriminate against. We can all
agree that nonminorities might share in the general
interest in eradicating racial discrimination, and,
indeed, the defendant’s own asserted interest—prem-
ised on an equal protection claim to vindicate others’
rights—cannot be distinguished from that of the interest
of the general community, at large.
Furthermore, the defendant’s standing argument is
circular. To frame his due process argument, the defen-
dant maintains that he was charged and convicted under
an unconstitutional statute, the constitutionality of which
is the subject of the merits of his underlying claim,
which we cannot reach unless we conclude that the
defendant has standing to assert such a claim. The
defendant impermissibly relies on this court’s assump-
tion of certain predicate conclusions—namely, that the
challenged statute is unconstitutional—prior to our dis-
position regarding the defendant’s standing to challenge
the constitutionality of the statute at issue. In other
words, the defendant’s argument that he has standing
because he has a right not to be convicted under an
unconstitutional statute assumes the merits of his equal
protection claim.
The defendant also contends that Justice Ruth Bader
Ginsburg’s concurrence in Bond v. United States, 564
U.S. 211, 226, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011)
(Ginsburg, J., concurring), supports his contention that
he has standing based on a due process right not to be
convicted under an unconstitutional statute. We are not
persuaded. In Bond, the United States Supreme Court
considered whether a citizen of Pennsylvania, Carol
Anne Bond, had the authority to challenge a federal
statute on the ground that it violated the tenth amend-
ment to the United States constitution or, alternatively,
whether her rights to challenge the statute belonged to
the state. Id., 214. The majority concluded that Bond,
who was indicted for violating the federal statute, had
standing to bring her tenth amendment claim, reasoning
that an ‘‘individual, in a proper case, can assert injury
from governmental action taken in excess of the author-
ity that federalism defines.’’ Id., 220. It emphasized that,
when a party can establish article three standing,
namely, proof of ‘‘actual or imminent harm that is con-
crete and particular, fairly traceable to the conduct
complained of, and likely to be redressed by a favorable
decision’’; id., 225; ‘‘she is not forbidden to object that
her injury results from disregard of the federal structure
of our [g]overnment.’’ Id., 225–26. Because Bond met
the requirements for article three standing, and because
she asserted a cognizable tenth amendment violation,
the court concluded that she had standing to raise her
claims.5 See id.Justice Ginsburg joined the majority’s opinion but
wrote separately to emphasize one observation. In her
concurrence, Justice Ginsburg maintained that—
regardless of whether a defendant asserted a tenth
amendment challenge, or a due process challenge, or
one rooted in the establishment clause—‘‘a court has
no ‘prudential’ license to decline to consider whether
the statute under which the defendant has been charged
lacks constitutional application to her conduct.’’ Id.,226–27 (Ginsburg, J., concurring). Whereas the majority
held that a defendant has standing to assert a claim
alleging a violation of the tenth amendment, Justice
Ginsburg asserted that—regardless of the alleged con-
stitutional violation a defendant asserts—courts ‘‘must
entertain the objection—and reverse the conviction—
even if the right to equal treatment resides in someone
other than the defendant.’’ Id., 227 (Ginsburg, J., concur-
ring).
Here, the defendant relies on Justice Ginsburg’s con-
currence for the proposition that he has standing to
challenge the constitutionality of a statute that violates
the equal protection rights of others. The defendant’s
argument, however, centers on an isolated quote from
the concurrence, in which Justice Ginsburg wrote:
‘‘[A]ny . . . defendant . . . has a personal right not to
be convicted under a constitutionally invalid law. . . .
Due process . . . is a guarantee that a man should be
tried and convicted only in accordance with valid laws
of the land.’’ (Citations omitted; internal quotation
marks omitted.) Id., 226 (Ginsburg, J., concurring). The
defendant reasons that, because he was convicted
under a statute that he claims violates equal protection,
his due process right to be free from ‘‘convict[ion] under
a constitutionally invalid law’’ has been violated. Id.The defendant’s reliance on Justice Ginsburg’s con-
currence is misplaced. In addition to the fact that it is
neither controlling with respect to this court nor binding
on the United States Supreme Court, Justice Ginsburg’s
concurrence in Bond relies on precedent distinguish-
able from the case now before us, including federal
third-party standing precedent.6 See, e.g., Eisenstadt v.
Baird, 405 U.S. 438, 440, 445–46, 92 S. Ct. 1029, 31 L.
Ed. 2d 349 (1972) (holding that defendant, who was
convicted of giving contraceptive to woman in violation
of state statute, could prove aggrievement in represen-
tative capacity on behalf of unmarried persons entitled
to contraceptives); see also, e.g., Craig v. Boren, 429
U.S. 190, 191–92, 194–97, 97 S. Ct. 451, 50 L. Ed. 2d 397(1976) (holding that licensed vendor of beer could bring
action challenging state statute that prohibited sale of
beer to males under age of twenty-one and females
under age of eighteen on basis of gender discrimination
because buyers’ market of vendor was effectively con-
stricted by statute). We have never applied the federal
third-party standing doctrine under Connecticut law,
and, as we previously discussed in this opinion, the
defendant does not assert that he has standing in a
representative capacity. Accordingly, we are not per-
suaded by the defendant’s reliance on Justice Gins-
burg’s concurrence in Bond.
The defendant also relies on a number of other federal
cases for the proposition that a defendant has standing
to challenge a statute on the ground that it is unconstitu-
tional as applied to others. Notably, nearly all of the
cases the defendant relies on also refer exclusively to
third-party standing.7 These cases are inapplicable to
the present case because the defendant does not assert
a third-party standing claim. Third-party standing is a
distinct legal concept from the individual standing argu-
ment the defendant advances to support his own aggrieve-
ment.8
The defendant cites no authority, and we found none,
in which a court concluded that a defendant had stand-
ing—in his individual capacity—to assert a claim
based on the alleged violations of others’ constitutional
rights. When a defendant has not established individual
standing and has not asserted a claim based on third-
party standing, this court is without subject matter juris-
diction to consider the merits of his underlying claim.
Cf. Steeneck v. University of Bridgeport, 235 Conn.
572, 589, 668 A.2d 688 (1995) (‘‘[when] a plaintiff lacks
standing to sue, the court is without subject matter
jurisdiction’’).
Although federal precedent has permitted parties to
establish standing by proving classical aggrievement in
a representative capacity based on alleged violations
of others’ constitutional rights, it has never expanded
the scope of classical aggrievement in an individual
capacity to eliminate the requirement that a party must
be personally aggrieved by the alleged violation.
Because the defendant in this case has failed to estab-
lish any specific, personal and legal interest in the equal
protection argument, which forms the basis of his due
process claim, challenging the state’s law criminalizing
the sale of marijuana, as distinguished from a general
interest, the defendant has not established that he is
classically aggrieved and, therefore, does not have
standing to assert any such claim. Accordingly, we
affirm the judgment of the Appellate Court and decline
to consider the merits of the defendant’s constitu-
tional claim.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and D’AURIA and
KAHN, Js., concurred.
* October 5, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We recognize that the term ‘‘African American’’ is restrictive in that it
does not necessarily encompass the entire Black population in America.
Nevertheless, to remain consistent with the parties’ briefs, the Appellate
Court opinion, and the certified issues before this court, we use the term
‘‘African American’’ throughout this opinion.
2
Hereinafter, all references to § 21a-277 in this opinion are to the 2017
revision of the statute.
3
The defendant was also charged with one count of possession of one-
half ounce or more of marijuana within 1500 feet of a school in violation
of General Statutes (Rev. to 2017) § 21a-279 (b). The state subsequently
entered a nolle prosequi with respect to this charge.
4
We acknowledge the numerous complexities of race. For example, criti-
cal race theorists maintain that ‘‘race and races are products of social
thought and relations. Not objective, inherent, or fixed, they correspond to
no biological or genetic reality; rather, races are categories that society
invents, manipulates, or retires when convenient.’’ R. Delgado & J. Stefancic,
Critical Race Theory: An Introduction (New York University Press 3d Ed.
2017) p. 9. In this case, however, the defendant does not dispute the trial
court’s finding that he is Caucasian. Although the defendant claimed in
his motions to dismiss that the legislature’s purpose in enacting a statute
criminalizing the sale of marijuana was to discriminate against African
Americans and Mexican Americans, the defendant makes no argument that
he identifies as African American or Mexican American. Rather, the defen-
dant consistently argues that, although he is not a member of either class,
he is aggrieved because of his prosecution and conviction under an unconsti-
tutional statute. Accordingly, we confine our analysis to whether a Caucasian
defendant has standing to raise a challenge to a statute on the basis that it
violates the equal protection rights of a class of persons of which he is not
a member.
5
The United States Supreme Court’s holding in Bond has largely been
interpreted as confirming federalist principles. The court ultimately con-
cluded: ‘‘Just as it is appropriate for an individual, in a proper case, to invoke
[separation of powers] or [checks and balances] constraints, so too may a
litigant, in a proper case, challenge a law as enacted in contravention of
constitutional principles of federalism.’’ Bond v. United States, supra, 564
U.S. 223–24. Indeed, among scholars, the court’s decision in Bond has pro-
vided an opportunity to opine on contemporary and future federalism doc-
trine. See generally, e.g., H. Gerken, Comment, ‘‘Slipping the Bonds of Feder-
alism,’’ 128 Harv. L. Rev. 85 (2014); see also, e.g., A. LaCroix, ‘‘Redeeming
Bond?,’’ 128 Harv. L. Rev. F. 31 (2014) (response to H. Gerken, supra, 128
Harv. L. Rev. 85).
6
In addition to her reliance on third-party standing cases, Justice Ginsburg
cited Grayned v. Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222(1972), a case holding that a defendant had standing to assert an overbreadth
challenge to a local ordinance. Bond v. United States, supra, 564 U.S. 227(Ginsburg, J., concurring); see Grayned v. Rockford, supra, 114. According
to United States Supreme Court precedent, a defendant is ‘‘permitted to
raise [a statute’s] vagueness or unconstitutional overbreadth as applied to
others’’ under the first amendment to the United States constitution. (Internal
quotation marks omitted.) Gooding v. Wilson, 405 U.S. 518, 521, 92 S. Ct.
1103, 31 L. Ed. 2d 408 (1972). First amendment overbreadth challenges are
unique in that speakers may challenge a statute because it is overbroad as
applied to others, not themselves. See, e.g., New York v. Ferber, 458 U.S.
747, 769, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) (empowering persons to
‘‘attack overly broad statutes even though the conduct of the person making
the attack is clearly unprotected’’). The defendant has not asserted any such
first amendment overbreadth challenge in this case or demonstrated that a
similar exception to challenging the rights of others exists in this context.
7
The defendant also cites Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), and Doe v.
Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), cases in which
the United States Supreme Court concluded that physicians had standing
to challenge statutes criminalizing abortion because, in both cases, the
physicians asserted a ‘‘sufficiently direct threat of personal detriment,’’ as
their conduct was of the type the statutes criminalized. (Internal quotation
marks omitted.) Planned Parenthood of Central Missouri v. Danforth, supra,
62, quoting Doe v. Bolton, supra, 188. In contrast to the physicians in Doe
and Danforth, who had standing to assert claims based on the unconstitution-
ality of the statute at issue because the statutes affected their rights to
render abortion services and also subjected them to criminal punishment,
the defendant here does not allege a specific injury to himself as a seller
of marijuana. Put differently, the defendant challenges his conviction under
§ 21a-277 (b) because it violates the equal protection rights of others, not
because he was injured by the application of the statute as a vendor of
marijuana. Thus, precedent that bases a party’s standing on the intertwined
relationship between doctor and patient—or buyer and seller—is inapplica-
ble.
8
The United States Supreme Court has explained that a party may bring
an action on behalf of third parties when it meets the requirements of article
three standing and makes two additional showings. See, e.g., Kowalski v.
Tesmer, 543 U.S. 125, 129–30, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004). First,
‘‘the party asserting the right [must have] a ‘close’ relationship with the
person who possesses the right. . . . Second . . . there [must exist] a ‘hin-
drance’ to the possessor’s ability to protect his own interests.’’ (Citation
omitted.) Id., 130, quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364,
113 L. Ed. 2d 411 (1991). The defendant expressly maintained before the
Appellate Court; State v. Bradley, supra, 195 Conn. App. 50; and at oral
argument before this court, that he does not claim to have met the require-
ments to assert any such representational claim.