State v. Bradley ( 2019 )

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STATE OF CONNECTICUT v. WILLIAM
HYDE BRADLEY
(AC 42061)
(AC 42062)
DiPentima, C. J., and Keller and Sheldon, Js.
Syllabus
The defendant appealed to this court from the judgments of the trial court
rendered in accordance with his conditional pleas of nolo contendere
to charges of sale of a controlled substance and violation of probation.
The charges stemmed from the discovery by probation officers of
approximately thirty ounces of marijuana in the defendant’s possession
while they were conducting a home visit at his residence. At that time,
the defendant was serving a sentence of probation in connection with
a prior conviction of possession of marijuana with intent to sell. The
defendant filed motions to dismiss the charges, claiming, inter alia, that
his prosecution under Connecticut’s statutes criminalizing the posses-
sion and sale of marijuana violated his rights under the equal protection
clause of the United States constitution because such statutes were
enacted for the illicit purpose of discriminating against persons of Afri-
can-American and Mexican descent. Following a hearing on the motions,
the trial court, relying on State v. Long (268 Conn. 508), in which our
Supreme Court stated that a genuine likelihood of criminal liability is
sufficient to confer standing to challenge a statute, determined that
although the defendant is Caucasian, he had standing to raise an equal
protection challenge to the statutes under which he was charged, con-
cluding that the defendant did not necessarily need to be a member of
the class discriminated against by a challenged statute to be personally
aggrieved by the statute. The trial court, however, denied the defendant’s
motions, ruling that he could not prevail on the merits of his equal
protection claim. On the defendant’s consolidated appeals to this court,
held that the defendant could not prevail on his claim that the trial
court erred in denying his motions to dismiss: although the trial court
misapplied the rule set forth in Long and thereby incorrectly concluded
that the defendant did not necessarily need to be a member of the class
discriminated against to be personally aggrieved by a challenged statute,
it nevertheless properly denied the motions to dismiss, as the defendant,
who is not a member of the subject minority groups, lacked standing
to raise his equal protection claim in his individual capacity because he
did not demonstrate that he had a personal interest that had been
or could ever be at risk of being injuriously affected by the alleged
discrimination in the enactment of the relevant statute (§ 21a-277 [b]),
and his claim did not allege a specific injury to himself beyond that of
a general interest of all marijuana sellers facing conviction under that
statute; moreover, a balancing of the factors set forth in Powers v. Ohio
(499 U.S. 400) pertaining to third-party standing weighed against the
defendant having standing to raise an equal protection claim on behalf
of the racial and ethnic minorities who possessed the constitutional
rights that were allegedly violated, as the relationship between the defen-
dant and those third parties was not close, and there existed no hin-
drance to the ability of a criminal defendant who is a member of a racial
or ethnic minority group charged under § 21a-277 (b) from asserting his
or her own constitutional rights in his or her own criminal prosecution.
Argued September 19—officially released December 24, 2019
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 sale of a
controlled substance and violation of probation; judg-
ments in accordance with the pleas; subsequently, the
state entered a nolle prosequi on the charge of posses-
sion of one-half ounce or more of a cannabis-type sub-
stance within 1500 feet of a school, and the defendant
filed separate appeals to this court, which consolidated
the appeals. Affirmed.
Naomi T. Fetterman, with whom was Aaron J.
Romano, for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael Gailor, state’s attor-
ney, and Russell Zentner, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
SHELDON, J. In this consolidated appeal, the defen-
dant, William Hyde Bradley, appeals from judgments
that were rendered against him by the trial court follow-
ing his entry of conditional pleas of nolo contendere
to charges of sale of a controlled substance in violation
of General Statutes § 21a-277 (b) and violation of proba-
tion in violation of General Statutes § 53a-32. On appeal,
the defendant claims that the court erred in denying
his motions to dismiss those charges, wherein he
argued, inter alia, that his prosecution under Connecti-
cut’s statutes criminalizing the possession and sale of
marijuana violated his rights under the equal protection
clause of the United States constitution because such
statutes were enacted for the illicit purpose of discrimi-
nating against persons of African-American and Mexi-
can descent. We affirm the judgments of the court,
concluding that it did not err in denying the defendant’s
motions to dismiss. We do so, however, on the alterna-
tive ground raised by the state that the defendant, as
a nonmember of either group of persons against whom
he claims that the challenged statutes were enacted to
discriminate, lacked standing to bring such an equal
protection claim. Accordingly, we do not reach the mer-
its of the defendant’s equal protection claim on this
appeal.
The following procedural history and facts, as stipu-
lated to by the parties, are relevant to our resolution
of this appeal. On January 13, 2017, while the defendant
was serving a sentence of probation in connection with
a prior conviction of possession of marijuana with
intent to sell, probation officers conducting a home visit
at his residence discovered approximately thirty ounces
of marijuana in his possession. On the basis of that
discovery, the state charged the defendant, in two sepa-
rate informations, as follows: in docket number M09M-
CR17-0210994-S, with one count each of possession of
one-half ounce or more of marijuana within 1500 feet
of a school in violation of General Statutes § 21a-279
(b) and sale of a controlled substance in violation of
§ 21a-277 (b); and in docket number MMX-CR14-
0204977-T, with violation of probation in violation of
§ 53a-32.
The defendant moved to dismiss the charges by filing
two parallel motions to dismiss, one in each docket
number. He argued in those motions, inter alia, that his
prosecution under Connecticut’s statutes criminalizing
the possession and sale of marijuana violated (1) his
right to equal protection under the fourteenth amend-
ment to the United States constitution because such
statutes were enacted for the illicit purpose of discrimi-
nating against persons of African-American and Mexi-
can descent; and (2) his right to equal protection under
article first, § 20, of the constitution of Connecticut
because the enforcement of such statutes had a dispa-
rate impact on persons of African-American descent.
The state filed a memorandum of law in opposition
to the defendant’s motions to dismiss, to which the
defendant responded by filing a reply. Following a hear-
ing on the motions, the court ordered the parties to
file supplemental memoranda addressing whether the
defendant, whom the court had found to be Caucasian,
had standing to bring an equal protection challenge to
statutes on the ground that they had been enacted for
the purpose of discriminating against members of racial
or ethnic minority groups of which he was not a mem-
ber. After the parties filed their supplemental memo-
randa, the court heard oral argument. Thereafter, in a
memorandum of decision dated June 1, 2018, the court
agreed with the defendant that, regardless of his race or
ethnicity, he had standing to bring an equal protection
challenge to the statutes under which he was charged
because there was a genuine likelihood that he, as a
person so charged, would be convicted under those
statutes. The court went on to rule, however, that the
defendant could not prevail on the merits of his equal
protection claim because even if he could prove that
enforcement of the challenged statutes had a disparate
impact on persons of African-American or Mexican
descent, he could not prove that the legislature’s true
purpose in enacting those statutes was to discriminate
against the members of either such group. Thereafter,
upon conducting an analysis under State v. Geisler, 222
Conn. 672, 685, 610 A.2d 1225 (1992), the court also
rejected the defendant’s additional claim that his prose-
cution under the challenged statutes violated his rights
under the equal protection clause of the Connecticut
constitution, which he had based on the theory that
that provision affords greater protection than its federal
counterpart because violation of that provision, unlike
the federal equal protection clause, can be established
by proof of disparate impact alone.1 Rejecting that argu-
ment, the court denied the defendant’s motions to dis-
miss in their entirety.
On August 28, 2018, the defendant entered pleas of
nolo contendere to charges of sale of a controlled sub-
stance and violation of probation, which were based
on his alleged possession of, with intent to sell, the
marijuana that the probation officers had found in his
residence. The defendant’s pleas, which were entered
pursuant to General Statutes § 54-94a, were conditioned
on preserving his right to appeal from his resulting
convictions based on the trial court’s prior denial of
his motions to dismiss. The court thereafter sentenced
the defendant as follows: on his conviction of sale of
a controlled substance, he was sentenced to an uncondi-
tional discharge; and on his violation of probation, his
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. These appeals,
later consolidated by order of this court, followed.2
On appeal, the defendant claims that the court
improperly denied his motions to dismiss. He argues
here, as he did before the trial court, that Connecticut’s
statutes criminalizing the possession and sale of mari-
juana were enacted for the illicit purpose of discriminat-
ing against persons of African-American and Mexican
descent, and thus that his prosecution under those stat-
utes violated the equal protection clause of the United
States constitution. The defendant does not claim, how-
ever, that the court erred in denying his alternative equal
protection claim under the Connecticut constitution.
In his brief, the defendant initially traces the history
of cannabis cultivation from ancient times through the
time of its criminalization in Connecticut in the 1930s.
He then describes and documents what he claims to
have been the pervasive atmosphere in this country in
the 1930s of discrimination against racial and ethnic
minority groups whose members were known or
believed to use marijuana. Against this background, he
argues that the federal marijuana prohibition that was
enacted in that time frame, for the illicit purpose of
discriminating against African-Americans and Mexi-
cans, influenced several states, including Connecticut,
to enact their own state laws criminalizing the posses-
sion and sale of marijuana for the same discriminatory
purpose. The state disputes the defendant’s contention
that Connecticut’s statutes criminalizing the possession
and sale of marijuana were enacted for the purpose of
discriminating against racial and ethnic minorities. As
a threshold matter, however, it argues, as it did before
the trial court, that the court lacked subject matter
jurisdiction over the defendant’s equal protection claim
because, as a Caucasian, he lacked standing to vindicate
the equal protection rights of members of racial or
ethnic minority groups to which he did not belong. The
defendant counters by arguing, as he did successfully
before the trial court, that regardless of his race or
ethnicity, he had standing to raise his constitutional
claim because, as a person charged under such allegedly
unconstitutional statutes, he personally faced a genuine
risk of being convicted thereunder if he were not permit-
ted to prosecute his motions to dismiss.
Because a party’s lack of standing to bring a claim
implicates the trial court’s subject matter jurisdiction
over that claim, we must first address this jurisdictional
issue. See New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583
(2009). We begin by reviewing some well established
principles of standing. ‘‘Generally, standing is inherently
intertwined with a court’s subject matter jurisdiction.
. . . We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . In addition,
because standing implicates the court’s subject matter
jurisdiction, the issue of standing is not subject to
waiver and may be raised at any time.’’ (Internal quota-
tion marks omitted.) State v. Brito, 170 Conn. App. 269,
285, 154 A.3d 535, cert. denied, 324 Conn. 925, 155 A.3d
755 (2017).
‘‘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, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question 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 suit or is
classically aggrieved. . . . The fundamental test for
determining [classical] aggrievement encompasses a
well-settled twofold determination: [F]irst, 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.) State v. Long, 268
Conn. 508, 531–32, 847 A.2d 862, cert. denied, 543 U.S.
969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).
To establish his standing to bring an equal protection
challenge to the statutes under which he was charged
in this case, the defendant does not claim that he was
authorized by statute to bring such a challenge or that
he had third-party standing to bring the challenge in a
representational capacity on behalf of others. Instead,
he claims only that he had standing to bring that chal-
lenge in his individual capacity, insisting that he is per-
sonally aggrieved by the statutes’ unconstitutionality
because he was charged with violating the statutes, and
thus faced a genuine risk of being convicted thereunder.
The court’s conclusion on the issue of standing, which
the defendant relies on before us, was that ‘‘the defen-
dant need not necessarily be a member of the class
discriminated against [by a challenged statute] in order
to be personally aggrieved by the statute. As our
Supreme Court has repeatedly concluded ‘a genuine
likelihood of criminal liability or civil incarceration is
sufficient to confer standing [to challenge a statute]’.
. . . State v. Long, supra, 268 Conn. 532 . . . .’’
(Emphasis omitted.) The state disagrees, arguing that
the defendant and the trial court misunderstood and
misapplied the rule set forth in Long, which was never
intended to empower litigants to raise claims in their
individual capacity based on alleged violations of oth-
ers’ constitutional rights. For the following reasons, we
agree with the state.
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 after a trial to the
court. Id., 511. The court thereafter committed the
defendant, on the basis of that finding, to the jurisdic-
tion of the Commissioner of Mental Health and Addic-
tion Services pursuant to General Statutes § 17a-582 (a)
for initial confinement and examination. Id., 511–12.
Following a mandatory psychiatric examination, the
commissioner issued a report concerning the defen-
dant’s mental health. Id., 512. Following a hearing, the
trial court ordered the defendant committed to the juris-
diction of the Psychiatric Security Review Board
(board) for a period of five years, which was the maxi-
mum period for such a commitment because it was
the maximum period for which he could have been
incarcerated had he been convicted of and sentenced
for the charged offense.3 Id. Prior to the expiration of
the defendant’s initial five year commitment, however,
the state’s attorney filed a petition, pursuant to General
Statutes § 17a-593 (c),4 to have the defendant’s commit-
ment extended beyond its initial five year term. Id.,
513. The trial court granted the state’s petition, and
thereafter recommitted him on three more occasions
pursuant to § 17a-593 (c). Id.
After the state filed its fifth petition for recommitment
in March, 2001, the board filed a report recommending
further recommitment. Id., 513. The defendant moved
to strike the board’s report and to dismiss the state’s
petition, claiming, inter alia, that once an acquittee
reaches the maximum term of his initial commitment,
any order granting a state’s petition for recommitment
pursuant to § 17a-593 (c) is unconstitutional because,
inter alia, it deprives the acquittee of his liberty without
affording him the same right to mandatory periodic
judicial review of his commitment as is afforded con-
victed prisoners who are civilly committed to psychiat-
ric treatment facilities while they are incarcerated serv-
ing criminal sentences. Id. The trial court at first denied
the defendant’s motion to dismiss and granted the
state’s petition for recommitment. Id., 514. Later, how-
ever, upon reconsidering its ruling sua sponte, the court
vacated its latest order of recommitment and granted
the defendant’s motion to dismiss the state’s petition
on the grounds, inter alia, that § 17a-593 (c) violated
(1) his right to equal protection under the United States
constitution because it treats acquittees, like the defen-
dant, differently from convicted prisoners who are civ-
illy committed at some point after they have been incar-
cerated, and (2) his right to equal protection under the
constitution of Connecticut because it discriminates on
the basis of mental disability. Id., 514–15. The court
nevertheless found that the state had proven that the
defendant ‘‘has a mental illness and would be a danger
to others were he discharged from confinement,’’ and
thus ordered that he be held for sixty days to permit
the state, if it chose to, to file a petition for civil commit-
ment. (Internal quotation marks omitted.) Id., 515. The
state appealed from the court’s judgment of dismissal
and challenged all grounds on which the court had
found § 17a-593 (c) to be unconstitutional. Id., 516. The
appeal was then transferred to our Supreme Court.
Id., 516.
On appeal, the state claimed, inter alia, that the defen-
dant lacked standing to bring either a state or a federal
equal protection challenge to § 17a-593 (c). Id., 530. The
state did not claim that the defendant lacked a specific,
personal and legal liberty interest in any recommitment
proceedings under § 17a-593 (c) but argued that his
liberty interest had not been specially and injuriously
affected by his recommitment because, as an acquittee,
he had already received more judicial review of his
commitment than a civil committee would have been
entitled to receive. Id., 532. In concluding that the defen-
dant had standing to raise his due process challenge,
our Supreme Court reasoned as follows: ‘‘We previously
have concluded that a genuine likelihood of criminal
liability or civil incarceration is sufficient to confer
standing. . . . [I]n the present case, the defendant
challenges the acquittee recommitment statute, § 17a-
593 (c), which, if applied to him in the future, could
subject him to further recommitment that adversely
would affect his liberty interest. Moreover, the trial
court specifically found at the most recent recom-
mitment 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 in accordance with § 17a-
593 (c). Consequently, because the defendant risks
actual prospective deprivation of his liberty interest
under the challenged statute, we conclude that he is
classically aggrieved, and has standing to challenge the
statute.’’ (Citations omitted; internal quotation marks
omitted.) Id., 532–33.
Understood against this background, Long cannot be
read to empower parties to bring constitutional chal-
lenges in their individual capacity based on alleged vio-
lations of others’ constitutional rights. Instead, it clari-
fies that, although a party has only individual standing
to challenge alleged violations of his own constitutional
rights, such challenges are not necessarily limited to
ongoing violations of those rights, but may be directed
to future violations of such rights that are reasonably
likely to occur. Had the defendant in Long risked no
‘‘actual prospective deprivation of his liberty interest
under the challenged statute’’ in the future, he would
not have had standing to challenge the statute in his
individual capacity on the basis of any risk, however
genuine, enforcement of the statute may have posed to
the rights of others.
To provide further context for the rule in Long, we
also examine Ramos v. Vernon, 254 Conn. 799, 761 A.2d
705 (2000), which was cited in Long. The ordinance at
issue in Ramos placed a nighttime curfew on minors
under the age of eighteen who were unaccompanied
by a parent, a guardian or another adult having custody
or control over them, and made it unlawful for any
adult having custody of or control over a minor under
the age of sixteen to allow the minor to violate the
curfew ordinance. Id., 802–805. The fourteen year old
minor plaintiff alleged that he had engaged in, and was
continuing to engage in, conduct considered unlawful
under the ordinance. Id., 810. The court concluded on
that basis that if the minor’s conduct continued in the
future as he had pleaded that it would, then both he
and his mother could be prosecuted under the statute
in the future and thus could be injured by its alleged
constitutional infirmity. Id., 810–11. Accordingly, the
court ruled that both the mother and the minor had
standing, in their individual capacities, to assert that
the ordinance violated their constitutional rights
because, in language later repeated by the court in Long,
‘‘a genuine likelihood of criminal liability or civil incar-
ceration is sufficient to confer standing.’’ (Internal quo-
tation marks omitted.) Id., 809.
Long and Ramos are thus inapposite to the present
case. First, the defendant in the present case was
charged under § 21a-277 (b) at the time of the motions
to dismiss, and thus the likelihood of its future applica-
tion against him is not at issue, as it was in Long and
Ramos. Second, the defendant in Long was a member
of the class of insanity acquittees whose rights he
sought to vindicate, just as the minor and his mother
in Ramos were members of the classes of persons
whose own rights were at genuine risk of being violated
if they were prosecuted under the challenged statute.
In the present case, by contrast, the defendant is not
a member of the class whose rights he seeks to vindi-
cate. The defendant in the present case is not now and
will never be a member of either minority group against
whom he claims the marijuana statutes were enacted
to discriminate, and, thus, he will never personally be
discriminated against on the basis of race or ethnicity
by virtue of application of § 21a-277 (b) to him. Simply
put, the defendant’s equal protection claim seeks to
redress rights of racial minorities, a class of which he
is not a member. Consequently, the defendant has not
demonstrated that he has a personal interest that has
been or could ever be at risk of being injuriously
affected by the alleged discrimination in the enactment
of the statute. The defendant’s argument that § 21a-277
(b) was enacted with a racially discriminatory purpose
does not allege a specific injury to himself beyond that
of a general interest of all marijuana sellers facing con-
viction under the statute.5
The trial court’s conclusion that ‘‘the defendant need
not necessarily be a member of the class discriminated
against [by a challenged statute] in order to be person-
ally aggrieved by the statute’’ is simply incorrect. First,
although controlling case law on rare occasion has per-
mitted litigants to establish standing by proving classi-
cal 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 the litigant himself be personally aggrieved by the
alleged violation. See, e.g., State v. Long, supra 268
Conn. 531–32 (classical aggrievement includes require-
ment of ‘‘a specific, personal and legal interest in [the
subject matter of the challenged action], as distin-
guished from a general interest’’ [internal quotation
marks omitted]). Second, although the defendant has
not claimed, and the trial court did not find, that he
was classically aggrieved in a representative capacity
by his prosecution under the challenged statutes, he
has not in any event met the exacting requirements
for the assertion of such a representational claim. The
defendant expressly states in his reply brief that he
does not claim to have third-party standing, and appro-
priately so, because third-party standing applies in lim-
ited circumstances that manifestly do not exist here.
Under federal law, a party ‘‘generally must assert his
own legal rights and interests, and cannot rest his claim
to relief on the legal rights or interests of third parties.
. . . This rule assumes that the party with the right has
the appropriate incentive to challenge (or not chal-
lenge) governmental action and to do so with the neces-
sary zeal and appropriate presentation. . . . It repre-
sents a healthy concern that if the claim is brought by
someone other than one at whom the constitutional
protection is aimed . . . the courts might be called
upon to decide abstract questions of wide public signifi-
cance even though other governmental institutions may
be more competent to address the questions and even
though judicial intervention may be unnecessary to pro-
tect individual rights . . . . We have not treated this
rule as absolute, however, recognizing that there may
be circumstances where it is necessary to grant a third
party standing to assert the rights of another.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Kowalski v. Tesmer, 543 U.S. 125, 129–30, 125 S. Ct.
564, 160 L. Ed. 2d 519 (2004).
In cases involving this principle, such as Powers v.
Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411
(1991), the United States Supreme Court explained that
it has permitted parties to bring actions on behalf of
third parties provided that the party makes two addi-
tional showings, beyond that of an article three injury:
(1) ‘‘close relation to the third party’’ who possesses
the right and (2) ‘‘some hindrance to the third party’s
ability to protect his or her own interests.’’ Id., 410–11;
see also Kowalski v. Tesmer, supra, 543 U.S. 130
(describing two additional factors in Powers).
With respect to the first factor, the United States
Supreme Court explained that ‘‘in certain circum-
stances the relationship between the litigant and the
third party may be such that the former is fully, or
very nearly, as effective a proponent of the right as the
latter.’’ (Internal quotation marks omitted.) Powers v.
Ohio, supra 499 U.S. 413. This factor is more likely to
weigh in favor of standing if the relationship between
the third party and the litigant seeking standing is ‘‘one
of special consequence.’’ Caplin & Drysdale, Chartered
v. United States, 491 U.S. 617, 623 n.3, 109 S. Ct. 2646,
105 L. Ed. 2d 528 (1989). For example, a doctor-patient
relationship and an attorney-client relationship have
qualified as close relationships for this purpose, mainly
due to the professionally intimate advice and decisions
arising from such relationships. See, e.g., United States
Dept. of Labor v. Triplett, 494 U.S. 715, 719–21, 110 S.
Ct. 1428, 108 L. Ed. 2d 701 (1990) (attorney had standing
to raise due process claims to fee restrictions on behalf
of clients he represented in black lung benefit cases);
Singleton v. Wulff, 428 U.S. 106, 117–18, 96 S. Ct. 2868,
49 L. Ed. 2d 826 (1976) (physician ‘‘intimately involved’’
in women’s abortion decision and thus ‘‘uniquely quali-
fied’’ to litigate against statutory interference with that
decision); Griswold v. Connecticut, 381 U.S. 479, 85 S.
Ct. 1678, 14 L. Ed. 2d 510 (1965) (physician and Planned
Parenthood official were effective advocates for per-
sons seeking contraceptive advice with whom they had
confidential professional relationships).
In the context of market access, sellers who asserted
the rights of buyers seeking access to their market have
been found to have a sufficiently close relationship with
such buyers to give them standing to raise the buyers’
claims. The United States Supreme Court in Craig v.
Boren, 429 U.S. 190, 192–97, 97 S. Ct. 451, 50 L. Ed. 2d
397 (1976), held that a licensed vendor of 3.2 percent
beer had standing to challenge the constitutionality of
a statute that, in a gender discriminatory manner, pro-
hibited the sale of 3.2 percent beer to males under the
age of twenty-one and females under the age of eigh-
teen. The court reasoned that the vendor might be
deterred by the statutory sanctions thereby causing
indirect harm to the rights of third parties and, accord-
ingly, was permitted to act as an advocate for third
parties seeking access to the market. Id., 195. Relying
primarily on Craig, the United States Supreme Court
in Carey v. Population Services International, 431 U.S.
678, 681–84, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), held
that a corporation engaged in the mail order retail sale
of nonmedical contraceptive devices had standing on
its own behalf and on behalf of potential customers
who sought access to its market to challenge the consti-
tutionality of a statute criminalizing the distribution
of contraceptives to anyone under the age of sixteen,
prohibiting their distribution to anyone over the age of
sixteen by anyone other than a licensed pharmacist,
and banning the advertising and display of contracep-
tives. The court reasoned that the corporation ‘‘is
among the vendors and those in like positions (who)
have been uniformly permitted to resist efforts at
restricting their operations by acting as advocates for
the rights of third parties who seek access to their
market or function. . . . As such, [the corporation] is
entitled to assert those concomitant rights of third par-
ties that would be diluted or adversely affected should
(its) constitutional challenge fail.’’ (Citations omitted;
internal quotation marks omitted.) Id., 683–84.
Those who act as advocates for the rights of others
have also been held to have third-party standing. Thus,
in Eisenstadt v. Baird, 405 U.S. 438, 440, 92 S. Ct. 1029,
31 L. Ed. 2d 349 (1972), the defendant, who had been
convicted of providing a contraceptive device to a
woman following a lecture on contraception, was held
to have standing to challenge the statute that made it
a felony for anyone other than a registered physician
or registered pharmacist to distribute contraceptives.
The court determined that the defendant’s relationship
with ‘‘those whose rights he seeks to assert is not simply
that between a distributor and potential distributees,
but that between an advocate of the rights of persons
to obtain contraceptives and those desirous of doing
so. The very point of [the defendant’s] giving away the
vaginal foam was to challenge the Massachusetts stat-
ute that limited access to contraceptives.’’ Id., 445.
In Barrows v. Jackson, 346 U.S. 249, 251–60, 73 S.
Ct. 1031, 97 L. Ed. 1586 (1953), a Caucasian defendant,
who was party to a racially restrictive covenant and
who was being sued for damages by the covenantors
because she had conveyed her property to African-
Americans, was held to have standing to challenge the
enforcement of the covenant on the ground that it vio-
lated the equal protection rights of prospective African-
American purchasers. The United States Supreme
Court, in a later case, explained that ‘‘[t]he relationship
[in Barrows] between the defendant and those whose
rights he sought to assert was . . . between one who
acted to protect the rights of a minority and the minority
itself.’’ Eisenstadt v. Baird, supra, 405 U.S. 445.
In Powers, the United States Supreme Court con-
cluded that the defendant had standing to contest the
use of peremptory challenges in a racially discrimina-
tory manner regardless of whether the defendant and
the excluded jurors were of the same race. Powers v.
Ohio, supra, 499 U.S. 410–16. The court stated: ‘‘For
over a century, this Court has been unyielding in its
position that a defendant is denied equal protection of
the laws when tried before a jury from which members
of his or her race have been excluded by the State’s
purposeful conduct. The Equal Protection Clause guar-
antees the defendant that the State will not exclude
members of his race from the jury venire on account
of race . . . . [A defendant] does have the right to be
tried by a jury whose members are selected by nondis-
criminatory criteria.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 404. After setting forth such
principles, the court considered ‘‘whether a criminal
defendant has standing to raise the equal protection
rights of a juror excluded from service in violation of
these principles.’’ Id., 410. The court determined that
the defendant and the excluded jurors shared a close
relationship that began during voir dire and had a ‘‘com-
mon interest in eliminating racial discrimination from
the courtroom.’’ Id., 413. The court reasoned that the
juror excluded on the basis of race suffers humiliation
and ‘‘may lose confidence in the court and its verdicts,
as may the defendant if his or her objections cannot
be heard. This congruence of interests makes it neces-
sary and appropriate for the defendant to raise the rights
of the juror.’’ Id., 414.
The second factor in assessing third-party standing
‘‘involves the likelihood and ability of the third parties
. . . to assert their own rights.’’ Id., 414. The excluded
jurors in Powers faced ‘‘daunting’’ obstacles to bringing
an action on their own behalf, which included not only
‘‘the economic burdens of litigation’’ but the fact that
‘‘[p]otential jurors are not parties to the jury selection
process and have no opportunity to be heard at the
time of their exclusion. Nor can excluded jurors easily
obtain declaratory or injunctive relief when discrimina-
tion occurs through an individual prosecutor’s exercise
of peremptory challenges.’’ Id., 414. The facts in Bar-
rows v. Jackson, supra, 346 U.S. 249, presented ‘‘a
unique situation in which it is the action of the state
court which might result in a denial of constitutional
rights and in which it would be difficult if not impossible
for the persons whose rights are asserted to present
their grievance before any court.’’ Id., 257. The United
States Supreme Court further reasoned that the cove-
nantor in Barrows had the power under the racially
discriminatory restrictive covenant to continue or end
discrimination and was the only effective adversary of
the restrictive covenant. Id., 258.
In Singleton v. Wulff, supra, 428 U.S. 117, there were
‘‘several obstacles’’ in a woman’s path to challenging
an abortion statute, such as privacy and imminent moot-
ness. Although the obstacles were not ‘‘insurmount-
able’’ due to the ability to bring an action under a pseud-
onym and exceptions to the mootness doctrine, the
court noted that there was little loss in terms of effective
advocacy by permitting a physician to raise the claim.
Id., 118; see also Carhart v. Stenberg, 972 F. Supp. 507,
520–21 (D. Neb. 1997) (‘‘the pregnant women who are
the doctor’s patients have significant obstacles to bring-
ing suit on their own, such as a desire for privacy and
the likelihood that their claims would be mooted by
the time-sensitive nature of pregnancy and abortion’’).
We now examine these principles in the context of
the present case. We conclude that a balancing of the
factors, while bearing in mind the exceptional nature
of third-party standing, weighs against the defendant
having standing to raise a claim on behalf of classes of
racial and ethnic minorities to which he does not
belong. With respect to the factor of a close relationship,
the defendant obviously does not have a professional
or confidential relationship with the possessors of the
right, such as the physician had with his patients in
Singleton or the lawyer had with his clients in Triplett.
The defendant does not raise a market access claim
seeking to assert the rights of racial and ethnic minority
marijuana purchasers similar to the claim of the beer
vendor in Craig or the retail seller of contraceptives
in Carey. In contrast to the relationship of trust that
existed in Powers between the defendant and excluded
jurors that began during voir dire, the defendant in
the present case seeks to advocate for the rights of
hypothetical persons with whom he has no relation.
The interests of the defendant and those who possess
the right are similar to the extent that we fairly may
assume that neither wishes to be convicted under the
statute. The defendant, however, has not made a show-
ing that, in being charged with sale of a controlled
substance, he sought to advocate on behalf of racial
or ethnic minority sellers or purchasers. In fact, he
expressly disavows such a purpose. Therefore, his
actions in selling marijuana do not create a close rela-
tionship with the third parties in any way similar to the
advocate in Barrows, who conveyed her property to
African-Americans in violation of a racially discrimina-
tory covenant, or the advocate in Eisenstadt, who gave
away a contraceptive device in order to challenge a
statute criminalizing such action. Rather, the defendant
in the present case expresses only a general interest in
avoiding prosecution, independent of any relationship
or connection to the possessors of the right he claims
to have been violated. Therefore, it cannot be said that
the defendant ‘‘is fully, or very nearly, as effective a
proponent of the right as the [third party].’’ Singleton
v. Wulff, supra, 428 U.S. 115.
The relationship between the defendant and the third
parties is not close, but even if it were close, the impor-
tance of the ability of a minority marijuana seller to
raise a claim on his or her own behalf is not diminished.
In Singleton the plurality opinion stated: ‘‘Even where
the relationship is close, the reasons for requiring per-
sons to assert their own rights will generally still apply.
If there is some genuine obstacle to such assertion,
however, the third party’s absence from court loses its
tendency to suggest that his right is not truly at stake,
or truly important to him, and the party who is in court
becomes by default the right’s best available propo-
nent.’’ Id., 116. The daunting obstacles the excluded
jurors faced in Powers to challenging the racially dis-
criminatory use of preemptory challenges on their own
behalf, such as the expense of litigation and the fact
that they are not parties to the jury selection process,
and the barriers discussed in Singleton to a women’s
ability to challenge an abortion statute, do not exist in
the present case. See Caplin & Drysdale, Chartered v.
United States, supra, 491 U.S. 624 n.3 (‘‘[t]he second
. . . factor [of hindrance] counsels against review . . .
a criminal defendant suffers none of the obstacles dis-
cussed in [Singleton v.] Wulff, supra, 428 U.S. [116–117],
to advancing his own constitutional claim’’). In the crim-
inal context, the state’s proper presentment of an infor-
mation initiates the case. State v. Pompei, 52 Conn.
App. 303, 307, 726 A.2d 644 (1999). It is axiomatic that
criminal defendants are parties to their own criminal
proceedings, and Gideon v. Wainwright, 372 U.S. 335,
342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), made the
sixth amendment right to counsel applicable to state
prosecutions through the due process clause of the
fourteenth amendment. In the present case, the second
factor overwhelmingly weighs against third-party stand-
ing because there exists no hindrance to the ability of
a criminal defendant who is a member of a racial or
ethnic minority group charged under § 21a-277 (b) from
asserting his or her own constitutional rights in his or
her own criminal prosecution.
Our conclusion that the defendant does not have
third-party standing coincides with the purposes of the
general rule under Connecticut law against third-party
standing. Regarding the general principles of standing,
this court has explained that ‘‘the requirement that a
party have standing ensures that courts and parties are
not hindered by suits brought to vindicate nonjusticia-
ble interests, and protects the rights of others from
being affected by precedential judicial decisions that
do not involve the individuals or entities with the most
at stake and may not have been contested with the
appropriate diligence and vigor.’’ Third Taxing District
v. Lyons, 35 Conn. App. 795, 798, 647 A.2d 32, cert.
denied, 231 Conn. 936, 650 A.2d 173 (1994). ‘‘Only mem-
bers of a class whose constitutional rights are endan-
gered by a statute may ask to have it declared unconsti-
tutional. . . . Courts are instituted 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).
For the foregoing reasons, we conclude that the
defendant does not have standing to raise his equal
protection claim. We therefore uphold the court’s denial
of the defendant’s motions to dismiss on this dispositive
alternative ground.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The court also rejected the defendant’s claim that Connecticut law on
the possession and sale of marijuana has been superseded by federal law.
The defendant does not appeal from the court’s rejection of this claim.
2
The defendant filed two separate appeals from the trial court’s judgments.
The defendant filed a motion to consolidate the appeals, which was granted.
3
‘‘The trial court acted pursuant to General Statutes § 17a-582 (e) (1) . . .
which provides in relevant part: ‘If the court finds that the acquittee is a
person who should be confined or conditionally released, the court shall
order the acquittee committed to the jurisdiction of the board and . . .
confined in a hospital for psychiatric disabilities . . . for custody, care and
treatment pending a hearing before the board pursuant to section 17a-583;
provided (A) the court shall fix a maximum term of commitment, not to
exceed the maximum sentence that could have been imposed if the acquittee
had been convicted of the offense . . . .’ General Statutes (Rev. to 1985)
§ 53a-35a provides in relevant part: ‘For any felony committed on or after
July 1, 1981, the sentence of imprisonment shall be a definite sentence and
the term shall be fixed by the court as follows . . . (6) for a class D felony,
a term not less than one year nor more than five years . . . .’ ’’ State v.
Long, supra, 268 Conn. 512 n.8.
4
General Statutes § 17a-593 (c) provides in relevant part: ‘‘If reasonable
cause exists to believe that the acquittee remains a person with psychiatric
disabilities . . . to the extent that his discharge at the expiration of his
maximum term of commitment would constitute a danger to himself or
others, the state’s attorney, at least one hundred thirty-five days prior to such
expiration, may petition the court for an order of continued commitment
of the acquittee.’’
5
In support of the argument that he has standing to raise the equal protec-
tion claim on his own behalf, the defendant highlights the following quote
from Justice Ginsberg’s concurrence in Bond v. United States, 564 U.S. 211,
227, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011): ‘‘Our decisions concerning
criminal laws infected with discrimination are illustrative. The Court must
entertain the objection—and reverse the conviction—even if the right to
equal treatment resides in someone other than the defendant.’’ First, concur-
ring opinions do not establish binding precedent. Second, we are not required
to apply federal precedent in determining the issue of aggrievement. See
Burton v. Freedom of Information Commission, 161 Conn. App. 654, 660,
129 A.3d 721 (2015), cert. denied, 321 Conn. 901, 136 A.3d 642 (2016).
The defendant also cites to federal cases in which the parties have been
conferred with both standing in their own right and with third-party standing.
See Carey v. Population Services International, 431 U.S. 678, 682–84, 97
S. Ct. 2010, 52 L. Ed. 2d 675 (1977) (mail order retailer’s business of selling
contraceptives criminalized); Craig v. Boren, 429 U.S. 190, 192–97, 97 S. Ct.
451, 50 L. Ed. 2d 397 (1976) (beer vendor’s act of selling 3.2 percent beer
to male patrons under age of twenty-one and females under age of eighteen
prohibited); Carhart v. Stenberg, 972 F. Supp. 507, 520–21 (D. Neb. 1997)
(doctor’s performance of certain abortion procedure criminalized). Federal
cases that analyze standing under article three of the federal constitution
are not applicable to the issue of whether the defendant was aggrieved in
his own right under Connecticut case law. See Andross v. West Hartford,
285 Conn. 309, 328–32, 939 A.2d 1146 (2008). We note, however, that these
cases are readily distinguishable. Assuming without deciding that the parties
in those cases would have been aggrieved under Connecticut law, the stat-
utes at issue in Carey, Craig, and Carhart differ from § 21a-277 (b). The
statutes in Carey, Craig and Carhart not only prohibited the conduct of
the parties seeking standing, but also intertwined that sanctioned conduct
with the rights of the third parties to access the goods or services at issue.
In the present case, § 21a-277 (b) criminalizes the defendant’s conduct in
selling marijuana, but does not intertwine the criminalization of the defen-
dant’s actions in selling marijuana with the rights of a racial minority seller
to be free from discrimination.