**************************************************************** The ‘‘officially released’’ date that appears near the

beginning of this opinion is the date the opinion was

released as a slip opinion. The operative date for the

beginning of all time periods for filing postopinion

motions and petitions for certification is the ‘‘officially

released’’ date appearing in the opinion.

This opinion is subject to revisions and editorial

changes, not of a substantive nature, and corrections

of a technical nature prior to publication in the

Connecticut Law Journal. ****************************************************************
STATE v. BRADLEY—DISSENT

ECKER, J., dissenting. The majority holds that the

defendant, William Hyde Bradley, does not have standing to challenge the constitutionality of the statute

under which he was convicted, General Statutes § 21a277 (b). This holding is counterintuitive because the

standing doctrine exists, as the majority correctly

states, to ensure that a litigant has a ‘‘ ‘real interest,’ ’’ as

opposed to merely a ‘‘ ‘general interest,’ ’’ in the subject

matter of the controversy. ‘‘Standing . . . is a practical

concept designed to ensure that courts and parties are

not vexed by suits brought to vindicate nonjusticiable

interests and that judicial decisions [that] may affect

the rights of others are forged in hot controversy, with

each view fairly and vigorously represented.’’ (Emphasis added; internal quotation marks omitted.) Soto v.

Bushmaster Firearms International, LLC, 331 Conn.

53, 96–97, 202 A.3d 262, cert. denied sub nom. Remington Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513,

205 L. Ed. 2d 317 (2019). In my view, a defendant facing

prosecution under § 21a-277 (b), which carries a maximum sentence of seven years of incarceration and a

$25,000 fine for a first offense; see General Statutes

§ 21a-277 (b) (2) (A); has sufficient motivation vigorously to pursue a claim that the statute is unconstitutional under the equal protection clause of the United

States constitution, regardless of the defendant’s race

or ethnicity. I respectfully dissent for this reason.

Elemental to the rule of law is the precept that ‘‘an

act of the legislature, repugnant to the constitution, is

void . . . .’’ Marbury v. Madison, 5 U.S. (1 Cranch)

137, 177, 2 L. Ed. 60 (1803). Justice Ruth Bader Ginsburg

stated a corollary to that proposition in Bond v. United

States, 564 U.S. 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269

(2011): ‘‘[a criminal] defendant . . . has a personal

right not to be convicted under a constitutionally invalid

law.’’ Id., 226 (Ginsburg, J., concurring). Among other

authorities, Justice Ginsburg cites in support an article

written by Professor Richard H. Fallon, Jr., a leading

legal scholar in the field of constitutional law. See id.,

citing R. Fallon, ‘‘As-Applied and Facial Challenges and

Third-Party Standing,’’ 113 Harv. L. Rev. 1321, 1331–33

(2000). Professor Fallon explains the connection

between Chief Justice John Marshall’s ‘‘valid law’’1 pronouncement in Marbury and a defendant’s standing

to challenge a conviction under an allegedly invalid

criminal law: ‘‘Within [Professor Fallon’s] understanding of constitutional law, the valid rule requirement is

fundamental. Its roots lie in the history and structure

of the [c]onstitution and in the deeper values that the

[c]onstitution serves. The notion that an ‘invalid law’

is not law at all underlies Marbury . . . . And the foundations of Marbury, in turn, inhere in the ideal of the

rule of law, which demands that ‘[t]he law should rule
officials, including judges,’ and precludes them from

imposing legal disabilities not authorized by (valid) law.

This ideal explains why it is almost universally acknowledged that criminal defendants must be set free when

the statutes under which they were convicted are held

invalid (under the [f]irst [a]mendment, for example),

even when their conduct is not absolutely privileged

against governmental regulation, and even when a lawmaking authority has attempted to prohibit their conduct. If the statute under which a defendant is convicted

is invalid . . . the defendant’s conviction must be

reversed for the sole and simple reason that there is

no constitutionally valid rule of law under which the

defendant could be sanctioned . . . . Through the history of American constitutionalism, there has been wide

debate about which (if any) ‘remedies’ for constitutional

violations are constitutionally required, but never about

the proposition that a defendant cannot be sanctioned

without the authority of a valid law.’’ (Footnotes omitted.) R. Fallon, supra, 1331–33.

The majority in the present case points out that Justice Ginsburg’s opinion in Bond is a concurrence and

finds it unpersuasive because the cases on which she

relies involve claims of third-party standing. Justice

Ginsburg’s citation to third-party standing cases does

not reflect any doctrinal confusion on her part. Her

concurring opinion makes two points. First, as I discussed, Justice Ginsburg contends that a criminal

defendant has first-party standing because he ‘‘has a

personal right not to be convicted under a constitutionally invalid law.’’ (Emphasis added.) Bond v. United

States, supra, 564 U.S. 226 (Ginsburg, J., concurring).

She relies on a fundamental due process principle, not

third-party standing cases, in support of this assertion.

See id., 226–27 (Ginsburg, J., concurring), citing North

Carolina v. Pearce, 395 U.S. 711, 739, 89 S. Ct. 2072,

23 L. Ed. 2d 656 (1969) (Black, J., concurring in part

and dissenting in part) (‘‘[d]ue process . . . is a guarantee that a man should be tried and convicted only in

accordance with valid laws of the land’’), and Ex parte

Siebold, 100 U.S. 371, 376–77, 25 L. Ed. 717 (1880) (‘‘[a]

conviction under [an unconstitutional law] is not merely

erroneous, but is illegal and void, and cannot be a legal

cause of imprisonment’’).

Justice Ginsburg then makes a second point, for

which she cites the third-party standing cases: if a third

party has standing to challenge ‘‘criminal laws infected

with discrimination,’’ then, a fortioari, the person actually prosecuted and punished under the allegedly

unconstitutional law must have standing. Bond v.

United States, supra, 564 U.S. 227 (Ginsburg, J., concurring); see id., 227 (‘‘[t]he [c]ourt must entertain the

objection [of discriminatory animus]—and reverse the

conviction—even if the right to equal treatment resides

in someone other than the defendant’’).2

If a litigant has

standing to challenge an invalid statute as a third party
on the basis of the harm it inflicts on another person,

Justice Ginsburg states, then, of course, the person

harmed (i.e., the criminal defendant) must have firstparty standing to challenge the statute being enforced

directly against him in a criminal prosecution. Cf.

Campbell v. Louisiana, 523 U.S. 392, 400, 118 S. Ct.

1419, 140 L. Ed. 2d 551 (1998) (holding that white defendant had third-party standing to raise equal protection

challenge to discriminatory selection of grand jurors

and also ‘‘ha[d] standing to litigate [the violation of] his

. . . own due process rights’’).

I regret that the majority opinion does not give greater

weight to Justice Ginsburg’s trenchant analysis. I would

suggest that the defendant in the present case, like the

petitioner in Bond, has a personal interest in vindicating

the underlying constitutional values at stake.3 The

defendant has a personalright not to be convicted under

a constitutionally invalid rule and to vindicate the precious values that, for the past 150 years, have been

enshrined in the equal protection clause. Racial and

ethnic equality is a value from which every individual

derives a profound and enduring benefit. Cf. Trafficante

v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.

Ct. 364, 34 L. Ed. 2d 415 (1972) (holding that white

tenant had standing to bring suit for racial discrimination in housing because both white and black tenants

are injured by ‘‘the loss of important benefits from interracial associations’’). Indeed, it becomes increasingly

obvious each day that all of us, regardless of our own

particular race or ethnicity, hold a collective interest

in equal treatment for all persons, and that such equality

can be achieved only if nonminorities stand with other

oppressed groups to enforce and vindicate equal rights.

The goal of equality under the law is doomed to fail if

only the oppressed groups themselves are permitted to

advocate for equal treatment.

Finally, although there may be other litigants with a

stronger interest than the defendant in vindicating the

abstract principles underlying the equal protection

clause, the standing doctrine does not require a litigant

to be the best (or even a strong) representative of the

interest at stake. See, e.g., Saunders v. KDFBS, LLC, 335

Conn. 586, 604, 239 A.3d 1162 (2020) (‘‘[a]ggrievement

is established if there is a possibility, as distinguished

from a certainty, that some legally protected interest

. . . has been adversely affected’’ (internal quotation

marks omitted)). Various cases striking down discriminatory statutes animated by archaic and overbroad generalizations regarding gender stereotypes, for example,

were litigated by male plaintiffs. See, e.g., Califano v.

Goldfarb, 430 U.S. 199, 201, 208, 97 S. Ct. 1021, 51 L.

Ed. 2d 270 (1977) (man challenged gender based discrimination under Federal Old-Age, Survivors, and Disability Insurance Benefits program, and court held that

statute was unconstitutional because ‘‘female insureds

received less protection for their spouses solely
because of their sex’’); Weinberger v. Wiesenfeld, 420

U.S. 636, 641, 651, 95 S. Ct. 1225, 43 L. Ed. 2d 514

(1975) (man challenged provision of Social Security

Act, arguing that it was ‘‘unconstitutional to the extent

that men and women are treated differently,’’ and court

agreed, holding that ‘‘the [gender based] distinction

. . . is entirely irrational’’). That fact may be ironic, but

it does not dilute the importance of the right being

vindicated or the personal interest motivating the party

litigating the claim. The defendant in the present case

was convicted and sentenced under what he claims to

be an invalid penal law. The defendant therefore has a

distinct personal interest sufficient to ensure that he

vigorously will litigate his constitutional attack on the

legitimacy of the statute

I would reverse the judgment of the Appellate Court

and remand the case to that court for a decision on the

merits of the defendant’s claim.

1 The ‘‘ ‘valid rule requirement’ ’’ encompasses ‘‘the notion that everyone

has a personal constitutional right not to be subjected to governmental

sanctions except pursuant to a constitutionally valid rule of law.’’ R. Fallon,

supra, 113 Harv. L. Rev. 1331.

2

In addition, numerous scholars have pointed out that the third-party

standing cases easily can be recast as first-party standing cases. See, e.g., W.

Fletcher, ‘‘The Structure of Standing,’’ 98 Yale L.J. 221, 244 (1988) (‘‘Properly

understood . . . [third-party] standing cases are not conceptually different

from other standing cases. In [third-party] standing cases, as in all standing

cases, the issue is a question of law on the merits: Does the plaintiff have

the right to enforce the legal duty in question?’’); see also R. Fallon, supra,

113 Harv. L. Rev. 1360 (observing that ‘‘commentators have argued that

many, if not most, seeming departures from the prohibition against thirdparty standing can be understood as applications of the familiar valid rule

requirement [i.e., as first-party standing cases]’’).

3 The majority contends that the defendant’s standing argument is circular

because his contention that ‘‘he has a right not to be convicted of [violating]

an unconstitutional statute assumes the merits of his equal protection claim.’’

The ‘‘circular’’ structure of defendant’s argument is a relatively common

feature of many cases in which a jurisdictional issue and the merits become

intertwined or even indistinguishable. See, e.g., Wolfork v. Yale Medical

Group, 335 Conn. 448, 466 n.11, 239 A.3d 272 (2020) (recognizing that, ‘‘in

certain circumstances the question of jurisdiction [may be so] intertwined

with the merits of the case [such] that the issue of whether the court has

jurisdiction over the plaintiffs’ claims and whether the plaintiffs ultimately

can prevail on those claims appear to turn on the same question’’ (internal

quotation marks omitted)); Angersola v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 277–78, 193 A.3d 520 (2018) (same).