Collusive and Friendly Suits

Collusive and Friendly Suits

The ban on advisory opinions can be sidestepped without anyone putting a direct question to a court, because a litigant who wants an answer can try to build a lawsuit around the question. A collusive suit is one in which the parties attempt to fabricate an actual case or controversy, and an Article III court will no more entertain it than it will entertain a request for advice.¹ The rule follows from the definition taught at the start of this chapter, which requires parties with adverse legal interests in a real dispute over their own legal relations.² A suit can carry every outward mark of ordinary litigation, including a complaint, a lawyer, and a named defendant, and still lack that adversity. In Muskrat, Congress failed to supply adversity by naming the United States as defendant, and the same limit binds private litigants, who cannot confer jurisdiction on a federal court by agreeing to be opponents.³ This section takes the rule in three parts: the manufactured dispute it forbids, the agreement between parties that it tolerates, and the deliberately provoked test case that it permits.

Manufactured Disputes

The reasons for refusing collusive suits are two, and they work at different levels. The first concerns the quality of the decision. The adversary system functions because each side has a motive to find the weak points in the other's position, so a court that hears two real opponents receives both sides of the legal question.⁴ When both litigants want the same result, no one has a reason to press the best argument against it, and the court receives the one-sided briefing that the adversary system exists to prevent. Suits brought mainly to obtain a particular ruling are for that reason more likely to be collusive and less likely to have every relevant issue briefed.⁵

The second reason concerns the structure of government, and it explains why the rule is applied principally in constitutional cases.⁶ Judicial review is justified as a byproduct of deciding a real dispute, so a litigant who lost a fight in the legislature could not be allowed to rewrite that loss as a lawsuit and ask a court to review the statute with no dispute behind it.⁷ The Court's own statement of the point is that "it never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."⁸ The first reason protects the court's information, and the second protects the line between adjudicating and legislating.

The standard illustration is a landlord who wants to challenge the constitutionality of a federal statute that regulates the rent he may charge. He provides one of his tenants with a lawyer and asks the tenant to file a friendly suit against him, alleging that his rents violate the statute, and the suit is filed in federal district court.⁹ The court must dismiss, because the absence of an actual dispute between adverse parties is fatal.¹⁰ The landlord chose the plaintiff, paid for the lawyer, and shaped the claim so that a constitutional question about his own rent ceiling would reach a court, while the tenant has no genuine quarrel of her own with him. One party is financing and controlling both sides of the case. The Court dismissed a suit as collusive on similar facts in United States v. Johnson.¹¹

Agreement Without Collusion

The collusion rule is sometimes stated as though the parties must actually disagree about everything, and that overstates it. A court has jurisdiction to render a judgment by default or on a plea of guilty, and it may order the naturalization of an alien although no one challenges the petition.¹² The reason is that the adversity Article III requires lies in the parties' opposed interests in what the judgment will do to them. A defendant who declines to contest still has a judgment entered against him that binds him, and no one arranged the dispute: the plaintiff pressed a claim the defendant did not choose to concede, and the prosecutor brought a charge the defendant faces the consequences of. Silence or surrender by one side therefore leaves the suit genuine, because the opposition of interests is real even when one party does not fight.

Collusion appears when the interests themselves line up. A suit is deemed collusive when one party is financing and controlling both sides, and there is no case or controversy when both litigants desire precisely the same result or when one party refuses to take a position on the merits and merely asks that the matter be resolved.¹³ The test runs in the opposite direction as well: there is adverseness in the Article III sense, even though the parties agree on the correct answer to the question presented, if they disagree about what result should follow once that question is resolved.¹⁴ What matters is whether anything remains at stake between them after the legal question is answered.

On an exam stem, the trap is to read friendly behavior as collusion. Students lose this issue when they treat cordial relations between the parties as the defect, when the question is whether their interests in the result are opposed. Parties can be polite, can agree on the law, and can even prefer a quick ruling, and the suit remains genuine so long as a judgment will affect their legal positions differently.

Provoked Test Cases

The second limit on the rule concerns a party who sets out to create the occasion for a constitutional ruling. It is not fatal to the existence of a case or controversy that a party has deliberately provoked a test case.¹⁵ Violating a regulatory statute for the purpose of creating a constitutional test is one of the best-known ways to challenge such a statute, and the test case does not lose its genuineness because of that purpose.¹⁶ The reason is that a challenger who loses suffers the consequences, so the opponent is real and the stake is real.¹⁷

The grocer and the landlord both arranged an occasion for a constitutional ruling, so purpose cannot be what separates them. The variables that moved the answer are who stands on the other side and who bears the cost of losing. The grocer's opponent is an independent prosecutor whom he does not control, and a loss costs him a penalty. The landlord's opponent is a plaintiff he equipped and directed, and a loss on that plaintiff's claim costs the landlord nothing he did not want. Famous decisions have come from test cases in which both opposing parties advocated a constitutional resolution in their own favor on a contentious issue.¹⁸ The Court has not always applied the collusion rule rigidly either, since some of its best-known constitutional decisions came in cases that now look collusive.¹⁹ Even where adversity falls short of defeating jurisdiction, the Court will not pass on the constitutionality of legislation in a friendly, nonadversary proceeding, which is the first of the rules of restraint taken up in the closing section of this chapter.²⁰