“ The “judge” has no standing to appeal anything. He isn’t a litigant. Is Sullivan really that oblivious?”
I believe he is a party in this action. He is essentially the defendant in the special suit brought against him by Flynn’s lawyer (Powell), in which she asked the appellate judges to order him to dismiss the prosecution of Flynn.
“I believe he is a party in this action.”
Don’t think so. He is not harmed in any way regardless of the Appeals Court ruling, so he has no standing. He is AFFECTED by the rule, but the ruling involves how he judges. It is as if the Appeals Court required him to allow a certain piece of evidence. He could not appeal that, although the prosecutor or defendant could.
Typically, in a mandamus suit against a trial court judge, the suit is nominally against the judge, but actually against the "real party in interest." The "real party in interest" is just that, the party whose side the judge took in the ruling for which reversal by writ of mandamus is sought.
The real party in interest defends the mandamus suit, and the judge goes about his/her business. Where a judge would not typically be allowed to accept free legal services, and would at a minimum have to disclose them as a gift, if a law firm defended him without charge in a divorce, or foreclosure, the law recognizes that although the judge is nominally sued personally, the real party in interest is the real defendant in the mandamus, and the legal services are actually rendered on its behalf, not the judges.
Since both sides are in agreement that the prosecution should be dismissed, you have the ummm, 'unusual' spectacle of a judge personally defending his actions in the court of appeals. If he loses, may he appeal that decision, of have his ummm, 'amicus' do it for him?
I dunno.