DeFunis v. Odegaard, 42198

Citation84 Wn.2d 617,529 P.2d 438
Decision Date12 December 1974
Docket NumberNo. 42198,42198
PartiesMarco DeFUNIS et al., Respondents, v. Charles ODEGAARD, President of the University of Washington, et al., Appellants.
CourtUnited States State Supreme Court of Washington

Slade Gorton, Atty. Gen., James B. Wilson, Sr. Asst. Atty. Gen., Seattle, for appellants.

Lycette, Diamond & Sylvester, Josef Diamond, Seattle, for respondents.

HAMILTON, Associate Justice.

In DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), the minority admissions policy of the law school of the University of Washington was challenged upon equal protection grounds. We upheld the policy. Marco DeFunis, Jr. (hereafter referred to as plaintiff), sought review of our decision by the United States Supreme Court. Plaintiff's petition for certiorari was granted. Following submission of the cause, the Supreme Court determined that the controversy as between the parties had become moot, vacated our judgment, and remanded the cause to this court. The per curiam opinion rendered by the Supreme Court on April 23, 1974 reads in part as follows:

Because the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties. Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such proceedings as by that Court may be deemed appropriate.

(Footnote omitted.) (Italics ours.) DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 1707, 40 L.Ed.2d 164, 170--171 (1974).

The mandate of the Supreme Court dated June 26, 1974, as amended by order of the Court on June 24, 1974, in operative part, provides:

AND WHEREAS, in the 1973 Term, the said cause came on to be heard before the SUPREME COURT OF THE UNITED STATES on the said transcript of record, and was argued by counsel:

ON CONSIDERATION WHEREOF, it was ordered and adjudged on April 23, 1974, by this Court that the judgment of the Supreme Court of Washington be vacated, and that this case be remanded to the Supreme Court of the State of Washington for such proceedings as by that Court may be deemed appropriate.

NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In the interim, between the rendition of the opinion and the mandate of the Supreme Court, plaintiff moved in this court to designate this case as a class action and to reinstate the Superior Court judgment from which the original appeal was taken. Defendants in turn moved to reinstate the judgment of this court.

We perceive two questions arising out of these motions. First, does there exist a proper basis upon which to reinstate this case as a class action? Second, what disposition of this case should this court make in light of the opinion and mandate of the Supreme Court?

Before resolving these questions, it is appropriate to briefly summarize the relevant background facts.

In 1971, 1,601 applicants sought admission as first-year students at the University of Washington School of Law. Only 150 places were available for the incoming first-year class. Because of the attrition factor, some 330 were ultimately invited, of which 36 were minority group applicants with 18 of that group subsequently enrolling. Plaintiff as one of the 1,601 applicants was among the some 1,271 applicants denied admission. On his own behalf, and not as representative of any other person or class of persons, he instituted this suit in the Superior Court for King County challenging the university's minority admissions policy. He contended that, pursuant to the designated admissions policy, minority applicants with lesser qualifications than he were accorded admission preference thereby erecting a violation of the equal protection clauses of our state and federal constitutions. A 3-day trial in Superior Court ensued at the conclusion of which the trial judge on September 22 1971, ruled in plaintiff's favor and directed that plaintiff be admitted to the law school.

The defendants promptly complied with the Superior Court order, and plaintiff commenced his studies as a law student. Subsequently, the defendants filed a notice of appeal to this court.

On March 8, 1973, we issued our opinion reversing the trial court and holding that 'the minority admissions police of the law school, and the denial by the law school of admission to plaintiff, violate neither the equal protection clause of the fourteenth amendment to the United States Constitution nor Article 1, § 12 of the Washington State Constitution.' DeFunis v. Odegaard, 82 Wash.2d at 37, 507 P.2d at 1184. On May 16, 1973, we denied plaintiff's petition for rehearing and on May 24, 1973, plaintiff applied for a stay pending review of our decision by the Supreme Court of the United States. mr. Justice Douglas of the Supreme Court granted the stay and plaintiff continued with his legal education. On February 26, 1974, the matter was argued before the Supreme Court and submitted.

During the course of oral argument before the Supreme Court, counsel for both parties, in response to questions from the bench, advised the Court that plaintiff had registered, or was in the process of registering, for his final quarter in law school. Counsel for defendants also assured the Court that regardless of the outcome in this proceeding his registration would not be abrogated or his graduation and receipt of his degree in anywise affected assuming he successfully completed the last quarter. Also, in response to a question from the bench, counsel for plaintiff advised the Court that this was not a class action. With these assurances before it, the Supreme Court reached its conclusion of mootness upon the basis that '(t)he controversy between the parties has thus clearly ceased to be 'definite and concrete' and no longer 'touch(es) the legal relations of parties having adverse legal interests.'"' 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164, 169, (1974), citing Aetna Life Ins. Co. v Haworth, 300 U.S. 227, 240--241, 57 S.Ct. 461, 81 L.Ed. 617, 1008 A.L.R. 1000 (1937). Having so concluded, the Supreme Court disclaimed authority to reach the merits, vacated our judgment, and remanded the cause to us for such further proceedings as we deemed appropriate.

All assurances concerning plaintiff's standing in the law school upon which the Supreme Court relied in reaching its disposition have come to pass. Plaintiff has successfully completed his final quarter, graduated, received his juris doctorate degree, and has applied for and has undoubtedly taken the Washington State Bar Examination on the same footing as any applicant with like qualifications. Upon successful completion of his bar examination, and certification to that effect by the Board of Governors of the Washington State Bar Association, plaintiff will be entitled to admission as a bona fide member of the bar of this state. 1

Despite these now factual realities, plaintiff contends by his motion and in oral argument that this court should, for the first time in this protracted litigation, convert this case into a class action for the benefit of all persons in situations similar to his and all persons claiming to be excluded from the law school of the University of Washington by reason of preferences flowing to less qualified minorities under defendant's admissions policy. In conjunction with and as a part of his motion, plaintiff requests that we prescribe the manner in which notice shall be given to members of the class and, after such notice, rehear, reconsider, and overrule our original decision thereby affirming the initial judgment of the Superior Court.

We deny plaintiff's motion, thus answering the first question in the negative.

Paralleling Fed.R.Civ.P. 23(a), CR 23(a) succinctly sets forth the basic parameters for permissible class actions in the courts of the state of Washington. The rule provides:

Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all Only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) The representative parties will fairly and adequately protect the interests of the class.

(Italics ours.)

CR 23(c)(1) then requires:

(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

Class actions are specialized types of suits, and as a general rule must be brought and maintained in strict conformity with the requirements of CR 23.

In evaluating the applicability of CR 23(a)(4), the prerequisite that the interests of a purported class be fairly and adequately represented, one of the essential factors to be considered is the presence or absence of adversity within the asserted class. Conflicting or antagonistic interests among members of the alleged class in the subject matter of the litigation, necessitating a determination of priorities between class members, may render a class action an improper vehicle for seeking vindication of a given right. Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967); 7 C. Wright & A. Miller, Federal Practice and Procedure 638 (1972).

It may well be that at the outset of this litigation plaintiff could...

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