Johnson v. Moore, 42060

• Decision Date: 27 April 1972
• Docket Number: No. 42060,42060
• Parties: Application of James S. JOHNSON et al., Appellants, v. Frank MOORE, Acting Chief of Police of the City of Seattle, Respondent.
• Court: Washington Supreme Court

Page 531

80 Wn.2d 531

496 P.2d 334

Application of James S. JOHNSON et al., Appellants, v. Frank MOORE, Acting Chief of Police of the City of Seattle,

Respondent.

No. 42060.

Supreme Court of Washington, En Banc.

April 27, 1972.

John M. Darrah, Seattle King County Public Defender and Kenneth E. Kanev, Seattle, for appellants.

A. L. Newbould, Corp. Counsel, Charles R. Nelson, Asst. Corp. Counsel, Seattle, for respondent.

FINLEY, Associate Justice.

In this case the plaintiffs appeal from the superior court's dismissal of their class action seeking to terminate the alleged practice of holding individuals in the Seattle city jail 'on suspicion' of various crimes without bringing them promptly before a magistrate.

Appellants were held 'on suspicion' for varying lengths of time in the city of Seattle jail without being taken before a magistrate for arraignment and setting of bail. Appellant Johnson was allegedly held 'on suspicion of forgery' for approximately 116 hours; appellant Bobala 'on suspicion of narcotics' for approximately 90 hours; and appellant James 'on suspicion of being a fugitive from justice' for an undetermined period of time. Appellants initiated this class action on behalf of themselves and all other persons arrested and held in the city jail without charge. They sought relief under several procedural-remedial categories:--(1) habeas corpus, (2) declaratory judgment, (3) preliminary and permanent injunction, and (4) mandamus. The petitions for writs of habeas corpus were denied by the trial court on June 15, 1970, since by that date the appellants had in fact been charged with the crimes for which they were held on suspicion. On July 16, 1970, appellants moved for an order determining the appropriateness of the class which they sought to represent. On September 18, 1970, the trial court declared the action inappropriate as a class action and dismissed it. Plaintiffs appeal from that dismissal.

The appropriateness of the instant class action must be determined by reference to CR 23, which is an exact counter-part of Rule 23 of the Federal Rules of Civil Procedure. To be maintainable under CR 23(a), a class action must first meet certain prerequisites:

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.

The adequacy of the size of the class was not questioned by the trial court in its memorandum decision holding the action inappropriate on September 1, 1970; the constant expansion and contraction of the class renders joinder of all its members sufficiently difficult to comply with CR 23(a)(1). See Adderly v. Wainwright, 46 F.R.D. 97 (M.D.Fla.1968). Nor can there be any doubt that the claims and defenses of the representatives are typical of those of the class which they represent, as required by CR 23(a)(3). The ability of appellants fairly and adequately to represent the class and thereby meet the condition of CR 23(a)(4) may be subject to some doubt because appellants some time ago were charged with specific criminal offenses, and they are no longer being held in the city jails without charges against him. See Dale v. Hahn, 311 F.Supp. 1293 (S.D.N.Y.1970). But in view of (1) the absence of consideration of this issue by the trial court in its memorandum decision, (2) the fact that the police department can and probably will remove any individual's immediate interest in the outcome of such a case simply by charging him with a crime fairly promptly when actually faced with a lawsuit challenging the practice of holding persons 'on suspicion,' and (3) the obvious initial and continuing competence of the Seattle Public Defender's Office in its representation of appellants and the class which they represent, we can only conclude that the action of appellants will fairly and adequately protect the interests of their class, as required by CR 23(a)(4).

The crucial issue presented on this appeal is whether the class action prerequisite of CR 23(a)(2) is met. Are there questions of law or fact common to the class? The answer to this question is critical not only in determining whether the CR 23(a) prerequisites to a class action exist but also in deciding whether the class action is maintainable under CR 23(b), which sets out three preconditions for the maintenance of a class action, at least one of which must be met. For the instant class action, the applicable precondition is CR 23(b) (2), which provides that:

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

* * *

* * *

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunction relief or corresponding declaratory relief with respect to the class as a whole . . .

In effect, this section, as well as CR 23(a)(2), requires a finding that there are questions of law or fact common to the class. See 3B, J. Moore, Federal Practice § 23.06--1 (2d ed. 1969).

The trial court, in its memorandum decision of September 1, 1970, concluded that

since the facts and circumstances surrounding the detention of each member of the class which plaintiffs represent are different, and these differences are critical to the determination of whether constitutional rights were abridged, the test of CR 23 is not satisfied; there are no facts 'common to the members of the class (that) predominate over any questions affecting only individual members.' (CR 23(b)(3))

This conclusion appears to have been reached on the assumption that the proceedings before the trial court were in the nature of a habeas corpus class action. Reliance on this assumption precluded the court from considering whether the action met the requirements of CR 23(b)(2), supra, and precipitated the trial court's conclusion that the only possible justification for the action was to be found in CR 23(b)(3), which requires a finding that

questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

In addition to necessitating reliance on a section of CR 23(b) which is arguably more exacting in its requirements than CR 23(b)(2) (CR 23(b)(3) requires a finding that a class action is superior to other available forms of relief, a particularly difficult conclusion to reach in the case of a habeas corpus action), a class action habeas corpus proceeding, by virtue of the very nature of the relief sought, puts in issue the particular facts and circumstances of the detentions of the class members. A class action injunction proceeding, on the other hand, places in issue only the constitutionality of the presumably unvarying standards applied in holding members of the class 'on suspicion' of various charges without bringing them before a magistrate.

The trial court's characterization of this action as one seeking habeas corpus relief was erroneous. The petitions for writs of habeas corpus were denied on June 15, 1970; appellants' motion for an order determining the appropriateness of the class which they sought to represent was not made until July 16, 1970. While we do not decide whether this class action would be inappropriate if brought solely to obtain habeas corpus relief, we do conclude that as an action for injunctive and declaratory relief it is an appropriate class action and was incorrectly dismissed. The fundamental question presented is whether the police department should be restrained from holding members of the class an unreasonable or unnecessary amount of time without bail. Whether the reasonableness or necessity of a period of detention is determined with reference to the facts of each individual's case, or whether unvarying standards can be applied to all cases, as appellants suggest, the legal principles under which the reasonableness of a detention is determined are common to all members of the class. A class action is therefore appropriate, since there are issues of law common to all members of the class as required by CR 23(a)(2), and the respondent has 'acted or refused to act on grounds generally applicable to the class.' CR 23(b)(2).

A class action is not precluded by the possibility that individual issues may predominate once the general illegality of the questioned practice is determined. See Weiss v. Tenney Corp., 47 F.R.D. 283 (S.D.N.Y.1969). In Escalera v. New York City Housing Authority, 425 F.2d 853 (2nd Cir. 1970), the court held that where procedures used by the New York City Housing Authority in dealing with tenants were identical, there were common questions of law and fact that would support a class action, even though the facts leading to Housing Authority action in the case of each plaintiff were different. And it has been held on several occasions that Negro applicants for admission to schools attended by white students may bring a class action to obtain admission on behalf of all others similarly situated. Gantt v. Clemson Agricultural College of South Carolina, 320 F.2d 611 (4th Cir. 1963), cert. denied 375 U.S. 814, 84 S.Ct. 46, 11 L.Ed.2d 49 (1963); Norwalk CORE v. Norwalk Board of Education, 298 F.Supp. 210 (D.Conn.1968). The fact that some members of such a broadly defined class might not be entitled to enter the schools even in the absence of racial discrimination against them, or the possibility that some individuals held on suspicion of various crimes in the Seattle city jails might not be entitled to release under constitutional...