Koolauloa Welfare Rights Group v. Chang, 8708
| Decision Date | 18 October 1982 |
| Docket Number | No. 8708,8708 |
| Citation | 65 Haw. 341,652 P.2d 185 |
| Parties | KOOLAULOA WELFARE RIGHTS GROUP, an unincorporated association of low-income persons in the State of Hawaii; Charles Perez and Violet Perez, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. Andrew CHANG, Director of the Department of Social Services and Housing, State of Hawaii; Edwin Tam, Administrator of the Department of Social Services and Housing, State of Hawaii; and Department of Social Services and Housing, State of Hawaii, Defendants-Appellees. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. There is no power in the court to enter a class certification order nunc pro tunc where the motion requesting the same is based on mistake, is filed more than a year after the entry of the judgment and the failure to enter a class certification order prior thereto is not a mere clerical error.
2. A class certification order under Rule 23(c)(1) should be made before a decision on the merits.
3. A notice of compromise of a class action should, at a minimum, describe the class, the relief sought in the complaint and the relief given by the compromise in order to bind unnamed members of the class.
4. There is no power in the court to authorize, as a result of the settlement of litigation between parties, the future issuance of rules and regulations contrary to the provisions of the Administrative Procedure Act, HRS Chapter 91. Ben H. Gaddis, Hilo (Calleen J. Ching and Brenton Rogozen, Honolulu, on the briefs, Legal Aid Society of Hawaii) for plaintiffs-appellants.
Robert K. Richardson, Deputy Atty. Gen., Honolulu, for defendants-appellees.
Before LUM, Acting C.J., NAKAMURA, PADGETT, HAYASHI, JJ., and CHANG, Circuit Judge, in place of RICHARDSON, C.J., disqualified.
This is an appeal from an order entered December 2, 1981 certifying a class of plaintiffs as of October 11, 1977. We reverse and order dismissal of the case.
The complaint was filed on March 29, 1976, alleging that the appellees had violated § 91-3, HRS, in failing to promulgate, as rules, internal communication forms used by them in determining eligibility for certain public assistance payments by the State of Hawaii. It alleged that the named plaintiffs were bringing the action on their own behalf and on behalf of a class of recipients of public assistance who were specifically described in the complaint. No determination of a class action was made by the court. On August 26, 1977, the parties filed a "Stipulation and Order Requiring Notice of Proposed Compromise Upon Consent Agreement." The consent agreement was filed August 30, 1977. It purported to provide for and allow, in futuro, the issuance of regulations by the appellees in certain circumstances even if those regulations were not in accordance with Chapter 91, HRS. It was to be operative from and after August 11, 1977.
On October 11, 1977, a judgment on the terms set forth in the consent agreement was entered.
On December 1, 1981, the appellees filed a motion for the nunc pro tunc certification, as of the date of judgment, of a class represented by the named plaintiffs, consisting of certain public assistance recipients in Hawaii. The class description in the motion adopted the description set forth in the complaint. On December 2, that motion was granted and the order appealed from was entered. On December 3, counsel for appellants moved for reconsideration of the order.
On December 9, the same counsel filed a motion for an order modifying the consent decree agreement which was heard on December 24, 1981. As a result thereof, on January 11, 1982, the court entered an order nullifying the consent decree agreement, holding the same, insofar as its future operation went, to be against public policy. On January 28, 1982, the court denied the motion for reconsideration of the nunc pro tunc certification order and this appeal followed.
Rule 23(c)(1), HRCP, provides:
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.
Rule 23(c)(3) provides in part:
The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class.
Rule 23(e) provides:
A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
The present appeal is apparently on behalf of the members of the class certified in the nunc pro tunc order other than the named plaintiffs. 1
The affidavits filed in support of the motion for the nunc pro tunc certification order clearly reflect that...
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