Muzquiz v. City of San Antonio, Civ. A. No. SA72CA271.

• Decision Date: 01 July 1974
• Docket Number: Civ. A. No. SA72CA271.
• Parties: MUZQUIZ et al. v. CITY OF SAN ANTONIO et al.
• Court: U.S. District Court — Western District of Texas

378 F. Supp. 949

MUZQUIZ et al. v. CITY OF SAN ANTONIO et al.

Civ. A. No. SA72CA271.

United States District Court, W. D. Texas, San Antonio Division.

July 1, 1974.

COPYRIGHT MATERIAL OMITTED

Kermitt L. Waters, Las Vegas, Nev., Cecil W. Bain, San Antonio, Tex., for plaintiffs.

Harvey L. Hardy, San Antonio, Tex., for defendant Firemen and Policemen's Pension Fund Bd. of Trustees, and Individual Member Trustees.

Crawford B. Reeder, City Atty., Edgar A. Pfeil, Asst. City Atty., City of San Antonio, San Antonio, Tex., for defendant City of San Antonio.

OPINION

CLARY, Senior District Judge.

This is a class action brought under 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1343(3) and (4) pursuant to 28 U.S.C. §§ 2201 and 2202 seeking an accounting, restitution, and injunctive and declaratory relief on behalf of former policemen and firemen of the City of San Antonio against the City of San Antonio and the Firemen and Policeman's Pension Fund Board of Trustees. The class represents those who have contributed to the Fire and Police Department Pension Fund and who subsequently left the employ of their respective departments and whose pension monies were not then refunded to them pursuant to Article 6243f, Section 19, Vernon's Texas Civil Statutes¹ which bars such refunds. The plaintiffs seek a declaration of the unconstitutionality of Article 6243f, Section 19 as a violation of Due Process and Equal Protection under the Fifth and Fourteenth Amendments, and the Supremacy Clause, Article VI, of the Constitution as well as constituting a Bill of Attainder and Inverse Condemnation. This matter is before the Court on a Rule 56 Motion by Defendants for Summary Judgment and a Cross-Motion by Plaintiffs for Partial Summary Judgment as to liability. A Hearing has been held and a Case Stated submitted by the parties.

I. JURISDICTION

Although the Defendants have conceded Jurisdiction² for the purposes of their Motion for Summary Judgment, the Court nevertheless believes the clear command of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) to compel us, sua sponte, to dismiss the City of San Antonio as a party. As the Court said in Kenosha, "`It is the duty of this Court to see to it that the jurisdiction of the district court, which is defined and limited by statute, is not exceeded.'" at 511, 93 S.Ct. at 2225 citing Louisville and Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). That component of jurisdiction which concerns us here goes to the question of equitable jurisdiction against municipal corporations under § 1983 as a possible exception to the holding of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961) with its bar to claims for damages against municipal corporations in a § 1983 action.

The Court in Kenosha held that:

"We find nothing in the legislative history discussed in Monroe, or in the language actually used by Congress, to suggest that the generic word `person' in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, `Congress did not undertake to bring municipal corporations within the ambit of' § 1983, 365 U.S., id. at 187 81 S.Ct. at 484, they are outside of its ambit for purposes of equitable relief as well as for damages." at 513 of 412 U.S., at 2226 of 93 S.Ct. (emphasis added).

In this regard, we have thus reconsidered our decision as to jurisdiction at the hearing which was based on Judge Seals' opinion in Walker v. City of Houston, 341 F.Supp. 1124 (S.D.Tex. (1972)³ rendered prior to Kenosha. What has been said as to § 1983 actions and municipal corporations would apply as well to actions under 42 U.S.C. § 1985, Monroe v. Pape, supra; Dodd v. Spokane County, 393 F.2d 330 (9th Cir. 1969); Mack v. Lewis, 298 F.Supp. 1351 (D.C.Ga.1969), and would hence also bar the instant claim under § 1985 as to the City of San Antonio.

Nevertheless, jurisdiction still obtains under §§ 1983 and 1985 as to the Pension Fund and its individual members, as it expressly is not a municipal entity under Texas law, as has been, in fact, acknowledged by the defendants in their Trial Brief at Page 6.⁴ Moreover, the relief sought in this case is predominantly equitable in nature⁵ and would thus seem to fall within the continuing sub silentio exceptions both to Monroe and its progeny Kenosha. See, e.g., Cleveland Board of Education v. LeFleur (1974), 414 U.S. 632, 94 S.Ct. 791, 39 L. Ed.2d 52; Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); see also Harkless v. Sweeney Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. den., 400 U. S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439; Antieu, Federal Civil Rights Acts (1971) § 37, supp. at 17, n. 20.

II. CLASS ACTION

For the purposes of Rule 23, we shall denominate the class in question as constituting all those living former policemen and firemen of the San Antonio Police and Fire Departments who left the employ of the police and fire departments respectively prior to becoming eligible for retirement benefits⁶ but who pursuant to the Article 6243f, Section 19 contributed monies which were not returned to them upon their departure. The plaintiffs have also sought as an article of relief in their Fourth Amended Class Action (Docket Entry No. 142) to act on behalf of the "widows and heirs or legal representatives of all deceased former members of the San Antonio Police and Fire Departments who were separated from the police or fire department prior to becoming eligible for retirement" and who while living were also denied a refund of their contributed pension monies. Since there are no representatives of said class among the named plaintiffs, the Court finds that the requirements of Rule 23 that "one or more members of a class may sue" are clearly not met, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), 7 Wright and Miller, Federal Practice and Procedure § 1761; nor, correspondingly, do we believe that the requirement of 23(a)(4) can be met that "the representative parties will fairly and adequately protect the interests of the class" since the named parties are not "representative" of the widows and children at all. Cf. Huff v. Cass, 485 F.2d 710 at 714 (5th Cir. 1973) and see Wright and Miller, supra at § 1798.

The defendants have nowhere contested the existence or propriety of the class of former policemen and firemen and as to them we hold that all the prerequisites to a class action under Rule 23(a) have been met: numerosity; common questions of law and fact; representative claims and defenses; and parties who will adequately represent the interest of the class.⁷ Moreover, owing to the equitable character of the relief sought, supra, with its emphasis on declaratory and injunctive relief, Advisory Committee's Note to Rule 23, 39 F. R.D. 98, 102,⁸ of a civil rights nature,⁹ 39 F.R.D. id.,¹⁰ 7A Wright and Miller supra, § 1775 at 24, § 1776 et seq., we believe the instant litigation to be most appropriately characterized under 23(b)(2).¹¹ There can be little question that the instant Pension Fund has "acted or refused to act on grounds generally applicable to the class" where a "common regulatory scheme" is involved, Almenares v. Wyman, 334 F.Supp. 512 (S. D.N.Y.1971), modified, 453 F.2d 1075 (2nd Cir.), cert. den., 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815; Ware v. Estes, 328 F.Supp. 657, aff'd per curiam, 458 F.2d 1360 (5th Cir.), cert. den., 409 U.S. 1027, 93 S.Ct. 463, 34 L.Ed.2d 321, such as the instant statute, and where the relief sought is both of a "final" injunctive nature, 7A Wright and Miller, supra § 1775 at 21, and of a "corresponding" declaratory nature which would settle the question of the legality of the above statutes as to the class.

Accordingly, as a Rule 23(b)(2) class action, the instant case does not fall within the ambit of Eisen v. Carlisle and Jacquelin et al., ___ U.S. ___, 94 S. Ct. 2140, 2152, 40 L.Ed.2d 732, with its notice requirement for 23(b)(3) actions.¹²

III. STATEMENT OF THE CASE

The nub of this case is the constitutionality of Article 6243f, Section 19 and the factual issues if any are purely ancillary to that determination and will be discussed infra where appropriate. In this regard, we concur with the opinion of our brothers of the Judicial Panel on Multidistrict Litigation who found "that the actions in this litigation involved predominantly, if not entirely, questions of law . . ."¹³ Moreover, while the defendants have brought the instant motion under Rule 56(b), the plaintiffs have themselves agreed as to the lack of dispute of any material fact and have submitted their own Cross Motion for Partial Summary Judgment as to Liability (Docket Entry No. 153) wherein they state that "there is no disputed material fact in issue."¹⁴ Nevertheless, the Court must make its own inquiry in this regard. Pioneer National Title Insurance Co. v. American Casualty Co., 459 F.2d 963 (5th Cir. 1972); 6 Moore's Federal Practice, ¶ 56.13 et seq.; 7A Wright and Miller, supra at § 2720 et seq.

Having made our inquiry we have determined only one possible area of dispute of a material nature,¹⁵ to wit, the underlying considerations, e. g., dangerousness and personal safety, which might justify the differing classifications of police and firemen as to the return of pension fund monies in differently-sized Texas cities,¹⁶ and in that aspect, we further determine that there is another rule of law that governs entirely so that the question need not be reached.

As to this question, we believe that we are faced with neither the abrogation of a fundamental constitutional right, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Baker v. Carr, 369 U.S. 186, 229-237, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), which would warrant the application of the Equal Protection ...