Stevens v. Board of Trustees of Police Pension Fund of City of Shreveport

• Decision Date: 24 February 1975
• Docket Number: No. 54988,54988
• Citation: 309 So.2d 144
• Parties: Terry K. STEVENS, Plaintiff-Appellant-Relator, v. The BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF SHREVEPORT et al., Defendants-Appellees-Respondents.
• Court: Louisiana Supreme Court

Page 144

309 So.2d 144

Terry K. STEVENS, Plaintiff-Appellant-Relator, v. The BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF SHREVEPORT et al., Defendants-Appellees-Respondents.

No. 54988.

Supreme Court of Louisiana.

Feb. 24, 1975.

Robert G. Pugh, Pugh & Nelson, Shreveport, for plaintiff-applicant.

John Gallagher, Roland J. Achee, W. Gene Carlton, Neil Dixon, Dixon, Thomas & Fleming, Shreveport, for defendants-respondents-appellees.

TATE, Justice.

The plaintiff, a former member of the Shreveport Police Department, brought this class action on his own behalf and on behalf of other former members of this department. The trial court sustained a peremptory exception, without evidence, dismissing this suit insofar as it was brought as a class action, La.C.Civ.P. art. 591. The court of appeal affirmed the dismissal of the class action. 295 So.2d 36 (La.App.2d Cir. 1974).

We granted certiorari, La., 299 So.2d 352 (1974), because of a conflict between the circuits in the application of the code articles providing for the availability of the class action. We also felt that the interpretation of the code articles, as enunciated by the court of appeal decision in this case, unduly restricted the availability of the class action, whether or not the result is correct.

Facts

The plaintiff institutes this suit individually and on behalf of all police officers of Shreveport who terminated their employment after the effective date of Act 641 of 1968 (La.R.S. 33:2351 et seq.). The legislation, which created a police pension fund for Shreveport, provides for compulsory contributions of 6% Of the salary of policemen while employed; but, although a policeman may not be entitled to benefits from the fund, his contributions are not refunded when his police employment is terminated.

Contending that the denial of refund of his compulsory contributions denies constitutional rights, the plaintiff prays for refund to him, and to all other police officers who have since 1968 terminated their employment, of the compulsory contributions exacted from them during their former employment as police officers. The plaintiff alleges that the class of police officers so designated includes approximately one hundred, that they are located in many different parts of Louisiana and in other states, and that thus they are so numerous as to make it impracticable for all of them to join or to be joined as parties. The petitioner notes that he himself had made compulsory contributions in excess of $1,300 and that the claims of the class are approximately one hundred thousand dollars.

Conflict Between The Circuits

As will be amplified later, Article 591 of the Louisiana Code of Civil Procedure provides that a class action may be instituted, under certain conditions, where the 'character of the right' at issue is 'common to all members of the class.' ¹

In holding that the right sought to be enforced by the plaintiff is not 'common' to others of his alleged class, the Second and Fourth Circuits have, as in the present case, held that the right is not 'common' when arising out of a similar action by or relationship of the defendant involving an identical issue of law, if in fact the claims are separate and distinct and the presence of all members of the class is not necessary for the enforcement of the common right. See: The instant decision of the Second Circuit, cited above; ² Caswell v. Reserve National Insurance Co., 234 So.2d 250 (La.App.4th Cir. 1970), certiorari denied, 256 La. 364, 236 So.2d 499 (1970); Veal v. Preferred Thrift & Loan of New Orleans, Inc., 234 So.2d 228 (La.App.4th Cir. 1970). The effect of this test is to make the class action unavailable except when the members of the class, too numerous to be joined, are indispensable or, at least, necessary parties.

Although the result may (or may not) have been correct under the facts of each particular case, the test adopted by these decisions negates the availability of the class action in all cases except where indispensable (or perhaps necessary) parties are too numerous to be joined. For reasons to be stated, in our view this stringent test was not intended by the legislature.

The test of the First Circuit, on the other hand, is less restrictive of the class action. Once the requirement has been met that the members of the class are too numerous for it to be practicable to join them, the test applied by that circuit is whether there is a 'community of interest' or a 'common interest,' despite monetary or incidental differences in the claims of the members of the class. Verdin v. Thomas, 191 So.2d 646, 651 (La.App.1st Cir. 1966). See also Bussie v. Long, 286 So.2d 689, 693 (La.App.1st Cir. 1973), as well as class action decisions (where this rule was applied, although not articulated) in Latino v. City of Bogalusa, 295 So.2d 560 (La.App.1st Cir. 1974) and White v. Board of Trustees of Teachers Retirement System, 276 So.2d 714 (La.App.1st Cir. 1973), certiorari denied 276 So.2d 694 (La.1973).

The test of 'common interest' or 'community of interest' thus applied is quite similar to that expressly authorized by code for permissive joinder of parties (cumulation of actions). The 'community of interest' upon which permissive joinder is based, La.C.Civ.P. art. 463(1), refers to the parties' causes of actions (or defenses) 'arising out of the same facts, or presenting the same factual and legal issues.' Official Revision Comment (c), Article 463. See also Gill v. City of Lakes Charles, 119 La. 17, 43 So. 879 (1907).

The result is correct in each of the cited First Circuit decisions allowing a class action. Further, the 'community of interest' or 'common interest' concept is certainly a factor in determining whether, other requirements for the class action having been met, 'the character of the right . . . is . . . Common to all members of the class', La.C.Civ.P. art. 591(1).

Nevertheless, the liberal community-of-interest requirement for permissive joinder of parties (Providing venue and jurisdiction requirements of the court are met, La.C.Civ.P. art 463(2)) are not historically nor functionally the basis of membership in a class for class-action purposes. (However, it reflects a policy-value in our code of civil procedure indicative of a code policy to avoid where possible a multiplicity of actions in the interests of judicial efficiency, providing it can be done without unfairness to the parties affected.)

The Class Action

The class action of our 1960 code of civil procedure, Articles 591--97, was adapted from a federal rule; however, the concept had earlier been jurisprudentially recognized in Executive Committee of French Opera Trades Ball v. Tarrant, 164 La. 83, 113 So. 774, 53 ALR 1233 (1927). See: Official Revision Comment, Article 591. The federal rule and the decisions upon which founded had themselves been derived from or founded on an ancient English equity practice. James, Civil Procedure, Section 10.18 (1965); 71 Har.L.Rev. 928--29 (1958).

As stated by James, Id. at p. 494: 'The class suit device was an attempt to solve practical problems stemming from other sources: The unwieldy number of parties who should be joined in some cases, with the concomitant likelihood that the membership of so large a group would keep changing (from death or otherwise) so that there would be recurring interruptions for abatement and revival of the action, and also the likelihood that one or more of the members would be beyond reach of the court's process. The device that evolved allowed suit to be brought by or against representatives of a class. And a decree in favor of or against the representatives bound all members of the class.' (Italics ours.)

Our essential inquiry here concerns ascertaining the functional reasons underlying the legislative intent, in providing a class action, as to why the unwieldly number of parties 'should be joined in some cases.'

The class action of our code of civil procedure, Articles 591--97, is adapted from Federal Rule of Civil Procedure 23 as originally promulgated in 1937. ³ Official Revision Comment (b), La.C.Civ.P. art. 591. Articles 591(1) ⁴ and 592 ⁵ are pertinent to our present query. They show that, in sanctioning class actions, the legislature has imposed the following requirements: (1) a class so numerous that joinder is impractical; (2) the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a 'common character' between the rights of the representatives of the class and the absent members of the class.

For purposes of these appellate proceedings, it is not disputed that the class action sought to be maintained here meets the first two requirements. For present purposes, the narrow issue for our determination is to determine the intent of the requirement of our code provision (the third above summarized) that 'the character of the right sought to be enforced . . . (must be) . . . Common to all members of the class . . ..'

The formula was patterned after the language which authorized the federal class action by the original version of Rule 23 of the Federal Rules of Civil Procedure. (See Footnote 3 above.) However, the word 'joint' in the federal rule 'was eliminated (from the Louisiana adaptation) since the phrase 'common to all members of the class' includes the Louisiana joint right or obligation.' Official Revision Comment (b), Article 591 of our Code.

The Louisiana joint obligation is a divisible and not a collective obligation, with each joint obligee entitled to recover only his proportional part of the obligation. Civil Code articles 2079--2080, 2086; Official Preliminary Statement to Title 3 ('Parties'), Chapter 1 ('Joinder'), Louisiana Code of Civil Procedure; McMahon, The Joinder of Parties in Louisiana, 19 La.L.Rev. 1, 10--11 (1958). Thus, that different recoveries are sought,...