Valentino v. Howlett

Decision Date05 February 1976
Docket NumberNo. 75--1538,75--1538
Citation528 F.2d 975
PartiesJoseph C. VALENTINO, Plaintiff-Appellant, v. Michael J. HOWLETT, Secretary of State, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Joan Humphrey, James O. Latturner, Chicago, Ill., for plaintiff-appellant.

William J. Scott, Atty. Gen., Ann Sheldon, Asst. Atty. Gen., Chicago, Ill., for defendant-appellee.

Before CUMMINGS, ADAMS * and SPRECHER, Circuit Judges.


On December 3, 1971, while driving his own automobile, Joseph Valentino was involved in an accident with another car which resulted in damages to persons and property. Valentino carried no automobile insurance. On October 27, 1972, the Secretary of State of Illinois revoked Valentino's drivers license because Valentino was unable to post security and file proof of financial responsibility, as required by the applicable sections of the Illinois Motor Vehicle Code. 1 At the time of the accident, Valentino was employed by the American Indian Center as a school bus driver for its Head Start Program.

After his license had been suspended, Valentino sought a hearing to determine his eligibility for a restricted driver's permit. 2 The hearing was schedule for November 17, 1972, but when Valentino appeared he was informed that the Secretary of State does not issue restricted permits when a license has been suspended for failure of the operator to meet the financial responsibility requirements of the Illinois Code.

On November 21, 1972, Valentino filed suit, individually and on behalf of a class, alleging that the refusal of the Secretary of the State to issue a restricted permit to him while granting such restricted permits to persons whose licenses had been revoked for other violations of the Motor Vehicle Code, such as reckless driving or driving while intoxicated, was an arbitrary and invidious discrimination in violation of the Equal Protection Clause. Valentino requested a mandatory injunction to direct the Secretary of State to issue a permit to him, and, on behalf of the class, to require the Secretary to issue restricted driving permits to persons otherwise qualified except for the financial responsibility requirements.

Valentino filed an affidavit in support of his motion for a temporary restraining order, in which he alleged that he would lose his job if he did not get a restricted driving permit. He also stated in the affidavit that the accident in question was 'my first accident in 27 years of driving and I have never received a ticket for any other moving violation.' On November 28, 1972, the district court entered a temporary restraining order requiring that the permit be issued, but on December 7, 1972, the court dissolved the temporary restraining order and dismissed the case.

Valentino then filed motions to vacate the dismissal and to reinstate the temporary relief, to convene a three-judge court, and to determine the propriety of a class action. The Secretary of State filed objections to the motion to vacate the dismissal alleging that Valentino, contrary to what was stated in the affidavit, had been convicted of six moving violations in the past four years. On December 15, 1972, the district court reinstated the complaint but denied the motion for temporary relief, denied the motion to certify the matter as a class action, and denied the motion to convene a three-judge court.

Valentino then petitioned this Court for a writ of mandamus requiring that a three-judge court be convened and for an injunction allowing him a restricted driving permit pending appeal. This Court issued the writ requiring a three-judge court to be convened, and granted the injunction.

After remand, Valentino filed a motion for summary judgment, and the case was argued before the three-judge court on May 28, 1974. On October 27, 1974, Valentino's financial responsibility suspension expired and his drivers license was restored. The single district judge, in January, 1975, on his own motion, raised the issue of mootness and set a briefing schedule on that issue. In March, 1975 Valentino filed a motion to reconsider the order that had denied the class action. The single district court judge denied the motion to reconsider and on April 17, 1975 the three-judge court dismissed the case as moot.

Valentino has appealed from the order dismissing the case, contending that (1) this is a proper class action under Rule 23, and (2) the case is not moot.


The first question we must address is whether this Court has jurisdiction of an appeal from a three-judge court. 28 U.S.C. § 1253 states:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any (court) action, suit or proceeding required by an Act of Congress to be heard and determined by a district court of three judges.

In the past, for cases involving appeals from the grant or denial of an injunction by a three-judge court, the procedure was to appeal directly to the Supreme Court. However, in MTM, Inc. v. Baxley, 420 U.S. 799, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975), a three-judge court had dismissed the complaint without prejudice, because, it stated, federal intervention would have been improper in view of the pendency of the state proceedings. The Supreme Court declared, 420 U.S. at 804, 95 S.Ct. at 1281:

. . . (A) direct appeal will lie to this Court under § 1253 from the order of a three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests upon resolution of the merits of the constitutional claim presented below.

Here, of course, the three-judge court did not address the 'merits of the constitutional claim presented below' that plaintiff was denied equal protection, since the case had been dismissed because of mootness.

To the same effect is Gonzalez v. Automatic Employees' Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974). There the Supreme Court dismissed an appeal because the three-judge court had denied an injunction when it found that the plaintiff lacked standing. Gonzalez and three other plaintiffs had brought a class action in the district court attacking as unconstitutional various provisions of the commercial code and motor vehicle code governing repossession, retitling, and resale of automobiles purchased on an installment basis.

Consequently, we determine that this Court has jurisdiction of this appeal, and we now turn to the contentions raised by Valentino.


Valentino claims that his case meets all the requirements of Rule 23, and that therefore the district court erred in denying his motion for certification of a class action. In the complaint, Valentino defined the class as all persons in Illinois who, after an automobile accident, have had their drivers license suspended and who have grounds to apply for a restricted driving permit.

In the case at hand, the district court held that Valentino 'had failed to satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure.' It thus denied the plaintiff's motion for certification of a class. No reasons for the decision appear in the record.

A plaintiff has the burden of proving that a case is appropriately a class action and meets all the requirements of Rule 23. Rossin v. Southern Union Gas Company, 472 F.2d 707, 712 (10th Cir. 1973). Failure to meet any one of the requirements of Rule 23 precludes certification of a class. Rutledge v. Electric Hose & Rubber Company, 511 F.2d 668, 673 (9th Cir. 1975).

The Secretary of State maintains that Valentino has failed to meet the requirement of Rule 23(a)(1) that he prove the alleged class is so numerous that joinder would be impracticable, and that the district court thus acted properly in refusing to certify a class. The record here shows that the district court was not provided with any proof that the class was so numerous that joinder was impracticable. In the motion for the class action, Valentino stated only that the action was 'a proper class action on all issues as appears more fully from the allegations of the complaint.' But a conclusory allegation that a class is so numerous that joinder is impracticable is not sufficient to meet the requirements of Rule 23(a)(1). 3

Valentino takes the position that members of the class of uninsured motorists who are unable to comply with the financial responsibility laws after an accident and who have grounds on which to make application for a restricted permit would be comprised of persons who operate a motor vehicle in the course of employment. Such persons, he alleges, would include, by way of example, truck drivers, taxi drivers, delivery-personnel, chauffeurs, parking lot attendants, telephone and utility repairmen, and public transit drivers, as well as school bus drivers. Valentino claims that many of these jobs are low paying and would frequently be held by persons economically unable to meet the financial responsibility requirements of the Illinois Vehicle Code.

However, contrary to what Valentino may have alleged, such people, who do a great deal of employment-related driving are not necessarily low paid. Many of them are able to comply with the financial responsibility provisions by posting security. Valentino is a somewhat special case. He is a person with limited income and with nine children, who was placed in a school bus driver's job, earning a small salary at a non-profit center. Accordingly, the only class that, valentino could purport to represent would consist of low-paid persons who drive for a living, are uninsured, have had an accident in their private vehicle, and who then are unable to comply with the financial responsibility laws, resulting in the loss of their drivers license. This would be a very small class.

On March 3, 1975, Valentino filed a '...

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