DeFunis v. Odegaard

Hale, C.J.

(dissenting) — I would grant the motion to declare this to be a class action and to reinstate the judgment of the Superior Court.

In essence, the case now is and by its very nature always has been a class action, culminating in a judgment of this court which operates both in favor of and against identifiable classes of individuals who have been admitted to or who have sought or now are seeking but have been refused admission to the University of Washington Law School. It is a judgment directly in favor of those minority students coming within the classes described as Blacks, Chicanos, Indians (North and South American), and Filipinos; it runs directly against those students' coming within the classes described as Japanese, Chinese, Whites and all other national and racial groups of Oriental derivations such as Indo-Chinese, Malaysian and others who would seek admission under the law school’s minority preferential admission policy.

The common question indigenous to class actions continues to predominate in this case, and the cause inherently meets the basic ingredients of a class action because persisting “ ‘questions of law or fact common to members of the class predominate over any questions affecting only individual members.’ ” 3B J. Moore, Federal Practice ¶ 23.45 (2) (2d ed. 1974). It is thus by its very nature a class' action, and should be'adjudged to be ohe. If this court declares the obvious and attaches the appropriate label describing this to be a class action, much good will be readily accom *636 plished and much waste of time, money and talent averted. When this court grants the motion to declare this to be a class action, the case presumably will return to the Supreme Court of the United States for a definitive ruling on the issues — issues so sharply raised, profoundly briefed, vigorously argued and dearly waged.

The Supreme Court of the United States circumspectly granted certiorari, DeFunis v. Odegaard, 414 U.S. 1038 , 38 L. Ed. 2d 329 , 94 S. Ct. 538 (1973); it has never said its order for certiorari was mistakenly or improvidently granted. That court, in a divided opinion, remanded the case as moot, 416 U.S. 312 , 40 L. Ed. 2d 164 , 94 S. Ct. 1704 (1974), and amended its remand subsequently, 418 U.S. 903 , 41 L. Ed. 2d 1151 , 94 S. Ct. 3193 (1974). If the case is regarded as a class action, it is not and never has been moot. I think it incumbent upon this court to take every reasonable step available to avoid the waste of time, talent and money engendered by the present impasse; the simple judicial expedient of granting the motion should send the case swiftly on its way back to the Supreme Court of the United States for a definitive ruling.

This is a class action because it precisely meets the definition of a class action and on its face fulfills all of the requirements of a class action as defined in CR 23 (a):

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.

and because, as indicated, the opinion of this court operates as a class action judgment.

If this court assumes that the case was not a class action at the outset for want of a phrase in the complaint asserting it to be one, or is not inherently a class action, then it nevertheless may grant the motion and find it to be a class *637 action before final determination. As 3B J. Moore, Federal Practice ¶[ 23.02-2 (2d ed. 1974) states:

Just as a suit commenced as a class action may be stripped of its class features, an action or actions commenced as non-class in character may, in an appropriate case, be transformed into a class action.37

37Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc. (ND Ill 1968) 285 F Supp 714 , 11 FR Serv2d 23b.1, Casel (¶23.35 [1], [2] . . .

and adds:

And, we believe, that the court has the power ... to order that this be done.33

38See Richmond v. Irons, supra [ 121 U.S. 27, 51 , 30 L. Ed. 864 , 7 S. Ct. 788 (1887)] n 37.

The court now denies the motion to declare this to be a class action, partly because the plaintiff advisedly did not intend to foster a competition with other members of the class who might seek admission to and obtain the very seat he was seeking in the law school. Such a contention overlooks the obvious fact that Marco DeFunis took that very risk in bringing this suit. One of the defenses raised against DeFunis’ claim and rejected by the trial court was that, while he might conceivably prevail in having the governmental policies of admission to the law school declared unconstitutional, that ruling would not necessarily engender his own admission because other excluded students had higher admission credentials than he. DeFunis knowingly invited and ever since has assumed that hazard in initiating and trying his cause. His action necessarily included a demand for admission in conjunction with all others similarly circumstanced in addition to his challenge to the constitutionality of the law school admission policies.

Thus, the suit was maintained against the university and the law school for a decree wedging DeFunis into the entering class as but one of the many who had similarly sought admission, and to do so he necessarily had to lay his credentials alongside those of all others. But that was not the sole issue; he also maintained his suit to compel the *638 abrogation of cláimed unfair, unconstitutional and. discriminatory admission policies and to compel the institution of au aasertedly fair, nondiscriminatory and lawful admission policy. The court’s assessment of the true nature of the suit is, therefore, in error.

If the case has been mooted by DeFunis’ graduation, why, having been qualified to take the bar examination — or possibly having passed it — would he be here now. continuing to pursue his remedy? Obviously, the real remedy is sought on behalf of a class, ie., those students denied admission while others of lesser academic qualifications were given preference because of race and national origin, all of whom belonged to that class of law school applicants who sought admission during a relevant period prior to and after De-Funis was admitted. DeFunis’ admission, it must be remembered, was not based on his acceptance as a student by the law school hierarchy, nor on a change in admission policies to accommodate him, but solely by virtue of the decree of a court of competent jurisdiction.

The conclusion that Mr. DeFunis sought to avoid competing for admission among those who, although similarly rejected, had higher qualifications than he, is bound to be error and does not support the court’s rationale, for that is the very kind of competition which inheres in many class actions among the members of the class — reducing the individual recoveries by increasing the numbers who qualify for them. Mr. DeFunis, therefore, wages his suit on behalf of himself and on behalf of those rejected students who, according to their view of the matter, would have the court direct a law school admission policy conforming to the Fourteenth Amendment and to this state’s Const, art, 1, § 12, establishing equal protection of the laws, and to compel, according to their view, compliance with the statutes of this state creating, operating and regulating the university.

There is more to this case than the admission policies of a publicly-owned, -operated and -supported university. The court’s opinion sets a precedent affecting the administration *639 of State agencies, institutions, boards, cominissions, municipal corporations ■ and executive departments, and will impinge necessarily upon all of the officers' charged by law with operating and administering any of them. Thus, the court’s opinion, standing alone, establishes a precedent not only'for'-the operation of the university but inevitably establishes-principles applicable to all governmental agencies and institutions of the state which may contemplate adopting selective or preferential policies based on race, ancestry, national origin, or national derivation.

A decision of this court upholding as constitutional policies of preferment and selection based on race, national origin or derivation or ancestry in a state university must be given substantial application to all other institutions and agencies of the state. Unless the case is decided on its merits, the court’s opinion must be given precedential effect in all spheres of governmental activity.

When the Supreme Court of the United States, after assuming jurisdiction and hearing argument mooted the whole thing, it created boundless ramifications which can now be resolved one way or the other only by returning the case to that court. Questions pertaining to the equal protection of the laws and the special immunities and privileges provisions of the Fourteenth Amendment and the equal application of the laws provision of the State constitution, article 1, section 12, arising from the operation of the state, its subdivisions, institutions and agencies, when brought before the courts, must be now resolved in accordance with the precedent set by this opinion. Either the State government and its subordinate agencies, under the constitution, may now operate by giving preference on the basis of national origin or derivation, or race, or the court’s opinion will have to be overruled. By reason of our declaring this- to be a class action, the Supreme Court of the United States will presumably supply us with an answer.

DeFunis’ case never was mooted under the laws of the State of Washington. Twice he was rejected for admission *640 to the law school; twice he was refused permission to ■ attend classes. He was never accepted as a regularly enrolled student but allowed to attend classes and accumulate credits only by virtue of the decree of the Superior Court — a constitutional court of general and unlimited jurisdiction which, so to speak, applied the leverage of the constitutions as that court understood them, to compel the law school to provide a seat for DeFunis. When this court entered its judgment of reversal on March 8, 1973 (DeFunis v. Odegaard, 82 Wn.2d 11 , 507 P.2d 1169 (1973)), DeFunis had neither been graduated nor was he then assured of graduation. Nor, on April 23,1974, when the Supreme Court of the United States declared this case moot and vacated the judgment of this court had DeFunis graduated or been certain to do so. DeFunis v. Odegaard, 416 U.S. 312 , 40 L. Ed. 2d 164 , 94 S. Ct. 1704 (1974).

Mootness in this case can readily be tested by analogy to the civil rights statutes. In considering the proposition of mootness, both the Supreme Court of the United States, in its mandate of June 24, 1974, vacating the judgment of this court and the opinion of this court in the instant case apparently ignored a salient civil rights statute securing to DeFunis an apparent remedy in both state and federal courts:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42U.S.C. § 1983 (1970).

Can it be sensibly argued that any rights which DeFunis may claim under this act were mooted by his graduation?

Assuming arguendo that, because of overcrowding and to effect an affirmative action program giving members of minorities preference, DeFunis had been refused a civil *641 service job; or Ms rigM to attend a public high school; or to operate a motor vehicle upon the public highway; or even to teach in the public schools; or to do any of a number of other things requiring a certificate, license, permit or franchise issued by public authority, would his case in such instances be mooted merely by a decree wedging him into the sought position until the heat generated by his case had cooled? If such be the rule, then one loses all capability for enforcing his constitutional rights as a matter of principle and his success in attaining them in lite pendente transitu, so to speak, will be a temporary relief based on expediency and not on law.

One seeking to enforce a constitutional right against the government will under this court’s denial of the instant motion always be threatened with the defense of mootness. After years of litigation, the final adjudication in the courts may readily be mooted by the simple expedient undertaken by the involved governmental unit — even during appeal— to unilaterally grant the privilege, certificate, franchise, license, or right demanded, and thus avoid a judicial resolution of the plaintiff’s claims and those of all similarly situated.

Because DeFunis entered the law school by virtue of a decree of the Superior Court commanding his admission, and was continuing as a student under that decree, along with a stay of the judgment of this court reversing that decree entered by the Supreme Court of the United States pending review and disposition, we should, therefore, as I understand it, adhere to the principle that the case is not moot if the problem involved is “capable of repetition, yet evading review.” Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 , 55 L. Ed. 310 , 31 S. Ct. 279 (1911). Thus, the case is not and never has been moot under the law of this jurisdiction and DeFunis’ ultimate graduation did not resolve an issue capable of repetition, yet evading review.

As earlier noted, at the time the Supreme Court of the United States remanded tMs case to this court on April 23, *642 1974, DeFunis was continuing his studies as a member of the third-year class under the protection of a decree of the Superior Court which had ordered his admission to the law school. He had not been graduated and was not eligible to take the bar examination. His records at the time, at best, showed him to be enrolled because of the command of a court of competent jurisdiction, and at worst, at the sufferance of the law school administration. He was in school not because the law school admitted him as a qualified student but because a court had ordered his admission.

DeFunis’ position was quite similar to that of plaintiffs Shasta Hatter and Julie Johnston in Hatter v. Los Angeles City High School Dist., 452 F.2d 673 (9th Cir. 1971) , who had been reprimanded and threatened with expulsion from Venice High School in Los Angeles for distributing leaflets and otherwise urging the students to boycott the school’s chocolate drive. Plaintiffs there had brought suit alleging infringement of freedom of speech and sought an injunction expunging the records of the disciplinary action. Defendant school district claimed mootness because neither plaintiff was a student at the time of the review, ánd 'the dress code which plaintiffs had protested had been' repealed.

Despite the fact that neither party was a student at Venice High School at the time of the appeal and the dress code had been repealed, the Court of Appeals reversed the District Court on the question of mootness, saying, at page 674:

However, so long as disciplinary measures taken against Hatter and Johnston remain unexpunged from school records they threaten prejudice with respect to college admission and future employment.

Another case, however, and one perhaps even more persuasive in the instant case on the' issue of mootness is Moore v. Ogilvie, 394 U.S. 814 , 23 L. Ed. 2d 1 , 89 S. Ct. 1493 (1969), an election controversy which arose prior to an election but was heard ánd-decided on appeal after the election despite a motion to dismiss for mootness.-

*643 . In Moore , defendants were members of the Illinois Electoral Board with whom the appellants had filed nominating petitions containing the names of 26,500 qualified voters, supporting appellants’ nomination. The electoral board ruled that appellees could not be certified to the county clerk for' the November 1968 election because of a proviso in an Illinois statute requiring that at least 25,000 electors sign the nominating petition which must include “ ‘the signatures of 200 qualified voters from each of at least 50 counties.’ ” On October 8, 1968, appellants moved in the Supreme Court that hearing and disposition be advanced and expedited because of the shortness of time remaining, and on October 14, 1968, the motion to advance and expedite was denied. More than 4 months after the November 1968 election upon which a claim of mootness had been made, the court rejected the claim of mootness and decided the case on the merits, saying:

Appellees urged in a motion to dismiss that since the November 5, 1968, election has been held, there is no possibility of granting any relief to appellants and that the appeal should be dismissed. But, while the 1968 election is over, the burden which MacDougall v. Green, supra. [ 335 U.S. 281 , 93 L. Ed. 3 , 69 S. Ct. 1 (1948)], allowed to be placed on the nomination óf candidates for statewide offices remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935. The problem is therefore “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 [ 55 L. Ed. 310 , 31 S. Ct. 279 (1911)]. The need for its resolution thus reflects a continuing controversy in the federal-state area where our “one man, one vote” decisions have thrust. We turn then to the merits.

Moore v. Ogilvie, supra at 816 .

There are, in DeFunis, issues of national import which ought to be resolved by the highest court in the land. These issues extend far beyond the immediate problem of admission to state-supported colleges and universities, law schools, medical schools, nursing schools and all other schools offering specialized training in the arts, sciences *644 and professions upon a limited and selective basis. They are issues running to the very center of all operations of state government whose subordinate agencies have the power to grant or deny a privilege, or exercise a power, or whose actions may abridge the exercise of a constitutional right.

In the instant case, the University of Washington and its law school is the only tax-supported institution of higher learning in this state offering complete professional training in the law; it is a wholly-owned and operated agency of the State of Washington charged with carrying out that purpose. I think it must be held to the same standards of fairness and equality as any other agency of the State having the powers and duty to grant valuable privileges or to uphold constitutional rights. The issues so vigorously argued here persist and will continue to persist despite DeFunis’ graduation from the law school or his admission to the bar. He has a right to know whether, in pursuing his studies and his rights simultaneously, he jeopardized loss of one at the attainment of the other, or whether abandonment of the one assured in law achievement of the other. His claim was not peculiar only to himself, but rather one common to all other student applicants similarly entitled to a definite decision on the merits of his and their denial of admission under then applied governmental policies. He and all others so situated had a right to know whether and to what extent and for whatever purposes the government, its agencies and institutions may use race, national origin, nationality or religion as a basis for selection or preference.

All that needs be done to definitively resolve this issue is for this court to declare the obvious and grant DeFunis’ motion to declare this to be a class action. That I would do.

Hunter, J., concurs with Hale, C.J.