# Petition for Writ of Certiorari — Zrnchik v. Amoco Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1125%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 1049 ## Text a Supreme Guert, US FILED No.9 98 TS4 OCT 280% De te ak IN THE Supreme Court of the Whited States October Term, 1998 Dorthea and Joseph Zrnchik, et al., Petitioners, We Amoco Oi! Company, Respondent On Petition for a Writ of Certioran To the Supreme Court of Indiana PETITION FOR WRIT OF CERTIORARI Edward McGlynn Gaffney, Jr.* William F. Satterlee III Valparaiso University School Larry G. Evans of Law Jack A. Kramer Valparaiso, IN 46383 Hoeppner, Wagner& Evans 219-465-7860 103 East Lincolnway * Counsel of Record Valparaiso, IN 46384 219-464-496 | Patrick J. McNanama P.O. Box 374 Crown Point, IN 46307 219-756-2110 , ‘VU Questions Presented Whether the certification of a mandatory state class action pursuant to Rule 23(B)(1) of the Indiana Trial Rules, without any notice to parties litigating the same issues in federal court, with- out any meaningful hearing in which these federal plaintiffs could object to the class certification, and without a right to opt out of a class wholly for monetary damages, violates the Due Process Clause of the Fourteenth Amendment. Whether a State trial rule allowing an automatic change of venue violates the Equal Protection Clause of the Fourteenth Amendment, where the rule permits wholesale exclusion of members of racial minorities from sitting on juries called to de- liberate about environmental damage occurring within communi- ties in which they predominate, and where no race-neutral reason for the request was required at the time the change of venue was ordered. iit ii List of Parties The parties to this proceeding are: Petitioners: Dorthea and Joseph Zrnchik, Diana and Ed- ward Abrego, Anastasha Abrego, Edward Abrego, Jr., Gilbert Abrego, Magda Abrego, Melchor Abrego, Lucilia and Francisco Aguilera, David Aquilera, David C. Aquilera, Jr., Veronica Aquilera, Brian Arteaga, Blanca Banegas, Kelly Benegas, Mi- chael Banegas, Eileen and Peter Beda, Michael Beda, Michelle Beda, Lucille and James Braun, Lorene and Harold Burgan, Stella and Joseph Cook, Brittney Cornelius, Jennifer Cornelius, Dorothy and Carl Davis, Marlene and Raymond Gajewski, Mat- thew Gajewski, Magda and Pascual Garcia Jr., Aisha Garcia, Deborah and William Harris, Patricia and Paul Heidenthal, Mar- than and Ronald Hric, Alisha Hric, Kelly Hric, Oliver Hric, Pauline and Charles Johnson, Lillian Kacak, Diana and Joe Kei- thly, Margaret Kreevich, Judith and Francis Kubeck, Keith Ku- beck, Donna Kusbel, Katherine Kusbel, Janet and Rigorberto Lemus, Nicole Lemus, Michele and Emest Livingston, David Livingston, Michael Livingston, June and Donald Long, Kather- ine and Anton Maleckar, Barbara Maleckar, Mildred Maleckar, Spring Maleckar, Paula Maloney, Brian Maloney, Kerry Ma- loney, Paul Maloney, Beth and Albert Minniti, Leta Minniti, Jac- quelyn and John Moore, Daniel del Muro, Elvira del Muro, Juanita del Muro, Luis del Muro, Rolando del Muro, Jennifer and Eric Perez, Catherine Petrak, Martha and Francisco Ponce, David A. Ponce, Francisco Ponce III, Marina and Adrian Rangel, Karen and Phil Rapchak, Charlene and James Simko, Kyle Simko, Elvia and John Slivka, Mary Solcich, Martin Soto, Margie Soto, Vicki Soto, Brian Staley, Christian Staley, Glen Staley, Jr., Elizabeth and Richard Taylor, Janet and George Taylor, Ruby and Cash Tunstall, Marion Wilkening, John Wilkening, Patricia Wilkening, Austin Yale, Wilma and Jerry Young, Carl Young, Kasey Young, Kim Young, Benjamin Zrnchik, Lisa Zrnchik, Stephanie Zmchik, and William Zrnchick. Respondent: Amoco Oil Company, a Maryland corporation with its principal place of business in Chicago, Illinois. Summary of Key Procedural Facts ............--+---+-:ss-ssssssssssee Detailed Chronology of Key Procedural Facts ........--------- Reasons for Granting the WTit ............-.---s-sssesssessesrenenenennneees 1. The Decision Below Departs from this Court's Teaching about Due Process Rights to Adequate Notice, to a Fair and Full Hearing, and to Opt Out of a Mandatory Class Action Wholly for Money Judgments.” The Decision Below Is in Direct Conflict with Decisions of Federal Courts of Ap- POONS ..ascnecocsconssnnsensssonsesnsesnsssnsesnvernrssnecnnssnnssnscsansquncsnecnacensssess 2. The Court Has Expressed a Continuing Interest in the Issue of a Due Process Right to Opt Out of Class Actions. ..... 3. This Case does not Suffer from the Defects that Led the Court to Dismiss the Writ in Ticor and in Adam...........---..+++- 4. Amoco Offered No Race-Neutral Reason for its Re- quested Change of Venue at the Time it was Ordered. The Court Should Invalidate Automatic Change of Venue Rules that Exclude Members of Racial Minorities from Juries Deliberating about Environmental Damage Occurring. in Communities in which They Predomimate. ...........-.-.--+---s-0- Conclusion 23 28 EE iv : Table of Authorities Page(s) Cases cited: Adams v. Robertson and Liberty National Life ee EES. 2: RE ER 8 A 18-20 Adarand Constructors, Inc. v. Pena, Se oa i aldasnethilpdniabahiipenncitanconchiutit 26 Amchem Products, Inc., et al. v. George Windsor, OO SE Pe PO LOD I icra csiccdickcessdhccsasvicvesecestebginnssinn 14 Bankers Life & Casualty Co. v. Crenshaw, nO clean caesecendeediaitacierenaninspnscancctaenences 20 Bousley v. United States, 118 S.Ct. 1604 (1988).................. 21 Rowling v. Pfizer, Inc., 143 F.R.D. 141 eg, RS ICSE STR id IAAP A Bie ee ROE AT 14 Braun v. Amoco Oil Company, Civ. No. H91-360 CE Sa Is I iia niet enanternenntensabnsnnctesanronnie 7 Brown v. Ticor Title Ins. Co., 982 F. 2d 386 (9th Cir. 1992), cert. granted, 510 U.S. 810 (1993), cert. dismissed, 511 U.S. 117 (1994) .00.....ccccceccceceseees 18-19 City of Independence v. Amoco Oil Co., Civ. No. 95-0019-CV-W-2 (W.D. Mo., July 30, 1998) 0.0... 13 County of Suffolk v. Long Island Lighting Co.., SOT FF A AR nite thdtinteliiecinsstocinnprestingsins 9 Crawford-El y. Button, 118 S.Ct. 1584 (1998).........0000000..... 21 Davis v. Wechsler, 263 U.S. 22 (1923) ..........cccccesscesseeseeeees 23 Edmonson v. Leesville Concrete Co., 500 U.S. 614 CN iirviciiccsitciistnintyincinnsiniittipaii peat he sais allteemsenis 23-24 Healy v. Beer Institute, 491 U.S. 324 (1989) ......... Skee 22 Illinois v. Gates, 462 U.S. 213 (1983).............c.cccccccceeeseeeeees 19 In re Bendectin Products Liability Litigation, Fs Bae I icant tilavicsicecscsensceecticccscees 17 In re N. Dist. of Cal., Dalkon Shield IUD Products Liability Litigation, 693 F. 2d 847 (9th Cir. 1982) .............. 17 In re Temple, 851 F. 2d 1269 (1 1th Cir. 1988)..................... 17 Martin et al. v. Amoco Oil Company, 679 N.E. 2d 139 (Ind. App. 1997).......-s:ccsccssssessessnseneessennsnnsensensennsnnscnnsnssss 1 Martin et al. v. Amoco Oil Company, 696 N.E. 2d 383 (Ind. 1998).........:ssessescnesssssnssnsensensennecnssnnsnssnscnnennncansensssess 1 Mathews v. Eldrige, 424 U.S. 319 (1976)... 15-16 Moore v. Ogilvie, 394 U.S. 814 (1969) .......sscsesesceseeeeeseeesees 19 Moore & Richardson v. Kocur, Cause No. 45D05- 9101-CT-260 (Lake Co. Sup. Ct., Sept. 18, IPED sksiséieciancce 24 Morrison v. State, 542 N.E. 2d 564 (Ind.. 1989) ..........0++ 6,21 Morales v. TWA, 504 U.S. 374 (1992) .....-s::esscseseresessessescees 22 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).........cecccesessesesseseeseesenenenenensesnenenanenenseees 15 Mu'mim v. Virginia, 500 U.S. 415 (1991) ......--.---000 26-27 New York v. New Jersey, 118 S.Ct. 1726 (1998)......-..-.--1+-+ 21 Osmulski v. Becze, 638 N.E. 2d 828 (Ind.Ct. App. 1994) ......24 Phillips Petroleum Company v. Shutts, 472 U.S. 797 (19B5)......ccscscssseseesssseseeesnenseesneseeeneasesssestecs 9-11,15-19,21,22 Robertson vy. National Basketball Assn., 556 F. 2d 682 (2d Cir. 1977)......--.sesccesesereenesereessesssssenenenene 17 State v. Smith, 170 N.E. 2d 423 (Ind. 1960) ........-.-.--seesess000 4 State ex rel. Rabel v. Jasper Superior Court, 467 NE. 2d 693 (Ind. 1984)..........-ccccssceseeseseesencnstsssstesneneenees 6 State ex rel. York v. Newton Circuit Court, 531 NE. 2d 198 (Ind. 1988)............-.ceececcecesseeeseneresetssnenennenes 6 Stone v. LN.S., 514 U.S. 386 (1995)........-:sceseseeesereereteesenees 22 Taylor v. State, 507 N.E. 2d 978 (Ind. 1987)..........::sscseecreee 4 Thomas v. State, 656 N.E. 2d 819 (Ind. 1995) .....-.--.-.--+ 6,21 Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) .0.....eceseccersecessensessensensnenenenensenenenens 18,19 Village of Arlington Heights v. Met. Housing Dev. Corp., 429 U.S. 252 (1977)...------ssseseessseeeensntennsnnsense 24 Walb v. Esheiman, 94 N.E. 566 (Ind. 1911).....---.--.---seeeeeeeees 6 Webb v. Webb, 451 U.S. 493 (1981) .......----eeeeerereeseeseeereees 20 Yick Wo v. Hopkins, 118 U.S. 356 (1886)..........--.-- enor 24 Statutes cited: EB ET occccncsnscgccticsassies Fie mn te Res tam | Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. o.oo... ccc cecceeeseees 6 Federal Rules cited: Peete DF I Oiccccis kaha itelcitheini istics deisccthittbents 7 PUNE eta I AIG I cincacen sanesoconnnaieniaitbtienihtdbssatenbenactiivlentbih 7 A ee nee eM se | 2,5,17 Pee ie Es In PID i iaicisn ichcictcrctaestncenpcttlimeenancenins 13 ok CR a ae a eee 2 Indiana Rules cited: bs ANE WT AEN: ee eh n E 2-6 Be EP iesececnaceeesntilbipsdhaasiinaibiietedbstiemtemccabaeins 9 Pg, Sea S Hee Debs Bae RSW is IF 25 iicietieniiiiiiictdiatiactih tindaassnheshielinthinbioa 2,4,12,23-24 ee Fei aii icttiiiichetiiiltaintniiitbig ses 2,4-7,12,21 Aapie Bake BB an scteiniinte ek kB nti is: 14 Miscellaneous authorities: Vicki Been, Environmental Justice and Equities, vii Chap. 25 in Patrick Rohan, ed., ZONING AND LAND USE CONTROLS (1995) .....ceccco+-ovesesessssserveesseessneeennsee 25 John Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343 (1995)..........-. 17 Howard Downs, Federal Class Actions: Diminished Protection for the Class and the Case for Reform, 73 NEB. L. REV. 646 (1994)............ccccccccessseeeseneeeeserecnneeeeeees 14 Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 CAL. L. REV. 775 (1998)............-0ccec-scesseeneeseensenseesenseneenes 25 Jack Friedenthal, Mary Kay Kane, and Arthur R. Miller, CIVIL PROCEDURE (2d ed. 1993)............-:ceccesseeseeeeneeeennnenees 17 Michael Gerrard, WHOSE BACKYARD, WHOSE RISK? FEAR AND FAIRNESS IN TOXIC AND NUCLEAR WASTE SITING (1994)..00.....0..cccccccceescenerennrennensecenneneesansnenenernnnasnnsenes 25 Michael Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495 (1994).............scccecceseeecoeeeeeeeee 25 Susan Konaik, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 CORNELL L. REV. 1045 (1995)...........------ccccseeseeceeeneeeees 14 Linda S. Mullenix, Getting to Shutts, 46 U. KAN. L. REV. 727 (1998) .........----:-esesscensneneenereensnenes 19 National Research Council, UNDERSTANDING RISK: INFORMING DECISIONS IN A DEMOCRATIC SOCIETY (1996) 25 Judith Resnik, Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. DAVIS L. REV. 835 (1997) ..........----c.-ccscceeeeeeeeeeeenees 14 Stephen J. Safranek, Do Class Action Plaintiffs Lose Their Constitutional Rights?, 1996 WIS. L. REV. 263 ....19,26 viii Index of Appendices Appendix A: Chronology of Principal Events ..................... la-6a Appendix B: Opinion of Supreme Court of Indiana .......... 7a-lla Appendix C: Opinion of Court of Appeals of Indiana ..... 12a-30a Appendix D: Order of Newton Circuit Court Certifying a Property Class Under Indiana Rule 23(B)1) and Notice of Class Action, 1/23/92 .0........00.cccccccceceesseeceesseeeeee 3la-35a Appendix E: Pre-Trial Orders, Newton Circuit Ct, 4-26-93.......... pe SE EE Ron on Oe eR Re Bere, Rael 36a-38a Appendix F: Order of Newton Circuit Court Denying Mo- tion to Vacate Mandatory Class Certification Order or to Set a Hearing to Reconsider whether Martin Should Continue as a Mandatory Class or an Opt Out Class, BREE DEES WO eM RE es ON 39a Appendix G: Final Judgment Order and Judgment on the Verdict, Newton Circuit Court, 12/14/93 ................ 40a-41la Appendix H: Order of Newton Circuit Court on Intervenors' Motion to Correct Errors, 8/1/94 200........cccccccscsseescesseseeeee 42a Appendix I: Order of Newton Circuit Court on Class Plain- tiffs’ Motion to Correct Errors, 8/1/94 .0000000.000...0..... 43a-44a Appendix J: Indiana Trial Rule 23. Class Actions .......... 45a-47a Appendix K: Indiana Trial Rule 75. Venue Requirements ..... 48a Appendix L: Indiana Trial Rule 76. Change of Venue ........... 49a Appendix M: Indiana Trial Rule 79. Special Judges ....... 50a-Sla Appendix N: Indiana Appellate Rule 11(B)(3)I .................... 52a Appendix O: Population by Race: Lake & Newton County.... 53a Appendix P: Letter of Frank J. Citek, Manager Amoco Oil Refinery, to Residents of Whiting, 1/23/91 ............. 54a-56a Appendix Q: "Massive Underground Oil Spill Slowly Spreads from Whiting,” Hammond Times 1/24/91 .. 57a-61a Appendix R: News Release of Amoco Oil Co., 6/17/92 . 62a-64a Appendix S: Table of Contents, Brief for Intervenors in the Court of Appeals of Indiama ...0........0.......cceccceceseeeees 65a-66a Appendix T: Table of Contents, Brief for Intervenors in the Supreme Court of Indiiama 2..0..0...0.0.....ccesceeeseeesceseseeseess 67a Appendix U: Excerpt, Transcript of Fairness Hearing, City of Independence v. Amoco Oil Co., 7/30/98 ........... 68a-69a 1 Petition for a Writ of Certiorari Petitioners Dorthea and Joseph Zmchik, ef al. (referred to as “federal plaintiffs” or “objectors to mandatory class in state court”) respectfully petition for a writ of certiorari to review the constitutionality of the judgment of the Supreme Court of Indiana in this case. Opinions Below The opinion of the Supreme Court of Indiana is reported under the name Martin et al. v. Amoco Oil Company at 696 N.E. 2d 383 (Ind. 1998). App. 7a-lla. The opinion of the Court of Appeals of Indiana is reported under the name Martin et al. v. Amoco Oil Company at 679 N.E. 2d 139 (Ind. App. 1997). App. 12a-30a. Jurisdiction The decision of the Supreme Court of Indiana was rendered on June 29, 1998. A timely application was presented to Justice Stevens, as Circuit Justice for the United States Court of Appeals for the Seventh Circuit, for an extension of time, up to October 28, 1998, within which to file this petition. On September 18, 1998, Justice Stevens granted the application. The jurisdiction of this Court is invoked under 28 U.S.C. §1257(3). Constitutional Provisions Involved The Fourteenth Amendment to the United States Constitu- tion provides in relevant part: “... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Statement of the Case As the Supreme Court of Indiana noted succinctly, “These claims originated from a notice from Amoco to the residents [of Whiting, Indiana] which warned of the possibility of under- ground oil migration onto their properties.” App. 7a-8a. In a letter dated January 23, 1991, the manager of Amoco’s Whiting refin- ery wrote to Dorthea and Joseph Zmchik and hundreds of other residents of Whiting: “Amoco Oil Company has reason to believe that petroleum products beneath its Whiting refinery have moved beyond its property underground.... Amoco is committed to 2 working with state and local officials to determine the extent of the petroleum underground and developing and implementing a comprehensive plan to remediate the affected area. We also are committed to working to prevent future leaks or spills.” App. 54a. The oil company acknowledged that 16.8 million gallons of oil (nearly double the amount of oil involved in the Exxon Val- dez spill) had spilled or leaked from the containers at the refin- ery, and pledged remediation of the contamination. ' Summary of Key Procedural Facts This case began with an admission by the oil company that -- like Tom Hanks in “Apollo 13” — it had “a problem.” Litiga- tion ensued. Because the procedural facts of the case are compli- cated, we set them forth in greater detail below and in a chart (Appendix A). App. la-6a. The essential facts of the case relating to the questions presented can be boiled down to five basic themes. 1. A week after the oil company’s admission of the spill, on February 1, 1991, two households sued the oil company in an opt-out class action for compensatory damages in state court un- der Indiana Trial Rule [hereafter T.R.] 23(B)(3), App. 45a-47a, which reads the same as the Rule 23, F.R.Civ. P. 2. On April 24, 1991, the oil company sought to move the state case out of the urban environment in which the oil spill oc- curred, the population of which is appro~imately 25% African- American, to a rural county with a population of African- Americans less numerous than .1%. Under the form of T.R. 76 governing this case, the oil company offered no reason whatever for its requested change of venue at the time it was ordered, since such motions were then granted automatically. 3. On June 10, 1991, Hon. Marvin McLaughlin was ap- pointed as special judge in the case, but failed to qualify within the jurisdictional period stated in T.R. 79(5). Nevertheless he took jurisdiction of the case and continued to exercise it. 4. On October 10, 1991, 43 individuals jointly filed an ac- tion in federal court under Rule 20, F. R. Civ. P., seeking com- pensatory damages from the oil company, and joined with it a class action, limited to the issue of punitive damages. On January 7, 1992, the federal plaintiffs clarified that the class action aspect ' See “Massive Underground Oil Spill Slowly Spreads from Whit- ing,” Hammond Times, Jan. 24, 1991. App. 57a-61la. See Rule 902(6), F.R. Evid. 3 of the lawsuit would be a Rule 23(b)(3) opt-out class. With one exception (Henry Cornelius) noted below, federal plaintiffs are the petitioners here. 5. On January 23, 1992, the attorney for the oil company and the attorney for the state plaintiffs moved to switch the state class action from an opt-out to a mandatory class under Ind. T.R. 23(B\(1), representing to the court that their motion was “unop- posed.” Judge McLaughlin, despite his evident lack of jurisdic- tion under state law, immediately granted this motion, entering an order certifying a mandatory class. Once that decision was reached, all attempts by the federal plaintiffs to opt out of the state action were rebuffed by the Indiana courts. The motions of the oil company and the state plaintiffs for a mandatory class were “unopposed” by the federal plaintiffs on that day for the simple reason that they had no notice of the hearing. If petitioners had received adequate notice, they could have raised several meritorious objections, including: (a) the con- stitutional violation implicated in the automatic change of venue, (b) the constitutional nght to opt out of a class wholly or pre- dominantly for a money judgment, (c) the lack of jurisdiction of the trial judge, and (d) the impropriety of certifying a mandatory class under T.R. 23 (B)(1) on at least two grounds. First, in a case predominantly for damages there is no risk of inconsistent obli- gations (paying plamtiff A is consistent with paying plaintiff B, if both have suffered injury caused by the defendant). Second, this is not a “limited fund” case (there was no risk of bankrupting the oil company, which had posted profits of $1.6 billion in that fis- cal year). The reason why it is certain on this record that the federal plaintiffs could have said these things at the crucial certification hearing from which they were wrongfully excluded is that they tried to say these things, over and over again, only to be rejected at every turn by the Indiana state courts, from the trial court to the appellate tribunals. The facts recited above are detailed.in the chronology that follows and in the chart provided in Appendix A. App. la-6a. But the Court may return to the five points sketched above to focus on the procedures essential to an understanding of the two questions presented here. We refer to petitioners as fed- eral plaintiffs, as objectors to mandatory participation in the state class action, or, in the state appeal, as intervenors. Detailed Chronology of Key Procedural Facts On February 1, 1991, three named litigants -- Robert 4 O’Drobinak, Eugene Burkat, Jr., and Wanda Burkat - filed a state class action complaint in the Superior Court for Lake County, Indiana. These two households sought “entry of an Order as soon as practicable after hearing, pursuant to Rule 23, certi- fying that this action may be maintained as a class action by the representative plaintiffs.... [and] directing to the members of the Class the best notice practicable under the circumstances advising them of their option to be excluded from the class and the binding nature of any judgment if not excluded” (emphasis added). The prayer for relief sought compensatory damages and an order pre- venting Amoco from destroying evidence relevant to the oil spill. It also sought unspecified injunctive relief, a prayer that was sub- sequently abandoned. Thus the case is “predominantly for money judgments.” On April 1, 1991, the state plaintiffs filed an amended complaint, adding two named representatives, James Martin and Mary Roman, to the state class, and preserving the right of class members to opt out of the state class action if they chose to do so. On April 24, 1991, Amoco filed a motion for change of venue from Lake County. At that time it did not allege any reason whatever for its motion. For example, it offered no evidence of adverse publicity so poisoning the atmosphere that no panel of unbiased jurors could be relied upon to render a fair verdict in the county where the events took place. Amoco did not have to offer any reason for its request because under the form of Ind. T.R. 76 existing at the time, a request for change of venue was granted automatically. The state case was transferred from Lake County (the place where the oil spill occurred, the population of which is approximately 25% African-American) to Newton County (a ru- 11 county with a population of African-Americans less numerous than .1%). App. 21a; see also Appendix O (indicating population of Lake and Newton Counties by race), App. 53a. On June 10, 1991, the Hon. Marvin McLaughlin was ap- pointed special judge. Judge McLaughlin immediately assumed control of the case, but did not file an appearance and qualifica- tion as special judge. App. 13a-14a. Under Ind. T.R. 79(5), the failure of a special judge to appear and qualify within twenty days of the appointment “shall revoke the appointment.” App. 51a. Under Indiana law the defect is jurisdictional. 7Zaylor v. State, 507 N.E. 2d 978 (Ind. 1987), State v. Smith, 170 N.E. 2d 423 (Ind. 1960). On October 10, 1991, 43 individual plaintiffs effectively opted out of the state class action by filing a complaint in the 5 U.S. District Court for the Northern District of Indiana [hereafter, district court], seeking compensatory damages related to the inju- ries sustained by the named plaintiffs, all of whom were joined under Rule 20, F. R. Civ. P. These federal plaintiffs (objectors in state court and petitioners here) also sought certification as repre- sentative parties to bring a class action solely with respect to pu- nitive damages. The federal complaint sought “an Order as soon as practicable afier hearing, pursuant to [F. R. Civ. P.] Rule 23(b)(1), certifying this action for punitive damages as a manda- tory class action.” In the alternative, the federal plaintiffs sought “an Order as soon as practicable afier hearing, pursuant to Rule 23(b)[3], certifying this action for punitive damages as a class action and directing to the class members adequate notice advis- ing them of their option to be excluded from the class and the binding nature of any judgment if not so excluded.” (emphasis added). The case was assigned to the Hon. James T. Moody. On January 7, 1992, the federal plaintiffs moved for deter- mination of the maintenance of a class action -- limited to puni- tive damages -- as a Rule 23(b)(3) opt-out class. On January 23, 1992, the four state plaintiffs (James Mar- tin, Mary Roman, Eugene Burkat, Jr., and Wanda Burkat) and Amoco both filed motions in state court to certify the class as a mandatory class under Ind. T.R. 23(B)(1). Counsel for the state plaintiffs switched from a 23(B)\(3) opt-out class to a 23(B)(1) mandatory class at the suggestion of counsel for the oil company. On the same day the motions were filed, with no notice to the federal plaintiffs or opportunity to be heard, Judge McLaughlin conducted a telephone conference’ with the lawyers for the state plaintiffs and for Amoco, and immediately entered an order -- conveniently prepared by the oil company -- certifying the class as a T.R. 23(B)(1) mandatory class. App. 14a, 31a-35a. The oil company also prepared a Notice of Class Action accompanying 2 In the informal telephone conference both the counsel for the state plaintiffs and the counsel for Amoco represented to Judge McLaughlin that their motions were “unopposed.” The reliability of this statement turns on whether the due process clause requires pre-certification notice to potential objectors. The federal plaintiffs had no notice that the mo- tions were filed, and hence had no opportunity to be heard in the crucial “hearing” at which the motions were acted upon, the same day they were filed. The federal plaintiffs could not have anticipated this deci- sion to deny them an opportunity to be excluded from the state class action, since the pleadings of the state plaintiffs up to that moment had sought an opt-out class. this order, App. 33a-35a, and promptly hand delivered this notice of a fait accompli to the residents of Whiting living adjacent to the refinery. On January 28, 1992, Amoco then went into the district court to seek from Judge Moody a stay of the federal proceedings on the ground that the state court had “certified a no opt-out class under Rule 23(b)(1) that includes all the proposed class members in this case and all the claims raised in this case.” On February 3, 1992, the objectors filed a motion in state court to strike or to vacate the order of a mandatory class on one simple ground: the jurisdictional defect about the failure of Judge McLaughlin to qualify under Ind. T.R. 79(5). App. 51a. Under State law, objectors were required to refrain from making a chal- lenge on any other issue, such as the due process or equal protec- tion claims or the impropriety of the class certification under T.R. 23, at the risk of waiving any objection to the court’s jurisdiction. Thomas v. State, 656 N.E. 2d 819 (Ind. 1995); Morrison v. State, 542 N.E. 2d 564, 570 (Ind. 1989). On February 14, 1992, the federal plaintiffs (now number- ing 90 named individuals) filed an amended complaint in the district court, adding two new causes of action, a state unjust en- richment claim, and a federal claim arising under the Compre- hensive Environmental Response, Compensation and Liability Act [hereafter CERCLA], 42 U.S.C. § 9601. In this complaint, the federal plaintiffs again sought certification of a class for pu- nitive damages under F.R.Civ. P. 23(b\(3), allowing potential class members adequate notice of their right to opt out of the class. On March 6, 1992, the federal plaintiffs filed in state court a 33-page memorandum of law in support of their motion to va- cate the order certifying the mandatory class. Again, this memo- randum focused exclusively on Judge McLaughlin’s lack of per- sonal jurisdiction in the case, and sought his revocation under the clear terms of T.R. 79(5). App. 51a. The memorandum clarified that under Indiana law the defect is jurisdictional. It also noted that under Indiana law new parties to an action may object to the lack of jurisdiction of a special judge when they are first brought into the action. State ex rel. York v. Newton Circuit Court, 531 N.E. 2d 198 (Ind. 1988), State ex rel. Rabel v. Jasper Superior Court, 467 N.E. 2d 693 (Ind. 1984), and Walb v. Eshelman, 94 N.E. 566 (Ind. 1911). Indeed, under Thomas, supra, and Morri- son, supra, they must do so before proceeding further in the case or else waive this objection. State law, moreover, requires a mo- 7 tion to revoke the appointment of a special judge to be heard not by that special judge, but by the Chief Judge. Stephen v. State, 193 N.E. 375 (Ind. 1933). On March 18, 1992, ignoring Stephen, Judge McLaughtin ruled on the motion challenging his jurisdiction, denying the ob- jectors’ motion for his removal from the case on the ground that he had failed to appear and qualify within the jurisdictional pe- riod. Judge McLaughlin offered two reasons for this ruling. First, the federal plaintiffs “are not such parties as can file motions for change of judge or attack the authority of the Special Judge.” Second, he found the specific requirements of Ind. T.R. 795) to be “useless.” On March 25, 1992, the federal plaintiffs filed a praecipe (the Indiana equivalent of the notice of appeal in federal practice, see Rule 3, F.R. App. P.) to seek a writ of prohibition challenging of Judge McLaughlin’s jurisdiction. The federal plaintiffs had not yet filed any motions based on their objections to the propriety of a mandatory class under T.R.23(B)(1) or based on their federal constitutional claims of denial of due process. As discussed be- low, these challenges would follow on June 5, but were not yet before the state court. The only order on file at this stage of the litigation in State court, and thus the only possible basis for the filing of th praecipe was the judge's order finding the jurisdic- tional limit on his power “useless.” For strategic reasons the fed- eral plaintiffs decided not to pursue a direct appeal on this matter, and thus did not file the record with the Supreme Court of Indi- ana. On March 26, 1992, in an unreported opinion Judge Moody granted -- over the strenuous objections of the oil company -- the federal plaintiffs’ motion under Fed. R. Civ. P. 15(a) to file an amended complaint. Braun v. Amoco Oil Company, Civ. No. H91-360 (N.D. Ind. Mar. 26, 1992), at 1-5. Specifically, the dis- trict court allowed the federal plaintiffs to add a federal cause of action under CERCLA, noting that under 42 U.S.C. § 9613(b) it has exclusive jurisdiction over the CERCLA claim. Jd. at 8-9. The Court also denied Amoco’s motion for a stay of the federal proceedings on grounds that the parallel state-court litigation was under way. /d. at 5-10. The district court also questioned “the ability of the state court proceedings to adequately protect the rights and interests of all of the plaintiffs in this federal action,” id. at 9: “The Martin class appears to be the same as the proposed class in this action, but, in fact, the persons within the class who filed the state action are not the same persons who filed this ac- a tion, and the [4] named plaintiffs in Martin are substantially less in number than those in this case [90]. Moreover there is a dis- pute among the parties in this action as to whether the certified class in Martin is in fact valid and sufficiently broad to include all of the members of the proposed class in this action.” /d. at 9- 10. On June 5, 1992, the federal plaintiffs filed a motion if state court for leave to opt out of the mandatory class action, of- fering several grounds for doing so: (1) lack of pre-certification notice, (2) lack of meaningful hearing to consider the propriety of certifying a mandatory class on the facts of this case, (3) the constitutional right to opt out of a class action predominantly for money judgments, and (4) fundamental fairness to litigants and judicial economy (federal plaintiffs should not be required to en- gage in litigation on same issues both in state and in federal court); Judge McLaughlin took the motion under advisement. After conducting a groundwater investigation, Amoco is- sued a news release on June 17, 1992, repeating the statistic that 16.8 million gallons of petroleum hydrocarbons had leaked to the ground under the refinery, but claiming that only about 25,000 to 50,000 gallons had “migrated past the refinery’s western barrier system into limited portions of the residential area adjacent to the refinery.” App. 62a. According to the oil company, the under- ground oil was confined to “isolated pockets along First Street, right up next to the refinery’s well-point system, and along the refinery’s unused utility corridor near 126th Street.” App. 62a. With no response to its motion to opt out, the objectors then filed an alternative motion in state court on June 22, 1992, seek- ing to intervene for purposes of establishing a subclass of prop- erty owners within the zone acknowledged by Amoco in its June 17 press release to be contaminated by the oil spill. The objectors argued that the state class representatives failed the typicality re- quirement since none of them lived within the admittedly con- taminated zone in Whiting. They suggested that Amoco could (and later did at trial) introduce evidence from its groundwater investigation supporting the claim that the representatives do not even have oil under their property. They also urged that the state class representatives did not meet the requirement of adequately protecting and representing the interests of the class, noting that none of the representatives ever testified in a hearing or a deposi- tion that he or she was able or willing to assume the fiduciary obligations of class representatives. The objectors noted that four federal plaintiffs (Dorthea and Joseph Zrnchik, Henry Cornelius, 9 and Marion Wilkening) live within the zone acknowledged by Amoco to be contaminated, and that they fully understand and are willing to undertake the responsibilities of class representa- tives. On June 24, 1992, the federal plaintiffs filed a 28-page memorandum in support of their earlier motion to opt out of the mandatory class action, upon which no action had yet been taken. In this memorandum the objectors made plain that they had “been made parties to a mandatory class action against their will and without any notice and opportunity to object.” The objectors relied expressly on this Court’s teaching in Phillips Petroleum Company v. Shutts, 472 U.S. 797 (1985) concerning the right to opt out of a class “wholly or predominately for money judg- ments.” /d. at 811, n. 3. In addition, the objectors urged that the intense discovery schedule’ in the federal case constitute/ a sepa- rate ground requiring that they be allowed to opt out of the state case to be able to focus their efforts on the federal case, citing and discussing relevant federal case law, including County of Suffolk v. Long Island Lighting Co., 907 F. 2d 1295 (2d Cir. 1990). On the same day this memorandum was filed, Judge McLaughlin denied the objectors’ motion of June 5, in an Order dealing with this momentous issue in one sentence: “The Court overrules all Motions to Opt Out of Class.” See also App. 39a (Judge Smart’s single sentence post-trial ruling to same effect). On August 27, 1992, the objectors filed a Motion to Set Aside and Vacate Mandatory Class Certification Order, or, In the Alternative, to Set a Hearing to Reconsider Whether Martin Should Continue as a Mandatory Class or an Opt Out Class. Judge McLaughlin postponed consideration of this motion. After the state plaintiffs sought an order under T.R. 53.4 denying the objectors’ motion as “repetitive,” the objectors filed a response on September 15, 1992, clarifying that the court had never ruled on any of the 7 independent arguments on the funda- mental constitutional issues they raised. On the same day Judge McLaughlin entered a hand written order assigning the objectors’ motion to vacate the mandatory class “for hearing at the pretrial 2-5-93.” On the same day Judge Moody granted the motion of the federal plaintiffs for an extension of time in which to complete 3 In response to requests for admissions and other ‘nterrogatories, Amoco deposited with counsel for petitioners 85 large boxes of docu- ments. Amoco scheduled depositions of 23 individual federal plaintiffs in June and 10 in July. EEO 10 discovery, and he set a date of November 1, 1993, for a trial in the district court. On October 29, 1992, the objectors filed another memoran- dum in state court in support of their motion to set aside the order certifying a mandatory class. Amoco attacked this motion as raising “the same objections that the court has already rejected.” The objectors replied that “not one [of the arguments regarding the propriety of the mandatory class] has ever been formally raised or formally ruled upon ty this court.” The objectors noted that “every court to have ever addressed the situation posed by this class -- namely certification of a mandatory class without pre-certification notice to absent class members -- has vacated the mandatory class certification.” Judge McLaughlin again post- poned consideration of the motion that these arguments sup- ported. On March 5, 1993 the federal plaintiffs filed a supplemental petition in state court to intervene to establish a subclass of Whiting residents living within the zone admitted by Amoco to be contaminated. The state plaintiffs filed an opposition to this petition on March 19. On April 26, 1993 Judge McLaughlin ruled as follows: “The Court overrules any pending ‘opt-out’ motions and orders that none shall be refiled as these have been heard on numerous occasions.” He then “opted out” of the state case, recusing him- self without explanation. The Hon. Robert Smart was substituted as special judge and duly qualified within the jurisdictional pe- riod. On June 2, 1993, the state plaintiffs withdrew their objec- tion to the intervention of one of the federal plaintiffs (Henry Comelius), while “continuing to maintain their objections to the intervention of the other [federal plaintiffs] .. and their objection to the creation of a subclass.” At a status conference on June 24, 1993, the state plaintiffs withdrew their prayer for injunctive relief. Judge Smart granted the state plaintiffs’ motion to substitute former federal plaintiff Henry Cornelius in the place of Eugene Burkat, Jr. and Wanda Burkat. Five points merit emphasis. First, the state case was henceforth “wholly ... for a money judgment,” Shutts, supra. Second, Cornelius lives within the geographical area that Amoco admitted to be contaminated after completion of its testing of the ground soil; none of the other named plaintiffs in the state class action do. Third, after Cornelius joined the state class as a named representative, he withdrew from the federal case, and is not a 11 petitioner in this Court. Fourth, none of the other federal plain- tiffs ever participated in the state case other than as strenuous objectors to mandatory inclusion in those proceedings. App. 13a, n. 1. On the same day, Judge Smart granted the motion of the objectors to withdraw their pending motion to establish sub- classes. Fifth, at the request of counsel for the state plaintiffs and after discovery had closed in the state case, Richard Komyatte, lead counsel for the objectors, agreed to assist in the state case as co-counsel, but all federal plaintiffs -- with the exception of Cor- nelius (not a petitioner here) -- objected continuously to coerced participation in the mandatory state class. On August 9, 1993, objectors asked Judge Smart to recon- sider Judge McLaughlin’s denial of their motion to opt out. In light of the fact that all parties agreed that the case now focused solely on money damages, the federal plaintiffs again urged that Shutts, supra, protected their right to opt out instanter. Judge Smart denied this motion on August 11, but later reserved ruling on the opt-out issue to a post-trial hearing. App. 39a. The state plaintiffs began their case-in-chief on October 8, 1993. At the conclusion of the evidence, this matter was submit- ted to the jury on November 22, 1993. On that day, while the jury was deliberating, the objectors renewed their motion of August 27, 1992, to opt out of this class. App. 16a. On November 23, Judge Smart ruled against the objectors on this issue in a single sentence denying a hearing to reconsider whether the state case should continue as a mandatory class or an opt out class. App. 39a. On November 29, 1993, the jury rendered verdicts in favor of Amoco and against the state plaintiffs on all counts. App. 16a. On December 14, 1993, Judge Smart entered a Final Judgment Order and Judgment on the Verdict. App. 16a, 40a. On the same day the objectors filed a motion for leave to intervene for pur- poses of filing a motion to correct errors and/or for purposes of filing an appeal. Judge Smart granted this motion on January 13, 1994, and on the same day, the objectors (now known as “inter- venors”) filed a motion to correct errors, again objecting to the denial of due process (lack of notice and hearing, and no opt-out) and of equal protection (automatic change of venue) in the state case. On March 21, 1994, Judge Smart held a hearing on the ob- jectors’ motion to correct errors. On June 6, 1994, Judge Moody granted summary judgment on the CERCLA claim to the federal plaintiffs, and he stayed the federal trial pending the outcome of the state proceedings, in- 12 cluding the appeals. App. 8a, 14a. class was improper under Indiana T.R. 23, id. at 14-22, and (2) that Judge McLaughlin's appointment as special judge was re- voked when he failed to comply with the jurisdictional require- ments of Ind. T.R. 79, id. at 35-45. App. 66a-67a. * The courts below ruled that the objectors waived their right to appeal the propriety of the certification of a mandatory class for failure to file a praecipe within 30 days after the date when the trial court entered a final order on this matter. App. 8a-9a. Although neither court specifies when that order became final. the most sensible conclusion that can be drawn from their opin- ions is that the date in question is January 23, 1992, when Judge McLaughlin certified the mandatory class. App. 8a, 14a Viewing The Supreme Court of Indiana granted a petition to transfer 13 this case from the Court of Appeals. Though briefed fully on the federal questions presented here, App. 67a, the Supreme Court of Indiana did not discuss these questions. Instead, it focused nar- rowly on “whether an order certifying a class action is interlocu- tory in nature or final upon entry and thus appealable as of right.” App. 7a. The Supreme Court did not vacate the other portions of the opinion of the Court of Appeals of Indiana, App. 12a-30a, but summarily affirmed these portions of the lower court's opinion. App. Ila. See Ind. App. Rule 11(B\3), discussed in note 4 of the Supreme Court’s opinion. App. Ila. In the event that this Court finds that the writ should issue to the Court of Appeals of Indi- ana, petitioners request that the petition be construed accordingly. Reasons for Granting the Writ The respondent oil company recently settled (for over $7.6 million) claims of damages to the property of residents of Inde- pendence, Missouri, arising from a similar oil spill from an Amoco refinery in Sugar Creek, Missouri. The lead counsel for Amoco both in that case and in this case appears to have ac- knowledged belatedly the seriousness of the injury suffered by property owners in Whiting, Indiana as a result of the oil spill. On July 30, 1998, he stated in a fairness hearing in federal court on a settlement of claims in the Sugar Creek case that the situa- tion in “Whiting is worse”: “the contamination in Sugar Creek is at very low levels. It is dissolved and it is in the groundwater and in Sugar Creek the groundwater runs as deep as 60 feet. It is not near the houses. Now, it does vary. But contrast that with Whit- ing, Indiana, where it’s on Lake Michigan. The level of the water in Whiting can be two feet, three feet, four feet, and in fact in Whiting, there was at various times contamination that went into some of the residents’ basements, and Amoco went in and reme- diated that. | compare that because in Sugar Creek, the situation is far different than it was in Whiting. Whiting is worse.” Tr. of Fairness Hearing, City of Independence v. Amoco Oil Co., Civ. No. 95-0019-CV-W-2 (W.D. Mo., July 30, 1998). App. 69a.“ Once litigation commenced, Amoco’s commitment “to pre- vent future leaks or spills,” App. 54a, turned into a denial that * This statement is directly relevant to this case, and has two sepa- rate indicia of credibility. It is a party admission by counsel for the oil company, Rule 801(d)(2), FR. Evid; and it is a statement by an “offi- cer of the court” contained within an official court record, Rule 201 (b), F. R. Evid. A certified copy of the transcript is on file with the Clerk of this Court 14 any “leak” or “spill”? had occurred, accompanied by the view that the oil company had no liability whatever for the event, if it ever happened. Only after seven years of costly litigation culmi- nated in victory for the oil company in the Supreme Court of In- diana on procedural grounds did the lead counsel for the oil com- pany admit what he had previously denied, that “Whiting is worse.” These seemingly small, but significant, shifts in this liti- gation illustrate an initial reason for granting the writ. This Court should address recurrent difficulties about the abuse of the class action by defendants to keep deserving claimants from reaching the merits of their claims in a forum of their choice. See, e.g. Bowling v. Pfizer, Inc., 143 F.R.D. 141, 152 (S.D. Ohio 1992); and see Judith Resnik, Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. DAVIS L. REV. 835, 836 (1997) (describing “accusations of collusion, attorney self- interest, and judicial acquiescence in or support of unfair settle- ments”); Susan Konaik, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 CORNELL L. REV. 1045 (1995) (documenting “improper manipulation of the class defini- tion to benefit the defendants and class counsel”); and Howard Downs, Federal Class Actions: Diminished Protection for the Class and the Case for Reform, 73 Neb. L. Rev. 646, 661-67 (1994) (illustrating financial conflicts between class counsel and class members), and id. at 671-82 (weakening of notice rights). In Amchem Products, Inc., et al. v. George Windsor et all, 117 S.Ct. 2231 (1997) (mass asbestos class settlement did not satisfy Rule 23 requirements of common issue predominance and adequacy of representation) this Court focused on two difficulties that arise in multidistrict class action litigation under federal Rule 23. Petitioners raised similar concerns in their frequently repeated objections to the certification of a mandatory class in state court. * The complaint filed by the federal plaintiffs in the district court described the object of the litigation as “a massive underground spill of oil, petroleum products, and other hazardous and ultra-hazardous chemicals which Amoco Oil Company has negligently and intentionally allowed to accumulate through leaks and spills at the Amoco Oil Whit- ing Refinery over a large number of years.” Once Amoco adopted a litigation posture, it insisted in the discovery process upon the “non- pejorative term ‘nderground oil’ rather than ‘oil spill.”” In deference to the etiquette of the oil company, neither of the decisions below uses the word “leak” or “spill.” The polite discourse is “alleged oi] migration.” App. 8a, or “possible underground migration of oil.” For a description of the noxious effects of this “migration” on the residents of Whiting, see App. 57a. 15 Dismissed by the Court of Appeals as “multiple minor motions,” App. 14a, these objections became all the more cogent after it became clear that the only relief sought by the state plaintiffs was damages. Whether the requirements of Ind. T.R. 23(B)(1) were met in this instance is a state law matter not resolved under Amchem or presented here. What is raised here as a federal due process matter is that the Indiana courts may not reach the con- clusion they did here without affording (1) adequate notice before deprivation of a liberty clarified by this Court, (2) a hearing commensurate with the deprivation of liberty suffered without a hearing, Mathews v. Eldrige, 424 U.S. 319, 339-50 (1976), and (3) a right to opt out of a mandatory class that -- as in Shutts -- was “wholly or predominately for money judgments.” This case illustrates, moreover, not only the danger of mandatory inclusion of objectors in a class action, but also the evil of mandatory, wholesale exclusion of members of racial minorities from juries called to deliberate about environmental damage occurring in communities in which they predominate. We discuss the first question presented in §§ 1-3, and the second question in § 4 be- low. 1. The Decision Below Departs from this Court’s Teaching about Due Process Rights to Adequate Notice, to a Fair and Full Hearing, and to Opt Out of a Mandatory Class Action Wholly for Money Judgments.” The Decision Below Is in Di- rect Conflict with Decisions of Federal Courts of Appeals. A. Petitioners raised below and adequately preserved throughout all stages of the litigation three issues relating to the violation of their due process rights: (1) lack of notice before the determination of a mandatory class, (2) lack of any meaningful hearing on this issue, and (3) denial of the right to opt out of a mandatory class action that was predominantly for a money judgment. 1. Relying on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), petitioners objected immediately and repeatedly to the denial of their due process right to adequate no- tice before the certification of this potential class. In the Court of Appeals petitioners argued that “the right to be heard has little value unless one is informed of the matter pending. Mullane, 339 U.S. at 314. While actual notice is not required in every case, an elementary requirement of due process is notice that is reasona- bly calculated, under the circurnstances, to apprise the interested 16 parties of the pendency of the action and afford them an opportu- nity to present their objections. /d. In this case, no notice to any putative class member was even attempted.” Brief of the Interve- nors at 23-24. This case presents the question whether, under the circumstances such as those found in Shutts and in this case, the due process clause still requires what this Court said it did in Shutts: that “a fully descriptive notice [be] sent to each member of a class action with a clear explanation of the right to opt out of the class.” 472 U.S. at 798 (emphasis added). 2. Petitioners likewise objected immediately and repeatedly to the failure of the trial court to conduct a meaningful hearing regarding the mandatory class certification. Again, petitioners preserved this issue and argued it in the Court of Appeals: “the Due Process Clause, at a minimum, requires that a court provide a party with an opportunity to be heard prior to the deprivation of life, liberty, or property” citing Mullane, 339 U.S. at 313. See also Mathews v. Eldridge, supra. 3. Petitioners also objected immediately and repeatedly to the failure of the trial court to allow them to opt out of the man- datory state class action. In Shutts the Court held that a state class action procedure comports with the Due Process Clause of the Fourteenth Amendment where it requires that a fully descriptive notice be sent by first-class mail to each member of a class action with a clear explanation of the right to opt out of the class. 472 U.S. at 812. Petitioners have little to show for seven long years of litigation seemingly calculated to frustrate their effective access to the federal forum of their choice by wearing down their re- sources in a mandatory state class actrion that they wanted no part in. This result alone might counsel in favor of a clearer rule requiring class members to “opt in.” Nevertheless, petitioners do not renew the argument, rejected in Shutts, id. at 811, that the Due Process Clause requires each class member to consent af- firmatively to his inclusion within the class. Petitioners are con- tent with the Court’s view in Shutts that “If ... the plaintifi’s claim is sufficiently large or important that he wishes to litigate it on his own, he will likely have retained an attorney or have thought about filing suit, and should be fully capable of exercis- ing his right to ‘opt out.” /d. at 813. They present the due proc- ess question in this petition because the courts below departed from Shutts by failing to honor their manifest desire to opt out of a state class action “wholly or predominately for money judg- ments.” /d. at 812, n. 3. The first and most obvious manifestation of the objectors’ 17 desire to opt out was the filing of a separate action under Rule 20, F.R.Civ. P., in the district court. This fact alone “provides evi- dence that some class members have an interest in controlling the course of litigation involving their nghts.” Jack Friedenthal, Mary Kay Kane, and Arthur R. Miller, CIVIL PROCEDURE 736 (2d ed. 1993). At the time this action was filed, moreover, the state class plaintiffs had only sought certification of an opt-out class. The attorney for Amoco requested the attorney for the state class plaintiffs to change his opt-out class to a mandatory class. A state judge without proper jurisdiction then arranged a telephone conference call with these two attorneys, who told the judge their motions were “unopposed” although the federal plaintiffs re- ceived no notice before the certification “hearing.” Thereafter, the objectors -- with one exception (Henry Cornelius) -- persis- tently objected to their inclusion in the mandatory class and re- peatedly pressed their constitutional right to opt out of a class action seeking damages. See, e.g., John Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1382-84 (1995) (describing mandatory classes as “proba- bly the most aggressive tactic” to protect “defendants against the ‘anger’ that high stakes individual claimants, dissatisfied with the terms of the settlement class, will opt out”). The decision in Martin departs from the teaching of this Court on Shuts. B. The decision in Martin is in direct conflict with federal courts of appeal on two important federal questions, (1) the no- tice requirement and (2) the duty to afford a right to opt out of actions for money damages. 1. A party may lose a right to opt out of a mandatory class under Rule 23(b)(1), where notice and opportunity to be heard is given before the certification of the mandatory class. See, e.g., Robertson v. National Basketball Assn., 556 F. 2d 682 (2d Cir. 1977). By the same token, the failure to provide adequate notice is fatal. Jn re Temple, 851 F. 2d 1269 (11th Cir. 1988) (district court’s failure to notify plaintiffs of certification hearing violated due process, and authorized a writ of mandamus to require dis- trict court to vacate its order certifying a mandatory class action); see also In re Bendectin Products Liability Litigation, 749 F. 2d 300, 306 (6th Cir. 1984) (no opportunity for objectors to dispute whether there was a limited fund); and Jn re N. Dist. of Cal., Dal- kon Shield IUD Products Liability Litigation, 693 F. 2d 847, 857 (9th Cir. 1982) (error for court to certify nationwide 23(b)(1)(B) class for punitive damages without giving objectors wishing to pursue remedies in state courts an opportunity to participate in prior briefings and hearings). The Indiana trial court was fully 18 briefed on the federal violation posed by the failure to provide petitioners with notice prior to the crucial certification “hearing” (if a phone call between two lawyers and a judge can so be de- cribed), but never corrected this fatal error. Also fully briefed on the federal claims, App. 65a-67a, the Indiana appellate courts affirmed that result. This case thus presents a direct conflict be- tween the highest tribunal of a State and the Second, Sixth, Ninth, and Eleventh Circuits. 2. Expanding on this Court’s teaching in Shutts, the Ninth Circuit held in Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992), cert. granted, 510 U.S. 810 (1993), cert. dismissed, 511 U.S. 117 (1994), that class members have a due process right to opt out of a class action asserting significant monetary claims, even when conjoined with injunctive relief. 982 F. 2d at 392. The Indiana trial court was fully briefed on the Shutis issue, but de- nied petitioners’ due process right to opt out of a class action wholly for money damages. Also fully briefed on the federal claims, App. 65a-67a, the Indiana appellate courts affirmed that result. This case thus presents a direct conflict between the high- est tribunal of a State and the Ninth Circuit. The Court should resolve these direct conflicts. 2. The Court Has Expressed a Continuing Interest in the Is- sue of a Due Process Right to Opt of Class Actions. Twice within the past four years, the Court has granted cer- tiorari on a question similar to the first question presented here, only to dismiss the writ as improvidently granted. In Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994), the Court granted certio- rari on the following question: “Whether a federal court may ref- use to enforce the judgment in a nationwide class action vertified under Rule 23(b){1) and (b)(2) on the ground that unnamed class members have a constitutional right to opt out of any class action asserting monetary claims.” Brief for Pet. at i. More recently, the Court granted certiorari in Adams v. Robertson and Liberty National Life Ins. Co., 520 US. 83 (1997), involving state class action rules failing to provide for an opt out, on the question: “Whether the certification and settle- ment of this nationwide class action pursuant to Rules 23(b)(2), 23(b\ 1A), and 23(b)\(1)(B) of the Alabama Rules of Civil Pro- cedure, with no right to opt out, violate the Due Process Clause of the Fourteenth Amendment when all class members suffered individual monetary damages but the vast majority of class mem- 19 bers receive no monetary compensation for the release of their claims for compensatory and punitive damages.” Pet. for Cert., at i. These grants of certiorari reflect an interest by the Court in a recurrent issue of national importance. See, e.g., Stephen J. Sa- franek, Do Class Action Plaintiffs Lose Their Constitutional Rights?, 1996 WIS. L. REV. 263. If, after Ticor and Adams, this case seems like “deja vu all over again,” petitioners urge that the third time the Court has an opportunity to review Shutts should be a charm rather than a strike-out. Just as the Court on occasion overcomes suggestions of mootness to resolve critical issues “ca- pable of repetition yet evading review,” Moore v. Ogilvie, 394 U.S. 814, 816 (1969), so also the Court should not be overly hesitant in waiting for a perfect vehicle with which to address the confusion in lower courts over due process requirements in class actions. See Linda S. Mullenix, Getting to Shutts, 46 U. KAN. L. REV. 727, 730 (1998) (attorneys seeking to resolve class actions through the mandatory class procedure, especially mass tort liti- gation, need definitive resolution of the issue left open in Shutts). 3. This Case does not Suffer from the Defects that Led the Court to Dismiss the Writ in Ticor and in Adams. Petitioners understand that the Court’s continuing interest in an issue, by itself, does not constitute a ground for granting the writ if there-aré other defects in a particular case. By “adher[ing] scrupulously to the customary limitations on [the Court’s] dis- cretion” regardless of the significance of the underlying issue, the Court “promote[s] respect ... for [its] adjudicatory process.” //li- nois v. Gales, 462 U.S. 213, 224 (1983). For example, the writ may be denied or dismissed as improvidently granted to protect the interest of comity between the federal and state courts, and to protect the value of a fully developed factual and legal record, see, e.g., Adams, 117 S.Ct. at 1032. This case does not suffer from the defect later leading the Court to dismiss the writ as im- providently granted in 7icor and Adams. A. Hypothetical question. In Ticor, the Court dismissed the writ on the ground that “deciding this case would require [the Court] to resolve a constitutional question that may be entirely hypothetical.” 511 U.S. at 118. Three members of the Court were of the view that “[uJnless and until a contrary rule is adopted, courts will continue to certify classes under Rules 23(b)\(1) and 23(bX(2) notwithstanding the presence of damages claims; the 20 constitutional opt-out right announced by the court below will be implicated in every such action, at least in the Ninth Circuit.” /d. at 124-25 (O’Connor, J., dissenting). However the situation in Ticor is to be characterized, the repeated efforts of petitioners to opt out show that the question presented here is not hypothetical. B. Adequate presentation of federal claim. In Adams, the Court dismissed the writ on the ground that the petitioner’s fed- eral claim was not addressed by or properly presented to the Ala- bama Supreme Court that had rendered the decision to be re- viewed. Petitioners in Adams had cited a relevant case in their brief before the state Supreme Court; this portion of the brief, however, did not assert a general challenge to the state’s class action rules based on the Fourteenth Amendment, but focused only on the narrow question whether nonresident members of class were afforded due process. Adams, 117 S.Ct at 1029. That particular focus is absent from this record, which deals with in- state objectors who wish to proceed in federal court rather than in state court. Petitioners here, moreover, clearly briefed and argued to the Indiana Court of Appeals and to the Supreme Court of In- diana a federal due process challenge to state class action rules that did not afford right to opt out of a class action wholly for damages. App. 65a-67a. Thus this case fully meets the require- ments that a “state court had fair opportunity to address the fed- eral question sought to be presented,” Webb v. Webb, 451 U.S. 493, 501 (1981), and that “the claim was raised ‘at the time and in the manner required by the state law,“ Bankers Life & Casu- alty Co. v. Crenshaw, 486 U.S. 71, 77-78 (1988) (citing Webb). C. Waiver. As noted above, the objectors challenged the certification of the order of a mandatory class as improper under Indiana T.R. Rule 23(b\(1), App. 8a. The courts below ruled that the objectors waived their right to appeal the propriety of the cer- tification of a mandatory class for failure to file a praecipe within 30 days after the date (unspecified below) when the trial court entered a final order on this matter. App. 8a, 18a-20a. To reach this conclusion, the courts below mistakenly adopted the un- founded speculation of the oil company, Brief of Amoco Oil Company in Opposition to Intervenors’ Appeal, at 14-19, that the purpose of the praecipe filed on March 25, 1992, was to seek an appellate determination on the legitimacy of the class certifica- tion. Thus the Supreme Court wrote: “On March 25, 1992, Ko- myaite’s clients filed a praecipe with the trial court clerk, osten- sibly to appeal the class certification order, but they did not file the record with the Court of Appeals or otherwise pursue the ap- peal. Instead, they apparently chose to participate in the litigation 2 as members of the class.” App. 8a, 14a. Normally this Court is deferential to state court determinations of state law issues. But the Cou:t is not bound by conclusory assertions for which there is no support whatever in the record. See, e.g., Bousley v. United States, 118 S.Ct. 1604, 1612 (1988); and Crawford-El v. Button, 118 S.Ct. 1584, 1602 (1998) (Rehnquist, C.J., dissenting). And litigants in this Court may also rely on this rule to attack “find- ings” for which there is no evidence in the record. See, e.g., New York v. New Jersey, 118 S.Ct. 1726, 1736 (1998). There is no basis in the record for the assertion that the “ostensible” purpose of the praecipe filed on March 25 was to challenge the certification order. The only order on file as to which a timely filing of a praecipe could be had at that time was Judge McLaughlin’s order finding the explicit provision of a ju- risdictional rule, T.R. 79(5) to be ‘:seless.” Under state law, moreover, objection to the personal jurisdiction of a special judge must be made on that basis alone, or else it is waived. Thomas v. State, 656 N.E. 2d 819 (Ind. 1995); Morrison v. State, 542 N.E. 2d 564, 570 (Ind. 1989). For that reason petitioners refrained from making a challenge on any other issue, such as the due pro- cess or equal protection claims or the impropriety of the class certification under T.R. 23, until the chief judge had ruled on Judge McLaughlin’s jurisdiction. Hence the filing of the first praecipe could not conceivably have been to appeal on the lack of notice or hearing or the due process right to opt out protected in Shutts, for the obvious reason that petitioners had not yet asserted those rights and thus there was no final order on those issues from which to take an appeal. The only ruling on class certifica- tion was Judge McLaughlin’s order of January 23, 1992, which is defective for want of adequate notice to the federal plaintiffs. On February 3, 1992, the federal plaintiffs filed a motion to va- cate that order, exclusively on the ground that Judge McLaughlin was without any power to enter any orders in the case since he had not qualified within the jurisdictional period reflected in Ind. T.R. 79(6). Ignoring the requirement that another judge rule on this matter, Judge McLaughlin denied the objectors’ motion with respect to his jurisdiction on March 18. This was the only order on file and thus was the only possible ground for an interlocutory appeal at that point. By the same token, the personal jurisdiction of the special judge is the only issue that was waived when the appeal was not perfected after the filing of the first praecipe. The notion that petitioners “apparently chose to participate in the litigation as members of the [state] class,” App. 8a, like- wise has no basis in the facts of this record. Of the 90 federal 22 plaintiffs, only Henry Cornelius chose to participate in the state proceedings, and he is not a petitioner here. See List of Parties, ii. All the other federal plaintiffs continuously objected to inclusion in the state class action and continuously sought to exercise their opt-out right secured in Shutts. The Court of Appeals mistakenly lumped together the ob- jectors’ challenge to certification of the mandatory class with their due process rights: “Intervenors’ challenge to the propriety of the class and their due process challenge of the class were waived.” App. 20a. Petitioners concede that they waived their right to appeal the state law issue of the validity of the construc- tion of Ind. T.R. 23 in the certifying the mandatory class in Mar- tin. The law of the case now holds that “an [Indiana] order certi- fying a class action is interlocutory in nature” and not “final upon entry and thus appealable as of right.” App. 7a. Under state law applicable at the time of the entry of the order of certification of the class (a date that on this confused record neither of the courts below cared to specify) “class certification orders were final and appealable.” App. 8a. This petition, however, does not deal with that issue of state law, but with the violation of the Fourteenth Amendment when the Indiana courts authorized a deprivation of petitioners’ liberty and property interests without adequate notice, a fair and full hearing, and a right to opt out. Petitioners never waived any of these three rights. It is a wild stretch of the imagination -- not “harmless error” -- to suggest that petitioners ever waived their federal due process rights to adequate notice, a fair hearing, and an opportunity to opt out of a class action wholly for monetary judgments. Indiana cannot set up a Hobson’s choice to trap federal liti- gants from preserving their right to litigate in federal court: either challenge the jurisdiction of the state court and forego comment on due process and equal protection violations, or raise violations of the federal constitution and thereby forego challenge to the court’s authority to issue any orders at all. See, e.g., Stone v. INS, 514 U.S. 385, 387 (1995),Morales v. TWA, 504 U.S. 374, 381 (1992); Healy v. Beer Institute, 491 U.S. 324, 332 (1989). But that is precisely what occurred here. Amoco obtained an auto- matic change of venue from the county where the oil spill oc- curred (with a high percent of members of racial minorities) to a rural county (with virtually no racial minority residents). The state plaintiffs and Amoco then changed the state class action from an opt-out class to a mandatory class. Both counsel for the 23 state plaintiffs and counsel for the oil company were well aware of the pending federal case, but they both failed to give notice to counsel for the federal plaintiffs and then represented to the judge that their motions were “unopposed.” A state judge lacking per- sonal jurisdiction then signed the order of a mandatory class. When the federal plaintiffs were served the notice of the manda- tory class -- prepared and hand delivered by the oil company -- they had to make a stark either/or choice between attacking the personal jurisdiction of the judge (without mentioning any other issue) or raising a challenge to the class certification under T.R. 23 (and thereby forfeiting their right to attack the power of the judge without jurisdiction to enter the order in the first place). As Justice Holmes wrote: “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice... [I]t is necessary to see that local practice shall not be allowed to put unreasonable obstacles in the way.” Davis v. Wechsler, 263 U.S. 22, 24-25 (1923). Indiana has placed unreasonable obstacies in the way of the exercise of federal due process rights plainly and reasonably asserted throughout this litigation. All of the due pro- cess rights asserted in the first question presented are adequately preserved for resolution by this Court. 4. Amoco Offered No Race-Neutral Reason for its Requested Change of Venue at the Time it was Ordered. The Court Should Invalidate Automatic Change of Venue Rules that Exclude Members of Racial Minorities from Juries Deliber- ating about Environmental Damage Occurring in Communi- ties in which They Predominate. The second question presented is “[w]hether a State trial rule allowing an automatic change of venue violates the Equal Protection Clause of the Fourteenth Amendment, where the rule permits wholesale exclusion of members of racial minorities from sitting on juries called to deliberate about environmental damage occurring within communities in which they predomi- nate, and where no race-neutral reason for the request was re- quired at the time the change of venue was ordered.” Petitioners are not aware of any direct conflict among the federal circuits or highest state tribunals on this question. We note, moreover, that after the events in this case the Su- preme Court of Indiana amended T.R. 76. App. 49a. In Edmon- son v. Leesville Concrete Co., 500 U.S. 614 (1991), this Court 24 ruled that litigants in a civil action may not use peremptory chal- lenges to exclude jurors because of their race. Relying expressly on Edmonson, the Superior Court of Lake County, the very same court in which this case was first lodged, entered findings of fact and conclusions of law on September 18, 1991, holding that “an individualized race-neutral justification cannot possibly be made by a litigant who excludes essentially all black persons via an automatic change of venue from [Lake] County” and for that rea- son ruled that T.R. 76 could no longer be applied constitutionally to cases in which litigants sought an automatic change of venue from Lake County. Moore and Richardson v. Kocur, Cause No. 45D05-9101-CT-260 (Lake Co. Sup. Ct., Sept. 18, 1991). On December 6, 1991, the Supreme Court of Indiana, again relying expressly on Edmonson, announced an amendment to Rule 76, abolishing the automatic grant of change of venue, “without having to state why [the parties] could not receive a fair trial in the county where the lawsuit was properly filed.” App. 49a. In ruling on the equal protection claim presented by the objectors/intervenors, the Court of Appeals held that the objec- tors satisfied the requirement of a prima face showing of racial discrimination on these facts. App. 22a. But the court erred in finding that Amoco had rebutted this claim by arguing on appeal a claim never presented in the trial court: that “they requested a change of venue to escape the widespread negative publicity in the Whiting/Hammond area surrounding the alleged migration of oil from the refinery,” id. and in holding that Amoco “success- fully presented a race-neutral justification for the change of venue in the present case.” App. 23a. The Court should grant the writ on the equal protection question for two reasons. First, this record shows that an auto- matic change of venue rule can “may be circumstantial evidence of discriminatory intent.” App. 22a, citing Osmulski v. Becze, 638 N.E. 2d 828, 834 (Ind.Ct. App. 1994). As this Court acknowledged in Edmonson, peremptory challenges can be a surrogate for in- tentional racial discrimination in civil litigation. All the more so with an automatic change of venue away from a county with dense populations of racial minorities. Intentionality need not be demonstrated only in overt statements of evil minds, Yick Wo v. Hepkins, 118 U.S. 356 (1886), but can be demonstrated through circumstantial evidence, or may be the product of reasonable in- ferences from the totality of the circumstances, including, as here, adventitious behavior. Village of Arlington Heights v. Met. Housing Dev. Corp., 429 U.S. 252, 241 (1977). Here the oil company intentionally sought to move the case out of Lake 25 County, which under state law is the “preferred venue,” Ind. T.R. 75, to Newton County. Why? Amoco’s primary intent may have been to evade scrutiny in the county where the oil spill occurred. But it is reasonable to infer, as the Court of Appeals did in hold- ing that a prima facie case of racial discrimination had been made, App. 22a, that Amoco also wished the natural conse- quences of moving the case from a county the population of which is approximately 25% African-American to a county with a population of African-Americans less numerous than .1%. This statistic in the record does not include members of other racial minorities such as Hispanic-Americans, who form nearly 30% of the petitioners. See Appendix O, App. 53a. The Court normally defers to State procedural matters such as change of venue rules. Such deference must yield to strict scrutiny where, as here, a state trial rule authorizes mandatory, wholesale exclusion of members of racial minorities from juries. Peremptory challenges operate at retail, one juror at a time. Pre- cisely because automatic transfer rules are automatic, they are more sweeping, working their intended effects at wholesale, an entire county at one stroke. If Edmonson is to have any meaning- ful application to civil litigation, it should not leave open a vast loophole that allows litigators to eliminate racial minorities from juries by automatic transfers away from coounties where people of color are densely concentrated. Members of racial minorities should not be eliminated from deliberating on juries about envi- ronmental damage occurring in communities in which they pre- dominate. See, e.g., Foster, Justice from the Ground Up, 86 CAL. L. REV. 775 (1998); Vicki Been, Environmental Justice and Eq- uities, Chap. 25 in Patrick Rohan, ed., ZONING AND LAND USE CONTROLS (1995); Michael Gerrard, WHOSE BACKYARD, WHOSE RISK? (1994); Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495 (1994); Nat. Research Council, UNDERSTANDING RISK (1996). See Appendix O, App. 53a. Second, in its discussion of Amoco’s rebuttal of the prima facie case of racial discrimination, the Court of Appeals departed significantly from this Court’s jurisprudence concerning the bal- ance between free press and fair trial. In holding that the oil com- pany met its burden of demonstrating a race-neutral justification for the change of venue, the Court of Appeals overlooked the obvious fact that the oil company offered no evidence on jury bias whatever at the trial court. Since lawyers on both sides of the street are gifted at inventing post-hoc justifications for impermis- sible conduct, courts must be especially careful in scrutinizing reasons offered to justify racial discrimination in the administra- 26 tion of civil justice. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). The Court of Appeals failed to apply this standard here. In its brief before the Court of Appeals Amoco cited only one article from the Hammond Times, dated January 24, 1991, as evidence of a story that it claimed “cast Amoco in an unfavorable light.” Brief of Amoco Oil Company in Opposition to Interve- nors’ Appeal, at 24. We reproduce the entire article in the Ap- pendix. App. 57a-6la. The Court can determine whether this story casts the oil company in “an unfavorable light,” and more importantly, whether it is the sort of adverse publicity so poison- ing the atmosphere that no panel of unbiased jurors could be re- lied upon to render a fair verdict in the county where the events took place. See, e.g., Mu'mim v. Virginia, 500 U.S. 415, 432 (1991) (requiring inquiry whether jurors could put aside what they had read or heard and render a fair verdict on the evidence). In Mu ‘mim the defendant submitted to the trial judge 47 newspa- per articles relating to the murder “before the voir dire to make the judge aware of all of the allegedly prejudicial information to. which prospective jurors might have been exposed.” /d. at 433. Here, by contrast, the oil company offered only | newspaper arti- cle, App. 57a-61a, at the appellate stage of litigation to bolster a claim it never presented at trial. The Court should grant the writ on the equal protection issue, if only to advise lower courts not to dilute the rule governing jury bias articulated in cases like Mu ‘mim. Petitioners have sustained injury acknowledged by the respondent. If their plight is truly “worse,” on the oil company’s admission, than a similar Amoco oil spill in Missouri, App. 69a, then they should be allowed the opportunity to vindicate their rights in a fair and full hearing in the federal forum of their choosing, represented by counsel of their choice, and before a jury from which members of racial minorities are not automati- cally excluded. “[OJ}ne who has a unique property right should be able to determine when and where they want to assert that right.” Safranek, Do Class Action Plaintiffs Lose Their Constitutional Rights?, 1996 WIS. L. REV. at 294, n. 183. Perhaps a federal jury in Hammond on which urban African-Americans and Hispanics could sit would have reached the same verdict as the all-white rural jury in Kentland. Under the Fourteenth Amendment, how- ever, they are entitled to find that out in the forum of their own choosing, and they should not be bound by a proceeding that was 27 deeply flawed’ and to which they repeatedly and strenuously ob- jected. Petitioners have three due process rights: to pre- certification notice of a mandatory class, to a fair and full hearing on the certification issue, and to opt out of a class action wholly for a money judgment. They also have an equal protection right to a jury from which their African-American neighbors are not automatically excluded. This Court should address both questions presented. * For example, the state trial court allowed the oil company to pres- ent to the jurors evidence of other polluters in northern Indiana, such as steel companies and chemical companies. On the issue of whether “the levels of benzene on the class plaintiffs’ property were high enough to cause any short or long-term health probiems or physical discomfort,” the Court of Appeals relied on the testimony of a witness “who lives in the area but who was not a member of the class ... that he had never experienced any problems with oil on his property.” App. 24a. Petition- ers doubt that the district court or the Seventh Circuit would have in- duiged such leaps of logic, which F.R. Evid. 401 is designed to over- come. 28 Conclusion The petition for a writ of certiorari should be granted. Edward McGlynn Gaffney, Jr.* | William F. Satterlee III Valparaiso University School Larry G. Evans of Law Jack A. Kramer Valparaiso, IN 46383 Hoeppner, Wagner& Evans 219-465-7860 103 East Lincolnway * Counsel of Record Valparaiso, IN 46384 219-464-496 1 Patrick J. McNanama P.O. Box 374 Crown Point, IN 46307 219-756-2110 APPENDICES Date 1/23/91 2/1/91 4/1/91 4/24/91 6/10/91 10/10/91 1/7/92 1/23/92 App. la Appendix A Chronology of Principal Events Event Letter from Amoco to residents of Whiting ac- knowledges leak of 16.8 million gallons of oil at Whiting refinery 3 State plaintiffs [St. Ps] file 23(B)(3) class action in Superior Ct. [St. Ct.] for Lake County St. Ps files amended complaint, adding James Martin (lead P) & Mary Roman; still 23(B)(3) Amoco moves for change of venue, stating no reason in support of motion. Motion granted automatically under Trial Rule [T.R.] 76. Case transferred from Lake County (25% African- American population) to Newton County (.1% African-American population). Hon. Marvin McLaughlin appointed special judge, but fails to qualify w/in 20 days as re- quired in T.R. 79(5) for exercise of jurisdiction by special judge. 43 Federal plaintiffs [Fed. Ps] file complaint in U.S. Dist. Ct. for N. Dist. of Ind. [Fed. Ct.] seeking permissive joinder under Rule 20, F.R. Civ. P., of claims for compensatory damages, and class action under Rule 23(b)1), or in the alter- native under 23(b)(3), limited to issue of punitive damages; assigned to Hon. J. T. Moody Fed. Ps move for determination of 23(b)3) class, limited to issue of punitive damages St. Ps and Amoco file motions to certify manda- tory class under T.R. 23(B\1). Both counsel ad- vise Judge McLaughlin that their motions are “unopposed.” Without any notice to Fed. Ps or opportunity to be heard at certification “hearing,” Judge McLaughlin immediately enters Order — prepared by Amoco — for 23(B)(1) mandatory class with no opt-out. Amoco hand delivers in 1/28/92 2/3/92 2/14/92 3/6/92 3/18/92 3/25/92 3/26/92 6/5/92 “Amoco Comrnunicator” the Notice of Class Ac- tion — also prepared by Amoco — to residents of Whiting, Indiana. Amoco moves to stay proceedings in Fed. Ct. on ground that no opt-out class in St. Ct. includes all Fed. Ps and all claims in fed. case. Fed. Ps move in St. Ct. to vacate order of man- datory class, focusing exclusively on Judge McLaughlin’s lack of jurisdiction for failure to qualify under T.R. 79(5); no ruling on motion. 90 Fed. Ps file amended complaint in Fed. Ct., adding new Ps, a new state cle m of unjust en- richment, and a federal questic: claim under CERCLA. Fed. Ps file in St. Ct. a memorandum of law in support of motion of 2/3/92, focusing exclusively on Judge McLaughlin’s lack of jurisdiction for failure to qualify under T.R. 79(5). Judge McLaughlin denies Fed. Ps’ motion for his revocation, finding T.R. 79(5) “useless.” Fed. Ps file praecipe (notice of appeal) to chal- lenge Judge McLaughlin’s jurisdiction; ruling of 3/18/92 is the only order on file at the time; Fed. Ps later decide to abandon this appeal. Judge Moody grants motion of Fed. Ps (contested by Amoco) to file amended complaint, and denies Amoco’s motion for stay of fed. proceedings, questioning “ability of St. Ct. proceedings to protect the rights and interests of all the Fed. Ps in this action.” 7 Fed. Ps file motion in St. Ct. for leave to opt out of mandatory class action on 4 grounds: (1) lack of pre-certification notice, (2) lack of meaningful hearing to consider propriety of certification of mandatory class, (3) constitutional right to opt- out of class action predominantly for money judgment, and (4) fundamental fairness to liti- gants and judicial economy (federal plaintiffs should not be required to engage in litigation on 6/17/92 6/22/92 6/24/92 8/27/92 9/8/92 9/15/92 10/29/92 App. 3a same issues both in state and in federal court); no ruling on motion. Amoco news release claims that leak of 16.8 mil- lion gallons of oil is confined primarily to its own property, but acknowledges that 25,000 to 50,000 gallons of oil “migrated” past boundaries of re- finery to adjacent homes. Fed. Ps file alternative motion in St. Ct. seeking to establish subclass of residents living w/in zone acknowledged by Amioco in release of 6/17/92 to be contaminated. Fed. Ps file memorandum in St. Ct. in support of motion of 2/3/92 to opt out of mandatory class; Judge McLaughlin “overrules all motions to opt out of class.” Fed. Ps file motion in St. Ct. to set aside or vacate order certifying mandatory class or to set a hear- ing to determine whether the case should con- tinue as a mandatory class or as an opt-out class. In Fed. Ct. Judge Moody grants motion for exten- sion of time w/in which to complete discovery in fed. case, and sets trial date for 11/1/93. St. Ps file request in St. Ct. for order that Fed. Ps’ motion of 8/27/92 is “repetitive” T.R. 53.4. Amoco files in St. Ct. opposition to Fed. Ps’ mo- tion of 8/27/92. Fed. Ps file response to St. Ps’ motion of 9/8/92, noting that Judge McLaughlin had never ruled on any of the 7 arguments sup- porting Fed. Ps’ motion of 8/27/92. Judge McLaughlin denies St. Ps’ motion of 9/8/92, and postpones consideration of Fed. Ps’ motion of 8/27/92 to pre-trial conference, set for 2/5/93. Amoco files objection in St. Ct. that Fed. Ps’ motion of 8/27/92 raised same considerations that Judge McLaughlin had already rejected. Fed. Ps file memorandum in support of motion of 8/27/92, noting that Judge McLaughlin had never formally ruled on any of the arguments urged in support of their motion of 8/27/92. Judge 3/5/93 3/19/93 4/26/93 6/2/93 6/24/93 8/9/93 8/11/93 10/8/93 11/22/93 11/23/93 App. 4a McLaughlin again postpones consideration of motior of 8/27/92. Fed. Ps file supplemental petition in St. Ct. to in- tervene in St. class action as subclass of residents living w/in zone acknowledged by Amoco in re- lease of 6/17/92 to be contaminated. St. Ps file opposition to Fed. Ps’ petition of 3/5/93. Judge McLaughlin “overrules any pending opt- out motions,” and recuses himself from St. case. Hon. Robert Smart is named special judge and qualifies under T.R. 79(5). St. Ps move to substitute Henry Cornelius (a for- mer Fed. P) but maintain objection to interven- tion by other Fed. Ps and to creation of a sub- class. Status conference: St. Ps withdraw prayer for in- junctive relief. Judge Smart grants motion to sub- stitute former Fed. P Henry Cornelius in place of Eugene and Wanda Burkat; Cormelius withdraws as Fed. P. Judge Smart grants motion of Fed. Ps to withdraw motion of 3/5/93 to intervene as sub- class. Richard Komyatte, counsel for Fed. Ps, agrees to assist St Ps as co-counsel, but all Fed. Ps (other than Cornelius) continuously object to participation in mandatory state class action wholly for monetary judgment. Fed. Ps move in St. Ct. to reconsider Judge McLaughlin’s denial of motion to opt out, based on stipulation of St. Ps and Amoco that state case is wholly for damages. Judge Smart motion to reconsider Judge McLaughlin’s denial of motion to opt out Trial begins in St. Ct. State case submitted to jury; while jurors are de- liberating, Fed. Ps renew motion of 8/27/92 to opt out of mandatory class. Judge Smart denies Fed. Ps’ motion to opt out, and denies hearing to reconsider whether S. case 11/29/93 12/14/93 1/13/94 3/21/94 6/8/94 8/1/94 8/31/94 App. 5a should continue as mandatory class Jury verdict against St. Ps and for Amoco on all counts. Judge Smart enters final judgment order & judg- ment on the verdict. Fed. Ps file motion for leave to intervene for purposes of moving to correct errors or to file an appeal. Judge Smart grants Fed. Ps’ motion of 12/14/93; Fed. Ps file motion to correct errors: lack of pre- certification notice; denial of fair opportunity to oppose certification of mandatory class; denial of right to opt out of class action wholly for money judgment; denial of equal protection through automatic grant of change of venue from Lake Courty to Newton County Hearing in St. Ct. on motions to correct errors. Amoco opposes ability of Fed. Ps (Intervenors) to file a motion to correct errors. Judge Moody grants Fed. Ps motion for summary judgment on CERCLA claim in amount of $46K, and stays Fed. case pending final resolution of St. Ct. proceedings, including appeals. Judge Smart denies Fed. Ps’ motion to correct errors, denies Amoco’s opposition to Fed. Ps’ motion to correct errors, grants judgment on the evidence on intentional trespass claim against Amoco; holding that class representatives failed to prove compensatory damages, he awards nominal damages in the amount of one dollar to each named class representative (total of $2) Fed. Ps file praecipe in timely basis. In briefs be- fore the Ct. of App. of Ind. Fed. Ps argue federal constitutional questions: (A) denial of due proc- ess through (1) lack of pre-certification notice, (2) lack of fair opportunity to oppose certification of mandatory class, and (3) denial of right to opt out of class action wholly for money judgment; and (B) denial of equal protection through auto- matic grant of change of venue from Lake 4/3/97 7/10/97 /29/98 9/18/98 App. 6a County to Newton County. Fully briefed on federal constitutional Qs, Ct. of App. of Ind. issues opinion ruling that Fed. Ps waived their right to challenge certification of mandatory class by failure to file praecipe w/in 30 days of final judgment; Ct. did not directly address due process claims of Fed. Ps (lack of notice, lack of meaningful hearing, denial of right to opt out), but ruled in single sentence that they were waived along with the right to challenge certification order. On equal protection issue, Ct. of App. finds prima facie case of racial discrimi- nation in automatic grant of request for change of venue, but finds that Amoco offered a race- neutral justification in rebuttal at appellate stage of litigation. Ct. of App. of Ind. denies rehearing. On transfer, S. Ct. of Ind. rules that a certification order is interlocutory in nature. Fully briefed on federal constitutional Qs, S.Ct. of Ind. does not address these federal Qs, but summarily affirms the Ct. of App. on all other issues. In A-232, Justice Stevens grants application for extension of time w/in which to file a petition for certiorari, up to 10/28/98. App. 7a Appendix B In the Supreme Court of Indiana James Martin, Mary Roman, Robert O’Drobinak and Henry Cornelius, Individually and on Behalf of All Others, Appellants/Class Representatives Below, V. Amoco Oil Company, Appellee/Defendant Below. No. 56A03-9409-CV-333 in the Court of Appeals No. 56S03-9804-CV-242 in the Supreme Court Appeal from the Newton Circuit Court The Honorable Robert B. Smart, Judge Cause No. 56C01-9105-CT-67 June 29, 1998. Saul I. Ruman, David W. Holub, David M. Hamacher, Hammond, Richard P. Komyatte, Highland, John W. Barce, Kentland, for Appellants. Larry G. Evans, William F. Satterlee, III, F. Joseph Jaskowiak, Jack A. Kramer, Valparaiso, Patrick J. McManama, Crown Point, for Intervenors Joseph & Dorthea Zrnchik, et al. James J. Neath, Amoco Oil Company, Chicago, Evan E. Steger, Indianapolis, Thomas F. Ryan, Timothy E. Kap- shandy, Chicago, for Appellee. SHEPARD, Chief Justice. The Court of Appeals expressed doubt in this case about whether an order certifying a class action is inter- locutory in nature or final upon entry and thus appealable as of right. We hold it is interlocutory. Procedural History On February 1, 1991, appellant Robert O’Drobinak filed suit against Amoco Oil Company on behalf of himself and 500 residents of Whiting, Indiana. These claims origi- App. 8a nated from a notice from Amoco to the residents which warmed of the possibility of underground oil migration onto their properties. Both Amoco and the plaintiffs moved to certify the class under Indiana Trial Rule 23(B\(1) on Janu- ary 23, 1992. The court granted the motion on the same day. Eight days later, attorney Richard Komyatte entered an appearance for a group of individuals who were at that time pursuing @ separate suit in federal court based on the same alleged oil migration.' On February 3, 1992, these individuals moved to va- cate the class certification order. The court denied this and similar subsequent motions.? On March 25, 1992, Ko- myatte’s clients filed a praecipe with the trial court clerk, ostensibly to appeal the class certification order, but they did not file the record with the Court of Appeals or other- wise pursue the appeal. Instead, they apparently chose to participate . the litigation as members of the class. Nearly a year and seven months later, the jury returned verdicts of not liable on all counts. The court entered final judgment on December 14, 1993. The trial court later granted plaintiffs’ motions to correct error as to one claim, but it largely left the jury verdict intact. On appeal, plaintiffs claimed, in part, that the tral court erred in certifying the class under T.R. 23(B\1). Writing for the Court of Appeals, Judge Garrard held that they had knowingly waived their ngiit to present the issue on appeal. Martin v. Amoco Oil Co., 679 N.E.2d 139, 145 (Ind. App.1997). In so deciding, the court observed that, at the time the order was entered, Indiana law clearly stated that class certification orders were final and appealable. /d. (citing American Cyanamid Co. v. Stephen, 600 N.E.2d 1387 (Ind.Ct.App. 1992)). It held that appellants had relin- quished the opportunity for appeal that they possessed in 1992. It was correct to hold that at the time relevant to this appeal, class certification orders were final and appealable. ' The federal suit is currently stayed pending the outcome of this appeal. 2 Eventually, the court ordered these plaintiffs to refrain from filing repetitive motions on the issue. App. 9a In coming to its conclusion, however, the court de- clined to ground its decision on the premise that class certi- fication orders remain today final interlocutory orders, Stating: “it is not clear after our supreme court’s decision in Berry v. Huffman, 643 N.E.2d 327 (Ind. 1994) whether class certification orders are final and appealable orders at the present time.” Martin, 679 N.E.2d at 144. We granted trans- fer to clarify whether Berry, decided after the time relevant to this appeal, changed the law in this regard. Discussion The Court of Appeals pondered whether this case could be distinguished from Berry on the ground that the trial court’s judgment in Berry dealt with a motion for par- tial summary judgment under T.R. 56(C) while in the in- stant case the trial court granted motions for certification under T.R. 23(B)(1). For the purpose of determining the appealability of a trial court order, however, this distinction is without significance. Berry v. Huffman was not a case about summary judgment or about class actions. It addressed the general appealability of orders under Trial Rules 54 and 56. As we said then: “[T]he certification requirements of Trial Rules 54(B) and 56(C) supersede the distinct and definite branch doctrine. Judgments or orders as to less than all of the is- sues, Claims, or parties remain interlocutory until expressly certified as final by the trial judge. To the extent that Ri- chards and other cases support the distinct and definite branch doctrine, they are overruled. Were we to hold oth- erwise, litigants would again be left to guess whether or not a given order was appealable. This is precisely the situation that T.R. 54(B) and 56(C) were drafted and adopted to pre- vent. Berry, 643 N.E.2d at 329 (citations omitted). This logic applies with equal force to class certification orders and, indeed, to all orders or judgments which are not “final” under the requirements of Trial Rule 54(B). Were this not so, the rule would undoubtedly be swallowed by its own exceptions. The distinct and different branch doctrine, su- perseded by our adoption of the Indiana Rules of Trial Pro- cedure as explicitly stated in Berry, would live on in prac- App. 10a tice if not in word. A judgment or order as to less than all of the issues, claims, or parties in an action may become final only by meeting the requirements of T.R. 54(B). These require- ments are that the trial court, in writing, expressly deter- mine that there is no just reason for delay and, in writing, expressly direct entry of judgment. T.R. 54(B); Berry, 643 N.E.2d at 329. We adopted Rules 54(B) and 56(C), based on the fed- eral model, in an effort to provide greater certainty to liti- gating parties and to strike an appropriate balance between the interests in allowing for speedy review of certain judg- ments and in avoiding the inefficiencies of piecemeal ap- peals. Berry, 643 N.E.2d at 329 (citing 3 William F. Har- vey, Indiana Practice: Rules of Procedure Annotated § 54.2 at 480-82 (2nd ed. 1988 & Supp.1993)). Unsatisfactory ex- periences with the common law “distinct and different branch of litigation” doctrine, which often lead to ineffi- cient and unjust results, had much to do with the change. /d. at 328 (citing as examples Guthrie v. Blakely, 234 Ind. 167, 125 N.E.2d 437 (1955); Washington v. Chrysler Corp., 137 Ind.App. 482, 200 N.E.2d 883 (1964).) The formalistic (but bright line) approach to which we now adhere removes uncertainties about when a party should appeal, thus minimizing the nsk that an appeal will be dismissed as premature or that the right to appeal will be inadvertently lost. Further, the rules place the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the individual best able to make such decisions-the trial judge. /d. To the extent that Martin v. Amoco Oil Co., 679 N.E.2d 139 (Ind.App.1997) and other cases support the continuation of the distinct and definite branch doctrine, they are overruled.3 Unless the trial court certifies its T.R. 23 determination as final under T.R. 54(B), it remains in- > Footnote two of Connerwood Healthcare v. Estate of Herron, 683 N.E.2d 1322 (ind.Ct.App.1997), stating “we agree [with the Martin court) that class certification orders are final and appeai- able,” is specifically disapproved. | z + . 3 w 2g Lig i App. lla terlocutory. As we stated in Berry: “Were we to hold oth- erwise, litigants would again be left to guess whether or not a given order was appealable. This is precisely the situation that T.R. 54(B) and 56(C) were drafted and adopted to pre- vent.” Berry, 643 N.E.2d at 329. Conclusion The Court of Appeals properly disposed of the claims in this appeal, and we summarily affirm on each claim. Ind. Appellate Rule 11(B)(3).4 The trial court is affirmed in part and reversed in part in accord with the mandate of the Court of Appeals. Dickson, Sullivan, Selby and Boehm, JJ., concur. * We take this opportunity to re-explain the difference between the terms “summarily affirm” and “expressly adopt.” Indiana Ap- pellate Rule 11(B)3) states in part: “The opinion or memorandum decision of the Court of Appeals shall be final except where a peti- tion to transfer has been granted by the Supreme Court. If transfer be granted, the judgment and opinion ... of the Court of Appeals shall thereupon be vacated and held for naught, except as to any portion thereof which is expressly adopted and incorporated by reference by the Supreme Court, and further, except where summarily affirmed by the Supreme Court.” Often, as in this instance, this Court grants transfer to address only one of several issues addressed by a Court of Appeals’ opinion. When this occurs, we use the term “summarily affirm” to indicate that we decline to review the remainder of the opinion. McGowan v. State, 674 N.E.2d 174 (Ind.1996). In essence, we partially deny transfer on these issues. Id. (citing Kimberlin v. DeLong, 637 N.E.2d 121, 123 (Ind.1994)). In contrast, the term “expressly adopt” indi- cates that we accept the reasoning of a Court of Appeals’ opinion as Our Own. App. 12a Appendix C In the Court of Appeals of Indiana James Martin, Mary Roman, Henry Cornelius, and Robert O’Drobinak, Individually and on behalf of all others similarly situated, Appellants-Plaintiffs, VS. Amoco Oil Company, Appellee/Cross-Appellant Defendant. Joseph and Dorthea Zmchik, et al., Appellants/Intervenors, VS. Amoco Oil Company, Appellee/Defendant. No. 56A03-9409-CV-333. Appeal from the Newton Circuit Court The Honorable Robert B. Smart, Judge Cause No. 56C01-9105-CT-67 April 3, 1997 Rehearing Denied, July 10, 1997. Attorneys for Appellants: Saul I. Ruman, David W. Holub, David M. Hamacher, Ruman, Clements, Tobin & Holub, P.C., Hammond, Indiana; John W. Barce, Barce & Ryan, Kentland, Richard P. Komyatte, Komyatte & Free- land, Highland, Indiana; Larry G. Evans, William F. Sat- terlee, III, F. Joseph Jaskowiak, Jack A. Kramer, Hoeppner, Wagner & Evans, Valparaiso, Indiana; Patrick J. McManama, Patrick J. McManama, P.C., Crown Point, In- diana. Attorneys for Appellee: Thomas F. Ryan, Timothy E. Kapshandy, Brandon D. Lawniczak, Sidley & Austin, Chi- cago, Illinois; James J. Neath, Amoco Oil Company, Chi- cago, Illinois; Fred R. Biesecker, Ice Miller Donadio & Ryan, Indianapolis, Indiana. GARRARD, Judge. didi | year he a ee a DR Ee ee eo me ee Ee eS Oe ee ee ee NS ae aE OE RESTA Pee ELEN ET Ne yey TT ee ee ee App. 13a James Martin, et. al. (collectively “Class Plaintiffs’), Amoco Oil Company (“Amoco”), and Joseph and Dorthea Zrnchik, et al. (collectively “Intervenors”)' appeal various facets of a class action involving the alleged underground migration of cil from Amoco’s Whiting, Indiana refinery to Class Plaintiffs’ and Intervenors’ property. Reversed and remanded in part, and affirmed in part. FACTS This bitterly contested and often vexatious appeal be- gan its journey to this court on February 1, 1991, when Robert O’Drobinak and Eugene Burkat’ filed suit against Amoco in Hammond, Indiana on behalf of themselves and the 500 residents of Whiting, Indiana who had received no- tice from Amoco of the possible underground migration of oil onto their properties. The complaint, as finally amended, alleged negligence, negligence per se, nuisance, strict li- ability, negligent/intentional infliction of emotional distress, and intentional trespass on the part of Amoco. On April 24, 1991, Amoco moved for an automatic change of venue from Hammond pursuant to then Ind. Trial Rule 76. After both parties struck a proffered county, the cause was venued to the Newton County Circuit Court. Shortly thereafter, on June 10, 1991, Judge Marvin McLaughlin was appointed special judge. Judge McLaugh- lin immediately assumed control of the case, but did not file an appearance and qualification as special judge. The next significant event did not occur until January 23, 1992, when Class Plaintiffs and Amoco both filed mo- ' We refer to these parties as Intervenors solely for the sake of convenience. They originally became part of this class action as un- named class plaintiffs and intervened only after the jury verdict for purposes of filing a motion to correct error and pursue the present appeal. Because their status during the various stages of the litiga- tion is in question, we use the term “Intervenors” only as a collective name for the group and do not imply that they officially intervened to become part of the sur ? Mr. O’Drobinak was subsequently joined as a class represen- tative by James Martin and Mary Roman, while Mr. Burkat dropped out of the suit on June 24, 1993. App. 14a tions to certify the class as a mandatory class under Ind. Trial Rule 23(B)(1). A telephone conference between Class Plaintiffs, Amoco, and Judge McLaughlin was held and the order certifying the class as a T.R. 23(B)(1) man- datory class was entered the same day the motions were made. It is worth note that, as was characteristic of the en- tire three year life of this suit, the interims between events of major importance were filled with multiple minor mo- tions by the parties to which the trial court was forced to respond.” On January 31, 1992, eight days after the class certifi- cation order, attorney Richard Komyatte entered his appear- ance on behalf of a group of individuals (the Intervenors) who were then pursuing a separate suit against Amoco in _ federal court based on the same alleged oil migration.* On February 3, 1992, Intervenors filed a motion to vacate the class certification order and to revoke the appointment of Judge McLaughlin for failing to properly appear and qualify under Ind.Trial Rule 79. Judge McLaughlin subsequently denied both motions. The Intervenors repeatedly filed mo- tions to vacate the certification order and revoke Judge McLaughlin’s appointment. These motions were continu- ously denied until Judge McLaughlin ordered the Interve- nors, on the motion of Amoco, to refrain from filing repeti- = tive motions on the matter. On March 25, 1992, the Interve- nors filed a praecipe, ostensibly to appeal the class certifi- cation order, but did not file the record with this court or pursue the appeal in any manner. Between March and June of 1992, the parties, now in- cluding the Intervenors, continued disputing the limits and process of discovery, many of the disputes involving dis- covery of unnamed class members. Eventually Class Plain- tiffs agreed, though reluctantly, to draft and send a ques- tionnaire to the unnamed class members about their indi- vidual claims and damages. The questionnaire explicitly > To put in context the amount of material the trial court was forced to consider, we point out that the record on appeal consists of 16,321 pages in 74 volumes packaged in 14 boxes. * Intervenors’ federal suit is currently stayed pending the out- come of the present appeal. a aa lg OR a App. 15a Stated that failure to answer the questionnaire and return it to the class representatives would jeopardize the unnamed members’ ability to participate in the suit and possibly pre- clude them from making any claims against Amoco. On June 24, 1992, the trial court, upon the motion of Amoco, issued an order setting a deadline for the return of the ques- tionnaires and ordering that any unnamed member who did not respond before this deadline would be dismissed from the suit. The deadline was repeatedly extended by the trial court, but eventually approximately 301 of the 500 class members were dismissed from the suit. After almost two years as special judge, Judge McLaughlin recused himself on April 26, 1993, and Judge Robert Smart was appointed as special judge. One day later, on April 27, 1993, Judge Smart filed his appearance and qualification as special judge. None of the parties chal- lenged Judge Smart’s appointment or appearance at that time, or now on appeal. On June 2, 1993, Henry Cornelius, a former member of the Intervenors, was named a class representative. At this time, attorney Komyatte along with the Intervenors joined Class Plaintiffs in the prosecution of this suit.° The last challenged discovery order was filed on June 24, 1993. This order required independent medical examinations (“IMEs”) for all class members who were to testify about physical discomfort and ailments allegedly caused by the under- ground oil. Most class members who were to testify eventu- ally submitted to the IMEs, but it appears from the record that some witnesses were prevented from testifying about any physical discomfort because they had not submitted to the examinations. Opening statements by Class Plaintiffs began on Oc- tober 7, 1993. On October 8, 1993, the trial court granted Amoco’s motion in limine excluding any reference to Class > For the sake of convenience, we will refer to the joined group of the Class Plaintiffs and Intervenors during the trial as the Class Plaintiffs. We note that the Intervenors reasserted their separate identity when they petitioned to intervene after the verdict to pursue a separate motion to correct error. App. 16a Plaintiffs’ fear or anxiety caused by fires or explosions at the Whiting refinery. Class Plaintiffs objected to this order in a timely manner, thus preserving the issue for appeal. The trial continued for the next seven weeks until the jury began deliberating on November 22, 1993. On that day, while the jury was still deliberating, Class Plaintiffs re- newed their motion to vacate the class certification order and revoke the appointment of Judge McLaughlin. The next day Judge Smart denied both the motion to vacate the class certification order and the motion to revoke the appointment of Judge McLaughlin. On November 29, 1993, the jury re- turned a verdict of not liable on all counts. Judge Smart en- tered final judgment on this verdict on December 14, 1993. On December 30, 1993, the Intervenors, no longer acting as part of the class, filed a motion to intervene for the purpose of filing a motion to correct error. Judge Smart granted this motion to intervene on January 13, 1994. Both the Intervenors and the Class Plaintiffs then filed their indi- vidual motions to correct error on January 13, 1994. Over the next eight months, the trial court heard-arguments by the parties and responded to a series of accusations and motions filed by and against all three parties. On August 1, 1994, Judge Smart entered his order on the various motions to correct error. This order granted judgment on the evidence on the intentional trespass claim against Amoco. Judge Smart then proceeded to hold that the class representatives had failed to prove any compensatory damages and awarded each of the named class representatives nominal damages in the amount of one dollar. In all other respects, Judge Smart affirmed the verdict of the jury. All three parties appeal this decision. Further facts will be provided where necessary. ISSUES Class Plaintiffs, Intervenors, and Amoco present sev- eral issues for review which we consolidate and restate as follows. Intervenors present four issues on appeal which we re- state and consolidate as: SERRE INN hth SS. ROS iP CN metab Reson lad eancytn ed gi, App. 17a 1. Whether the trial court erred by certifying the class as a mandatory class under T.R. 23(B)(1). 2. Whether Judge McLaughlin’s appointment as special judge was revoked for failure to comply with T.R. 79. 3. Whether the automatic change of venue from Lake County to Newton county served as a wholesale per- emptory challenge of any African-American juror, thus violating the Equal Protection Clause. Amoco presents one issue on appeal. 1. Whether the trial court erred by ho'ding Amoco liable for intentional trespass despite the jury’s verdict. Class Plaintiffs present six issues on appeal which we consolidate and restate as: 1. Whether the trial court erred by failing to find Amoco liable on the nuisance claim. 2. Whether the trial court erred by dismissing 301 un- named class members for failing to respond to a dis- covery questionnaire. 3. Whether the trial court erred by excluding evidence of the class members’ fear and anxiety, and evidence of fires and explosions at the Amoco refinery. 4. Whether the trial court erred by ordering independent medical examinations of unnamed class members and by precluding the testimony of those who did not sub- mit to these examinations. DISCUSSION I. Intervenors’ Claims A. Challenges to the Class Certification Intervenors first claim that the trial court erred when it certified the class as a mandatory class action under T.R. 23(B)(1) for two reasons. First, they argue that the court erred because the class action did not meet the requirements of T.R. 23(B\(1) and, secondly, the court violated Interve- nors’ due process rights by failing to provide them notice of the class certification hearing and failing to hold a hearing on the certification of the class. Both claims challenge, though in different ways, the validity of the mandatory class. Amoco makes two arguments as well, arguing that -= ee App. 18a the class was properly certified as a T.R. 23(B)(1) manda- tory class, and that the Intervenors waived this issue be- cause class certification determinations are final and ap- pealable interlocutory orders that must be appealed at the time of the order. We agree that the Intervenors have waived any challenge to the class certification, but for a dif- ferent reason. We decline to ground our holding on the sole premise that class certification orders are final and appealable inter- locutory orders, because it is not clear after our supreme court’s decision in Berry v. Huffman, 643 N.E.2d 327 (Ind. 1994) whether class certification orders are final and ap- pealable orders at the present time. Amoco relies on Ameri- can Cyanamid Co. v. Stephen, 600 N.E.2d 1387 (Ind.Ct.App. 1992), trans. denied, for the proposition that certification orders are final and appealable orders. Ameri- can Cyanamid, in stating that certification orders are final and appealable, relied or this court’s opinion in Gulf Oil Corp. v. McManus, 173 ‘ad.App. 147, 363 N.E.2d 223 (1977). In Gulf Oil, we held that class certification orders were final and appealable because they disposed of a dis- ‘inct and definite branch of the litigation. /d. 363 N.E.2d at 227. Cases following Gulf Oil,° including American Cy- anamid, all followed the same reasoning: certification or- ders are final and appealable because they dispose of a dis- tinct and definite branch of the litigation. In Berry, our supreme court explicitly held that the definite-and distinct branch doctrine had been superseded and that interlocutory orders were final only when expressly certified as final and appealable by the trial judge. Berry, 643 N.E.2d at 329. While Berry did not involve a class cer- tification order, its broad abrogation of the distinct branch doctrine undercuts the original rationale for deeming it a final order. CSX Transp., Inc. v. Clark, 646 N.E.2d 1003 (Ind.Ct.App.1995), written after Berry, dealt with an inter- © Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780 (Ind. Ct. App.1988), reh'g denied, CSX Transp., Inc. v. Rabold, 593 N.E.2d 1277 (Ind. Ct. App. 1992), trans. denied, CSX Transp., Inc. v. Clark, 646 N.E. 2d 1003 (ind. Ct. App. 1995); ConAgra v. Far- rington, 635 N.E.2d 1137 (Ind. Ct. App. 1994), reh'g denied. App. 19a locutory appeal from a conditional class certification with- out even discussing the propriety of the appeal in light o/ Berry. Though we agree with the reasoning in Gulf Oil that Class certification hearings and orders are the only “trial” to be had on the issue of class certification and therefore should be final and appealable, we are constrained by Berry from simply so holding. Notwithstanding this, we hold that the Intervenors have clearly waived these challenges to the class certification. Waiver is the “‘intentional relinquishment or aban- donment of a known rig*t or privilege.’” State v. Owings, 622 N.E.2d 948, 952 (Ind.1993) (quoting Phillips v. State, 543 N.E.2d 646, 648 (Ind.Ct.App.1989)). A party may waive a right by word or deed. /d. A party may also waive a constitutional nght. Marshall v. State, 254 Ind. 156, 258 N.E.2d 628, 631 (1970), reh’g denied. “Due process rights are subject to waiver.” Town of Speedway v. Harris, 169 Ind.App. 100, 346 N.E.2d 646, 653 (1976). A waiver of a constitutional right, such as Intervenors’ due process claim, must be voluntarily, intelligently, and knowingly made. /d. At the time of the class certification order on January 23, 1992, class certification orders were clearly final and appealable interlocutory orders. See American Cyanamid Co. v. Stephen, 600 N.E.2d 1387 (Ind.Ct.App. 1992), trans. denied. Intervenors knew that they were required to imme- diately appeal the order, as reflected by the praecipe they filed on March 25, 1992. They forewent their right to appeal this issue by then failing to file the record or further pursue their appeal at that time. Following this, the Intervenors fully participated in the trial, joining the Class Plaintiffs,’ with their attorney serving as co-counsel. Intervenors now attempt to rely on the fortuitous decision in Berry to gain a second chance to appeal this issue. Berry was handed down on November 30, 1994, after the present appeal had been commenced and more than two years after the class certifi- cation. We need not allow Intervenors a second chance at an issue that they had previously declined to pursue. By de- ” One of the Intervenors, Henry Cormelius, was made a named class representative. App. 20a clining to exercise their known right to immediately appeal the class certification and electing to fully participate in the proceedings, the Intervenors waived any objections to the certification of the class. We, therefore, hold that Interve- nors’ challenge to the propriety of the class and their due process challenge of the class were waived. B. Challenge of Judge McLaughlin Intervenors claim that Special Judge McLaughlin did not appear and qualify as required by Ind. Trial Rule 79(5) and therefore his actions, specifically the class certification, are void. T.R. 79(5) required that a special judge appear and qualify within twenty days of his or her appointment. Judge McLaughlin was appointed on June 10, 1991, but nowhere in the record or the chronological case summary does Judge McLaughlin appear and qualify as the special judge. It is clear that immediately after his appointment, Judge McLaughlin assumed control of this suit and acted as the special judge.* While it is true that Intervenors promptly objected to the Judge’s appointment upon being brought into the suit by the class certification, their claim is merely a different attempt to once again challenge the class certifica- tion. We say this because class certification is the only rul- ing they challenge, and because, unlike the situation in Taylor v. State, 507 N.E.2d 978 (Ind.1987), Judge McLaughlin was succeeded by an admittedly qualified judge who tried the case. As noted above, waiver is the intentional relinquish- ment of a known right. State v. Owings, 622 N.E.2d 948, 952 (Ind. 1993). The only harm that Intervenors claim is the certi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1125%3A1. Public record. Not legal advice.