DeFunis v. Odegaard , 84 Wash. 2d 617 ( 1974 )

Hamilton, J.

— In DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169 (1973), the minority admissions policy of the law school of the University of Washington was challenged upon equal protection grounds. We upheld the policy. Marco DeFunis, Jr. (hereafter referred to as plaintiff), sought review of our decision by the United States Supreme Court. Plaintiff’s petition for certiorari was granted. Following submission of the cause, the Supreme Court determined that the controversy as between the parties had become moot, vacated our judgment, and remanded the cause to this court. The per curiam opinion rendered by the Supreme Court on April 23, 1974, reads in part as follows:

Because the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. Ill of the Constitution, consider the substantive constitutional issues tendered by the parties. Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such proceedings as by that Court may be deemed appropriate.

(Footnote omitted. Italics ours.) DeFunis v. Odegaard, 416 U.S. 312, 40 L. Ed. 2d 164, 170-71, 94 S. Ct. 1704 (1974).

The mandate of the Supreme Court dated June 26, 1974, as amended by order of the court on June 24, 1974, in operative part, provides:

And Whereas, in the 1973 Term, the said cause came on to be heard before the Supreme Court Of The United States on the said transcript of record, and was argued by counsel:

On Consideration Whereof, it was ordered and adjudged on April 23, 1974, by this Court that the judgment of the Supreme Court of Washington be vacated, and that this case be remanded to the Supreme Court of the State of Washington for such' proceedings as by that Court may be deemed appropriate.

Now, Therefore, The Cause Is Remanded to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and laws of the United States, the said writ notwithstanding.

In the interim, between the rendition of the opinion and the mandate of the Supreme Court, plaintiff moved in this court to designate this case as a class action and to reinstate the Superior Court judgment from which the original appeal was taken. Defendants in turn moved to reinstate the judgment of this court.

We perceive two questions arising out of these motions. First, does there exist a proper basis upon which to reinstate this case as a class action? Second, what disposition of this case should this court make in light of the opinion and mandate of the Supreme Court?

Before resolving these questions, it is appropriate to briefly summarize the relevant background facts.

In 1971, 1,601 applicants sought admission as first-year students at the University of Washington School of Law. Only 150 places were available for the incoming first-year class. Because of the attrition factor, some 330 were ultimately invited, of which 36 were minority group applicants with 18 of that group subsequently enrolling. Plaintiff as one of the 1,601 applicants was among the some 1,271 applicants denied admission. On his own behalf, and not as representative of any other person or class of persons, he instituted this suit in the Superior Court for King County challenging the university’s minority admissions policy. He contended that, pursuant to the designated admissions policy, minority applicants with lesser qualifications than he were accorded admission preference thereby erecting a violation of the equal protection clauses of our state and federal constitutions. A 3-day trial in Superior Court ensued at the conclusion of which the trial judge on September 22, 1971, ruled in plaintiff’s favor and directed that plaintiff be admitted to the law school.

The defendants promptly complied with the Superior Court order, and plaintiff commenced his studies as a law student. Subsequently, the defendants filed a notice of appeal to this court.

On March 8, 1973, we issued our opinion reversing the trial court and holding that “the minority admissions policy of the law school, and the denial by the law school of admission to plaintiff, violate neither the equal protection clause of the fourteenth amendment to the United States Constitution nor article 1, section 12 of the Washington State Constitution.” DeFunis v. Odegaard, 82 Wn.2d 11, 37, 507 P.2d 1169 (1973). On May 16, 1973, we denied plaintiff’s petition for rehearing and on May 24, 1973, plaintiff applied for a stay pending review of our decision by the Supreme Court of the United States. Mr. Justice Douglas of the Supreme Court granted the stay and plaintiff continued with his legal education. On February 26, 1974, the matter was argued before the Supreme Court and submitted.

During the course of oral argument before the Supreme Court, counsel for both parties, in response to questions from the bench, advised the court that plaintiff had registered, or was in the process of registering, for his final quarter in law school. Counsel for defendants also assured the court that regardless of the outcome in this proceeding his registration would not be abrogated or his graduation and receipt of his degree in anywise affected assuming he successfully completed the last quarter. Also, in response to a question from the bench, counsel for plaintiff advised the court that this was not a class action. With these assurances before it, the Supreme Court reached its conclusion of mootness upon the basis that “[t]he controversy between the parties has thus clearly ceased to be ‘definite and concrete’ and no longer ‘touch [es] the legal relations of parties having adverse legal interests.’ ” 416 U.S. 312, 40 L. Ed. 2d 164, 169, 94 S. Ct. 1704 (1974), citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461, 1008 A.L.R. 1000 (1937). Having so concluded, the Supreme Court disclaimed authority to reach the merits, vacated our judgment, and remanded the cause to us for such further proceedings as we deemed appropriate.

All assurances concerning plaintiff’s standing in the law school upon which the Supreme Court relied in reaching its disposition have come to pass. Plaintiff has successfully completed his final quarter, graduated, received his juris doctorate degree, and has applied for and has undoubtedly taken the Washington State Bar Examination on the same footing as any applicant with like qualifications. Upon successful completion of his bar examination, and certification to that effect by the Board of Governors of the Washington State Bar Association, plaintiff will be entitled to admission as a bona fide member of the bar of this state.¹

Despite these now factual realities, plaintiff contends by his motion and in oral argument that this court should, for the first time in this protracted litigation, convert this case into a class action for the benefit of all persons in situations similar to his and all persons claiming to be excluded from the law school of the University of Washington by reason of preferences flowing to less qualified minorities under defendant’s admissions policy. In conjunction with and as a part of his motion, plaintiff requests that we prescribe the manner in which notice shall be given to members of the class and, after such notice, rehear, reconsider, and overrule our original decision thereby affirming the initial judgment of the Superior Court.

We deny plaintiff’s motion, thus answering the first question in the negative.

Paralleling Fed. R. Civ. P. 23(a), CR 23(a) succinctly sets forth the basic parameters for permissible class actions in the courts of the state of Washington. The rule provides:

Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(Italics ours.)

CR 23(c) (1) then requires:

(1) As soon as practicable after the commencement of an action' brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

Class actions are specialized types of suits, and as a general rule must be brought and maintained in strict conformity with the requirements of CR 23.

In evaluating the applicability of CR 23 (a) (4), the prerequisite that the interests of a purported class be fairly and adequately represented, one of the essential factors to be considered is the presence or absence of adversity within the asserted class. Conflicting or antagonistic interests among members of the alleged class in the subject matter of the litigation, necessitating a determination of priorities between class members, may render a class action an improper vehicle for seeking vindication of a given right. Anderson v. Moorer, 372 F.2d 747 (5th Cir. 1967); 7 C. Wright & A. Miller, Federal Practice and Procedure 638 (1972).

It may well be that at the outset of this litigation plaintiff could have declared and satisfied the trial court that he was an impartial representative of a class consisting of those applicants for admission to the law school who, like himself, were denied admission due to the operation and effect of the minority admissions policy. Consideration being given, however, to the number of applicants seeking admission, the limited available places, and the delicate and necessarily individualized selective'process, it could well be that plaintiff considered himself, or could have otherwise been considered, a competitor within rather than a representative of the class. Certainly, had plaintiff introduced this as a class action, the defendants- would have been entitled to have the internal membership interests as well as the breadth and scope of the class explored and, if necessary, defined,.and limited, as early in the litigation as practicable pursuant to CR 23(c)(1). Nevertheless, and for whatever the reason, plaintiff understandably elected to pursue this action on his own behalf, rather than as a class action, up to and through the United States Supreme Court. To convert the suit to a class action at this late stage tends to contravene CR 23(c) (1), disparage defendants’ right to have an early definition and identification of the class, and projects practical and immeasurable uncertainties as to the present membership and size of the class as well as the relief which could be afforded. Such belated conversions to class actions are not favored. Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971).

In a sense, his motion at this time amounts, in effect, to a request for a substitution of parties and a relitigation of the issues with respect to the substitutes, seemingly upon the basis of the record as it now stands before this court. This we do not deem appropriate.

In any event, plaintiff’s successful entrance into law school and the completion of his studies has virtually removed him from his proposed class as a real party in interest. At this point in time, his interest on behalf of the class he expounds has become virtually academic, and any other class he would purport to represent, i.e., applicants who had been admitted to and remained in law school pursuant to court order, would be small indeed. His contention that the procedure under which he was admitted and retained in law school somehow stigmatizes him is ephemeral, for the fact is that once in school he earned his grades and his degree by virtue of his intellectual capacity and diligent effort and not by virtue of any court decree. With his degree in hand, he can rightfully and proudly stand on an equal footing with every member of his graduating class.

Plaintiff’s alternative motion to reinstate the judgment of the Superior Court and defendants’ motion to reinstate the judgment of this court raises, on the surface at least, a more perplexing issue in light of the Supreme Court disposition.

At the outset, it is to be noted that, whatever else may have been the intent and purpose of the Supreme Court in vacating our judgment and remanding the cause to this court for further proceedings, as distinguished from simply dismissing the appeal on grounds of mootness, the Supreme Court’s order had the distinct effect of allowing, without question, the plaintiff to remain in and graduate from law school. Such may have well been an underlying consideration for the action taken by the majority view, particularly in light of the fears expressed in the dissenting opinion per Mr. Justice Brennan.

Be that as it may, however, it would appear as a general proposition that when an appellate court determines that, because of mootness it lacks constitutional authority to rule upon a case, it no longer possesses jurisdiction to function upon the subject matter or litigants involved in that cause of action. Logically, then, it would appear more appropriate for an appellate court in that position to simply dismiss the appeal.

Nevertheless, it appears to be well recognized that the Supreme Court does indeed exercise the authority to vacate and remand moot causes for further proceedings. See R. Stem & E. Gressman, Supreme Court Practice § 18.3 (4th ed. 1969); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 273 (2d ed. R. Wolfson & P. Kurland 1951). Numerous cases passed upon by the Supreme Court appear to indicate that this type of disposition is a relatively standard procedure. See, e.g., Garvin v. Cochran, 371 U.S. 27, 9 L. Ed. 2d 4, 83 S. Ct. 122 (1962); Oil Workers Local 8-6 v. Missouri, 361 U.S. 363, 4 L. Ed. 2d 373, 80 S. Ct. 391 (1960); Riley v. Teamsters Local 633, 336 U.S. 930, 93 L. Ed. 1091, 69 S. Ct. 737 (1949); Schenley Distilling Corp. v. Anderson, 333 U.S. 878, 92 L. Ed. 1154, 68 S. Ct. 914 (1948); Dyer v. City Council, 333 U.S. 825, 92 L. Ed. 1111, 68 S. Ct. 450 (1948); Natural Milk Producers Ass’n v. San Francisco, 317 U.S. 423, 87 L. Ed. 375, 63 S. Ct. 359 (1943); Washington ex rel. Columbia Broadcasting Co. v. Superior Court, 310 U.S. 613, 84 L. Ed. 1389, 60 S. Ct. 1085 (1940); Florida ex rel. Hardware Mut. Cas. Co. v. Knott, 308 U.S. 507, 84 L. Ed. 434, 60 S. Ct. 72 (1939). See generally Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U. Pa. L. Rev. 125 (1946); Note, Mootness on Appeal in the Supreme Court, 83 Harv. L. Rev. 1672 (1970); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U. Pa. L. Rev. 772 (1955).

Utilization by the Supreme Court on this issue of mootness procedure has had a rather interesting development. As a general matter, the constitutional power of a court to decide a contention presented on appeal does not define a constitutional duty. There is latitude in appellate courts to develop doctrines of judicial administration that permit a court to decline decision though not preclude it by a jurisdictional bar from consideration of the matter. See, e.g., Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969); Alton & S. Ry. v. International Ass’n of Machinists, 463 F.2d 872 (D.C. Cir. 1972). When dealing with the lower federal courts, then, the Supreme Court has exercised its discretionary appellate supervisory power to reverse and remand decisions that are moot, rather than simply dismissing the appeals, upon two primary theories: (1) whenever in its opinion justice requires it, the court has asserted that it has the authority to deal with the rights of the parties as they stood at the commencement of the suit; see South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 36 L. Ed. 712, 12 S. Ct. 921 (1892); Mills v. Green, 159 U.S. 651, 40 L. Ed. 293, 16 S. Ct. 132 (1895); United States v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 239 U.S. 466, 60 L. Ed. 387, 36 S. Ct. 212 (1916); Berry v. Davis, 242 U.S. 468, 61 L. Ed. 441, 37 S. Ct. 208 (1917); Board of Pub. Util. Comm’rs v. Compania General de Tabacos de Filipinas, 249 U.S. 425, 63 L. Ed. 687, 39 S. Ct. 332 (1919); Commercial Cable Co. v. Burleson, 250 U.S. 360, 63 L. Ed. 1030, 39 S. Ct. 512 (1919); Heitmuller v. Stokes, 256 U.S. 359, 65 L. Ed. 990, 41 S. Ct. 522 (1921); and, (2) whenever mere dismissal of the appeal would leave a lower appellate determination still in force,, notwithstanding the basis therefor has. disappeared, the court will dispose of the “whole case,” not. merely the appellate proceeding which brought the case to the court. See United States v. The Peggy, 5 U.S. (1 Cranch) 103 (1801); Brownlow v. Schwartz, 261 U.S. 216, 67 L. Ed. 620, 43 S. Ct. 263 (1923); Walling v. James V. Reuter, Inc., 321 U.S. 671, 88 L. Ed. 1001, 64 S. Ct. 826 (1944).

Our research has indicated that the application of these federal vacation and remand theories was initially applied to moot cases arising from state appellate courts in the case of Allen & Reed, Inc. v. Presbrey, 280 U.S. 518, 74 L. Ed. 588, 50 S. Ct. 66 (1929), despite the court’s earlier practice of simply dismissing the appeal from the state appellate court’s decision. Codlin v. Kohlhausen, 181 U.S. 151, 45 L. Ed. 793, 21 S. Ct. 584 (1901); American Book Co. v. Kansas ex rel. Nichols, 193 U.S. 49, 48 L. Ed. 613, 24 S. Ct. 394 (1904). As a matter of practice, application of this procedure to moot cases from state appellate courts has become a relatively standard disposition by the Supreme Court, although the reasons or rationale for doing so have never been fully explained.²

Regardless of the reasons for its action, the fact remains that the Supreme Court has remanded the cause to this court for-such further proceedings as. we deem appropriate. We turn then for some guidance to the actions of other state appellate courts subsequent to the vacation' and remand'of a moot casé by the Supreme Court. In this vein, we- note that it is not unusual for those courts to treat the case similarly to that of their initial consideration, and to reaffirm their prior opinion. See, e.g., Garvin v. Cochran, 135 So. 2d 746 (Fla. 1961) (writ of habeas corpus denied without opinion), 371 U.S. 27, 9 L. Ed. 2d 4, 83 S. Ct. 123 (1962.) (moot — vacated and remanded), 138 So. 2d 337 (Fla. 1962) (habeas corpus denied without opinion); Natural Milk Producers Ass’n v. San Francisco, 20 Cal. 2d 101, 124 P.2d 25 (1942) (aff’d), 317 U.S. 423, 87 L. Ed. 375, 63 S. Ct. 359 (1943) (moot — vacated and remanded), 24 Cal. 2d 122, 148 P.2d 377 (1944) (because plaintiffs advanced the same arguments as previously, the court affirmed the views expressed in its previous opinion); State ex rel. Columbia Broadcasting Co. v. Superior Court, 1 Wn.2d 379, 96 P.2d 248 (1939) (writ of appeal denied), 310 U.S. 613, 84 L. Ed. 1389, 60 S. Ct. 1085 (1940) (moot — vacated and remanded), 5 Wn.2d 711, 105 P.2d 70 (1940) (motion to vacate judgment granted, but motion to withdraw opinion denied). See also Comment, Disposition of Moot Cases by the United States Supreme Court, 23 U. Chi. L. Rev. 77, 93 (1955). We also recognize the doctrine developed by some state appellate courts that stands as an exception to the rule of dismissal of appeals in cases that have become moot. Simply stated, the doctrine permits the state appellate court to continue an appeal in existence, notwithstanding mootness of the controversy, when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a “continuing” or “recurring” controversy, and “public interest” in the controversy. See, e.g., Huffman v. Alexander, 197 Ore. 283, 251 P.2d 87, 253 P.2d 289 (1953); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (1952); Pallas v. Johnson, 100 Colo. 449, 68 P.2d 559, 110 A.L.R. 1403 (1937); Annot., Public interest as ground for refusal to dismiss an appeal, where question has become moot, or dismissal is sought by one or both parties, 132A.L.R. 1185 (1941).

We have quite consistently held that the fact that an issue is moot does not divest this court of jurisdiction to decide it. We will retain an appeal and decide issues, even though moot, if they present matters of substantial public interest, particularly where final determination of the issue is essential in guiding the conduct of public officials. Deaconess Hosp. v. State Highway Comm’n, 66 Wn.2d 378, 403 P.2d 54 (1965); National Elec. Contractor’s Ass’n v. Seattle School Dist. 1, 66 Wn.2d 14, 400 P.2d 778 (1965); State ex rel. Yakima Amusement Co. v. Yakima County, 192 Wash. 179, 73 P.2d 759 (1937). See also Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 442 P.2d 967 (1968).

Inasmuch as the major question presented herein is whether the law school may, in consonance with the equal protection provisions of our state and federal constitutions, consider the racial or ethnic backgrounds of applicants as one factor in the selection of students, we consider this case to fall within that category of moot cases presenting a substantial issue of broad public import. For this court not to give a determinative ruling on this question would breach our obligation to the public and our duty to the public officials involved in our system of higher education. Having fully considered the contentions of the parties when the cause was initially before us and, being of the same mind, we accordingly reinstate and reaffirm our decision and judgment in this case. DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169 (1973).

Noting that the Supreme Court itself recognized that “as a matter of Washington state law it appears that this case would be saved from mootness,” due to the public interest, DeFunis v. Odegaard, 416 U.S. 312, 40 L. Ed. 2d 164, 169, 94 S. Ct. 1704 (1974), and that “there is no reason to suppose that a subsequent case attacking those procedures [minority admissions policy] will not come with relative speed to this Court, now that the Supreme Court of Washington has spoken,” DeFunis v. Odegaard, 416 U.S. 312, 40 L. Ed. 2d 164, 170, 94 S. Ct. 1704 (1974), we deem that our conclusion comports with and lies within the parameters of the Supreme Court’s mandate.

Defendants’ motion to reinstate the original judgment of this court in this cause is therefore granted.

Stafford and Utter, JJ., and Tuttle, J. Pro Tern., concur.

1 Since the drafting of this opinion, plaintiff has successfully completed the bar examination and been duly admitted to the practice of law in the state of Washington.

2 Aside from the equitable theories advanced in support of the practice, the Supreme Court may consider 28 U.S.C. § 2106 affords statutory authority for such action. It provides:

The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of-such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.