Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County, the Hon. Harold L. Jensen, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 30, 1979.
James McCabe brought this suit to enforce the holdings of our prior decisions of People v. McCabe (1971), 49 Ill.2d 338, and People v. Meyerowitz (1975), 61 Ill.2d 200, through a class action. (James McCabe is not the same person as the defendant in People v. McCabe.) The Champaign County circuit court dismissed the class action. The appellate court reversed. (57 Ill. App.3d 450.) We granted leave to appeal. The primary issue presented for review is the validity of the trial court's refusal to certify a class action.
James McCabe has alleged that he was convicted and paid a fine under the Illinois Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, pars. 22-1 through 22-49.1). That law, as it related to marijuana, was declared unconstitutional in People v. McCabe (1971), 49 Ill.2d 338. Subsequently, this court ruled that all those convicted under the Act had a right to the expungement of their conviction and the return of any fine money and court costs attributable to those convictions. (People v. Meyerowitz (1975), 61 Ill.2d 200.) McCabe now seeks to bring this action on his own behalf and as a representative "of a class of persons, consisting of persons convicted for violations of the 1969 Illinois Uniform Narcotic Drug Act involving sale, possession or control of marijuana." Though not shown on the face of the pleadings, the briefs, the trial court, and the appellate court considered the class that McCabe purports to represent as being only those persons convicted in Champaign County.
On the defendant's motion, the trial court dismissed McCabe's amended complaint. In a written memorandum the trial court specifically found that the question of law common to the members of the purported class had been decided in People v. McCabe and People v. Meyerowitz. The court also found that a class action would not in any way relieve the court or the litigants of any burden or time expended in resolving the factual questions material to the claimants' right to recover and that the factual questions that would be involved would require the examination of each individual case. Thus the court found that there were no unresolved questions of law or fact common to the members of the class and that maintaining the class action would not result in an increased efficiency in the adjudication of the claims. The court also rejected McCabe's claim that the right to notify each member of the class of his right of expungement and reimbursement was a common question of law or fact which would support a class action. The court noted that McCabe's right, and the right of the other members of the class, was to have the convictions expunged and to recover the fines and costs that had been collected. McCabe and the other members of the purported class would not have a right to have the others who had been convicted under the same statute notified of their right of expungement and recovery.
This action began prior to enactment of the Illinois class action statute (Ill. Rev. Stat. 1977, ch. 110, pars. 57.2 through 57.7). This court has held that since the statute is procedural in nature, it is applicable to pending cases. (Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 337.) The class action statute sets out very clearly the requirements for maintenance of a class action.
"Prerequisites for the maintenance of a class action.
(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy." (Ill. Rev. Stat. 1977, ch. 110, par. 57.2.)
This section of the statute, in essence, codifies the previous holdings of this court as to the prerequisites to the maintenance of a class action. Although the trial court in this case rendered judgment prior to the effective date of the statute, it, nonetheless, bottomed its decision on the absence of certain prerequisites which had been considered essential under the case law of this State, and which have been incorporated in the statute as prerequisites. Under the statute, the proponent of the class action has the burden of establishing these prerequisites and the court must find them present before it can sanction the maintenance of the action as a class action. (Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes (Smith-Hurd Supp. 1978).) Here the trial court specifically found the absence of certain of these ...