Appeal from the United States District Court for the Central District of Illinois, Springfield Division, No. 80 C 3280- Richard Mills, Judge.
Posner and Ripple, Circuit Judges, and Campbell, Senior District Judge.*fn* Campbell, Senior District Judge, concurring in part and dissenting in part.
The question for decision is whether classes of defendants are permissible in actions governed by Rule 23(b)(2) of the Federal Rules of Civil Procedure. The district judge said "no," 108 F.R.D. 107 (C.D. Ill. 1985), and we must decide whether he was right.
Following Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970), this court, in White v. Roughton, 530 F.2d 750 (7th Cir. 1976) (per curiam), held that the due process clause of the Fourteenth Amendment requires local welfare departments in Illinois to establish written standards for welfare ("general assistance") eligibility, and notice-and-hearing procedures for the grant or denial of applications for welfare. The White case involved the welfare department of the township of Champaign, and the consent decree that was entered in the wake of our decision (and that we revisited in White v. Roughton, 689 F.2d 118 (7th Cir. 1982)) provided no state-wide relief. A downstate legal-aid bureau, the Land of Lincoln Legal Assistance Foundation, filed the present suit in 1980. The purpose of the suit is to make other welfare departments in Illinois comply with the principles laid down in our 1976 decision. The suit is on behalf of one named plaintiff, Henson, a resident of East Lincoln Township, and every other person in 65 downstate Illinois counties (the counties served by the Foundation) who has been denied due process of law in connection with an application for welfare. The suit is against East Lincoln Township and its welfare supervisor -- they are the named defendants -- plus every other local welfare department (and its supervisor) in the 65 counties that does not receive any state aid. The defendant departments are all what are called "non-receiving" departments; welfare departments that receive state aid are bound by state procedural regulations that comply with the principles of White v. Roughton. Henson believes there are 770 "non-receiving" departments in the 65 counties, and they and their supervisors are the members of the defendant class. The suit seeks only injunctive relief, and the Foundation asked for certification of the defendant class only under subsection (b)(2) of Rule 23.
The Foundation notified each of the 770 departments of the suit, and the district judge allowed it to serve each of them with a deposition on written questions (Fed. R. Civ. P. 30). Most of the 525 departments that answered at least some of the Foundation's questions acknowledged that they were not complying with one or more of the principles announced in White v. Roughton -- at least that is the construction that the Foundation places on their answers and for purposes of this appeal we shall assume it is correct.
The district judge denied the plaintiff's motion under Fed. R. Civ. P. 23(c)(1) to certify the defendant class, on the ground that Rule 23(b)(2) does not permit defendant classes. He certified his ruling for an immediate appeal under 28 U.S.C. § 1292(b), see 108 F.R.D. at 113, and we agreed to hear it. He has stayed all proceedings in the case until we decide the appeal.
Rule 23 provides, so far as is pertinent to this appeal:
(a) 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 interest of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the ...