Reies Lopez Tijerina v. Virgil Henry, 398 U.S. 922 (1970)
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Scribd Government DocsReies Lopez Tijerina v. Virgil Henry, 398 U.S. 922 (1970)
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Scribd Government Docs398 U.S.
922
90 S.Ct. 1718
26 L.Ed.2d 86
Reies Lopez TIJERINA et al.
v.
Virgil HENRY et al.
No. 1776, Misc.
Supreme Court of the United States
May 25, 1970
The appeal is dismissed.
THE CHIEF JUSTICE took no part in the consideration or decision of this
case.
Mr. Justice DOUGLAS, dissenting.
Appellants brought this suit as a class action, claiming to represent a class
'designated as Indo-Hispano, also called Mexican, Mexican-American and
Spanish American, [which is] generally characterized by Spanish surnames,
mixed Indian and Spanish ancestry and * * * Spanish as a primary or maternal
language.'1 The District Court dismissed the complaint as a class action,
holding that appellants' definition of the class was 'too vague to be
meaningful.'2
Class actions are controlled by Rule 23 of the Federal Rules of Civil Procedure.
That Rule does not in terms define a 'class', other than by stating that the class
must be 'so numerous that joinder of all members is impracticable' and that
there must be 'questions of law or fact common to the class.' Certainly those
two prerequisites were satisfied in this case. In addition, however, federal courts
have required that '[t]he members of a class must be capable of definite
identification as being either in or out of it.' Chaffee v. Johnson, D.C., 229
F.Supp. 445, 448. See also Dolgow v. Anderson, D.C., 43 F.R.D. 472, 491;
Weisman v. MCA Inc., D.C., 45 F.R.D. 258, 261; 3B J. Moore, Federal Practice
23.04 (1969).
In my view, the District Court clearly erred in holding that the members of the
class were not sufficiently identifiable. The court relied, for example, on the
fact that 'the complaint is silent as to whether people with some Spanish or
Mexican and Indian ancestors, as well as ancestors who are of some other
extraction, i. e., French, English, Danish, etc., would be included as members of
the class. These considerations make this characteristic so vague as to be
meaningless.' One thing is not vague or uncertain, however, and that is that
those who discriminate against members of this and other minority groups have
little difficulty in isolating the objects of their discrimination. And it is
precisely this discrimination, as alleged by appellants in their complaint, that
presents the 'questions of law or fact common to the class.'
This Court responded to a similar contention regarding lack of an identifiable
class in a different context in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667,
98 L.Ed. 866. There, the petitioner claimed that persons of Mexican descent
were systematically excluded from jury service in violation of the Equal
Protection Clause of the Fourteenth Amendment. The Court held that 'persons
of Mexican descent' constituted a distinct class to which the equal protection
guarantee was applicable. 'Throughout our history differences in race and color
have defined easily identifiable groups which have at times required the aid of
the courts in securing equal treatment under the laws.' Id., at 478, 74 S.Ct. at
670. And the Court held that one method by which the petitioner could satisfy
his burden of proving that persons of Mexican descent constituted a separate
class was by showing the attitude of the community. Id., at 479, 74 S.Ct. at
671.
What the Court said in Hernandez is, I think, pertinent to the question of
establishing the existence of a proper class for a class action under Rule 23.
There can be no dispute that in many parts of the Southwestern United States
persons of Indian and Mexican or Spanish descent are, as a class, subject to
various forms of discrimination. Appellants, as members of that class, brought
this action to prevent the continuance of alleged discriminatory actions taken
against the class. I do not see how it can be seriously contended that this suit is
not a proper class action.3 Indeed, the notes of the Advisory Committee to the
1966 Amendment of Rule 23 state that '[i]llustrative [of class actions properly
brought under Rule 23(b)(2)] are various actions in the civilrights field where a
party is charged with discriminating unlawfully against a class, usually one
whose members are incapable of specific enumeration.'
The District Court also ruled on the merits of appellants' claims, dismissing
their first, third, and fourth causes of action 'with prejudice,' on the ground that
they were based on the Treaty of Guadalupe Hidalgo, and that nothing in that
Treaty conferred to the rights claimed by appellants.4 The third and fourth
causes of action, however, specifically relied on the Thirteenth and Fourteenth
Amendments to the United States Constitution, so that as to them a dismissal
with prejudice seems clearly wrong. The court also noted that there was a lack
of specific facts pleaded in appellants' complaint to support the allegations of
discrimination in the third and fourth causes of action. With regard to
appellants' second cause of action, however, the court held that, because a
cause of action would be stated if suit were brought on behalf of a properly
defined class alleging specific facts, the dismissal should be without prejudice.
That reasoning should also apply to apply to appellant's third and fourth causes
of action.
7
In short, I do not think that the District Court's disposition of appellants'
complaint should in any way prejudice appellants from obtaining a ruling, as
representatives of the Indo-Hispano class, as to the constitutionality under the
Fourteenth Amendment of the discrimination presently claimed in the first,5
third, and fourth causes of action of the complaint in this action.
I would note jurisdiction and put this case down for oral argument.
Appellants also sought to represent a class designated as 'poor,' defined as those
who quality for free legal process under certain New Mexico statutes. The
District Court ruled that this was not an adequate definition of a class.
Appellants do not press a contention of error with regard to this ruling, and I
therefore do not deal with that question.
The District Court also held that appellants had failed to prove that they would
fairly and adequately represent the class. The court did not elaborate the basis
for this holding, nor did it specify what nature of proof it would require to
establish adequate representation. Appellants alleged discrimination against a
distinct cultural minority group, and were themselves nembers of that minority
group.
Adequate representation requires that the interests of the representatives of the
class be compatible with and not antagonistic to the interest of those whom they
purport to represent. See, e. g., Clark v. Thompson, D. C., 206 F.Supp. 539,
542, and cases cited. It is difficulty to see how the District Court could have
concluded that there was any antagonism of interest in preventing
discrimination against the class. 'Racial discrimination is by definition a class
discrimination. If it exists, it applies throughout the entire class.' Hall v.
Werthan Bag Corp., D. C., 251 F.Supp. 184, 186. The District Court's holding
may have been based on its doubt that, as regards the appellants' first cause of
action, all members of the class would agree that failure to provide Spanish
language instruction was a discriminatory action. The burden of affirmatively
proving agreement with the substantive claim on the part of all or a majority of
the members of the class, however, would appear to be a wholly unreasonable
and unnecessary requirement. 'Necessarily, a different situation is presented
where absent class members inform the court of their displeasure with
plaintiff's representation, * * * but the representative party cannot be said to
have an affirmative duty to demonstrate that the whole or a majority of the class
considers his representation adequate. Nor can silence be taken as a sign of
disapproval.' Eisen v. Carlisle & Jacquelin, 2 Cir., 391 F.2d 555, 563. 'A class
action should not be denied merely because every member of the class might
not be enthusiastic about enforcing his rights.' Weinstein, Revision of
Procedure: Some Problems in Class Actions, 9 Buffalo L.Rev. 433, 460 (1960).
3
Maintenance of class actions on behalf of persons of Mexican or Latin descent
was allowed in Mendez v. Westminister School Dist., D. C., 64 F.Supp. 544,
and Gonzales v. Sheely, D. C., 96 F.Supp. 1004.
The fifth cause of action in appellants' complaint, alleging basically the same
discrimination as the third and fourth causes of action, was brought only on
behalf of the 'poor class.' I therefore find it unnecessary to discuss the dismissal
of this cause of action. See n. 1, supra.
I assume that, because appellants' first cause of action rested solely on the
Treaty of Guadalupe Hidalgo, the dismissal of that cause of action 'with
prejudice' would not prevent the bringing of a subsequent action, alleging the
same acts of discrimination, based on the Fourteenth Amendment or other
constitutional provision.
