Class Actions-washington Style: a Look at Washington Superior Court Rule 23

• Publication year: 1985
• Citation: Vol. 8 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 3SPRING 1985

Class Actions-Washington Style: A Look at Washington Superior Court Rule 23

Allen K. Easley(fn*)

I. Introduction

This Article focuses on class actions in the Washington State courts. It compares and contrasts the Washington experience with practice under the federal class action rule,(fn1) and places particular emphasis on the differences between state and federal practice.

Not all of Washington's divergences from federal class action practice are commendable. For example, the seemingly common practice of deferring class certification rulings until after the merits of the case are resolved makes the class action device less useful than it could otherwise be(fn2) and raises potential problems with the fairness of the class action process.(fn3) Most of the differences between Washington and federal class action practice, however, reflect positively on Washington's experiences. In contrast to the mixed experience with class actions in the federal courts,(fn4) class actions in Washington seem to be working, and working well. Perhaps, therefore, this Article will serve a useful function, not only for Washington practitioners, but also for federal judges and practitioners who wish to find ways of maximizing the potential of the class action device as a useful procedural tool for resolving complex litigation.

II. Background

Historically, the State of Washington has experimented with at least three different class action rules. In 1854 Washington adopted the so-called Field Code version of the class action rule.(fn5) That provision, for reasons not clear to this author, has never been explicitly repealed, although no modern cases refer to or rely on it.(fn6) In 1960 Washington adopted the language of the then existent federal rule 23,(fn7) under which the federal courts had labored since 1938.(fn8) In 1966 federal rule 23 was amended to eliminate some of its perceived inadequacies,(fn9) and in 1967 the Washington Supreme Court adopted those amendments verbatim in its new Superior Court Civil Rules.(fn10)

Not surprisingly, the Washington courts have indicated that they would look to federal precedents for guidance in construing the Washington class action rule.(fn11) The emphasis, however, should be on the word guidance; the Washington courts do not feel "bound" by federal class action precedents.(fn12) And while divergences from federal precedent are few in number, they illustrate a significantly "looser" view of the class action device than is found in federal practice.(fn13)

III. The Requirements for Class Certification

A class action is maintainable under Washington Superior Court Civil Rule 23 (CR 23) only if all four prerequisites of subdivision (a) are met, along with any one of the alternative requirements of subdivision (b).

A. CR 23(a) Prerequisites

CR 23(a) provides: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.

The requirement of "numerosity" in CR 23(a)(1) is rarely mentioned by the Washington courts. When numerosity is mentioned, it is only discussed in passing. Zimmer v. City of Seattle(fn14) contains the most extensive discussion of numerosity: two short paragraphs conclude that numerosity is satisfied when some potential class members are unidentifiable because joinder of the unidentifiable members is inherently impracticable.(fn15)

The requirement of "typicality" in CR 23(a)(3) has also received little attention from the Washington courts. The lower federal courts have long been divided on the intended meaning and significance of the typicality prerequisite.(fn16) Some federal courts have concluded that the typicality requirement substantially overlaps with the commonality requirement,(fn17) or the adequacy of representation requirement,(fn18) or both.(fn19) Other federal courts have insisted that the typicality requirement must have some meaning independent of the other rule 23(a) requirements, although they have not always agreed on what that meaning should be.(fn20) Washington courts have avoided the problem so far by essentially ignoring the typicality requirement.(fn21)

The "adequacy of representation" requirement of CR 23(a)(4) has received some attention from the Washington courts, but thus far only on a rather superficial level.(fn22) Washington courts, like the federal courts,(fn23) look at the qualifications of both the representative party and the attorney for that party. On the question of qualifications of the attorney representing the class, the Washington court of appeals held in Marquardt v. Fein(fn24) that the attorney must be an experienced and effective representative, must have no interest in the litigation that would potentially conflict with the interests of the class, and must act ethically at all times in representing the class. The court upheld the disqualification of all three attorneys representing a class of defendants in a mortgage foreclosure proceeding. The lead counsel was disqualified because of his representation of other groups with interests that potentially conflicted with the class interests and because his representation of the class to date had been confusing, careless, and unethical.(fn25) The other two attorneys were disqualified for their lack of experience, although the court did not specify what experience would have qualified them to represent the class.(fn26) The court did suggest, however, that the two less experienced attorneys could stay on the case to assist more experienced counsel.(fn27)

On the question of qualifications of the representative party, the Washington appellate courts have spoken twice. In DeFunis v. Odegaard,(fn28) on remand from the United States Supreme Court's determination that plaintiffs reverse discrimination claim was moot,(fn29) the plaintiff sought to re-ignite his claim by seeking class certification.(fn30) The Washington Supreme Court refused certification, in part because of possible conflicts between plaintiff and the class. The court noted that in view of the limited number of seats available in the law school entering class, plaintiff might, at least potentially, become a competitor with the proposed class rather than its representative.(fn31)

The Washington Supreme Court also found that the moot-ness of plaintiffs individual claim removed him from membership in his proposed class and, therefore, that the plaintiff could not adequately represent a group to which he no longer belonged.(fn32) The court admitted, however, that a more timely application for certification might have led to a different result.(fn33) Thus, the court left open the possibility that mere conjecture about future conflicts that might develop between the plaintiff and the class he sought to represent would not alone suffice to defeat class certification.(fn34)

The DeFunis court did not address the possibility that some members of the proposed class might not share the plaintiffs goal of challenging affirmative action.(fn35) However, in Zimmer v. City of Seattle,(fn36) the court of appeals stated explicitly that the possibility that some class members would prefer the challenged statute to be upheld would not preclude class certification.(fn37) Presumably, the possibility of intervention under CR 24 suffices to protect those persons' interests.(fn38)

The Washington courts have focused most of their attention, with respect to the prerequisites for class certification on the "commonality" requirement of CR 23(a)(2). Washington appellate courts have urged trial courts to characterize class action pleadings liberally to find common questions. For example, in Johnson v. Moore,(fn39) one of the more frequently cited class action precedents, the trial court had refused class certification, characterizing the plaintiffs' claim as one for habeas corpus relief, which would require individualized factual determinations of the reasonableness or necessity of detention of each class member.(fn40) The supreme court refocused on plaintiffs' claim for injunctive and declaratory relief, which allowed it to concentrate on the more generalized issue of whether the police can constitutionally detain individuals for an unreasonable period of time without arraignment, thus finding a common question of law.(fn41)

Another example of the attitude of the Washington Supreme Court toward the common-question requirement is found in Brown v. Brown(fn42) in which plaintiffs challenged the defendant city Department of Public Utilities' practice of terminating utility services for disputed arrearages.(fn43) The trial court had found commonality lacking because termination of services might be justified under some factual circumstances but not under others.(fn44) The supreme court again reversed, finding that a common question did exist: whether termination of service based on a disputed unpaid bill was permitted under any circumstances.(fn45) The court concluded that CR 23 should be construed liberally, not restrictively, to avoid multiplicity of...