Shangreaux v. Westby
281 N.W.2d 590
S.D.
1979
Check Treatment

*1 SHANGREAUX, Appellant, Davrine WESTBY, Secretary, Depart-

Dr. Orville Services, ment of State of South Social Dakota, capacity in his official and his Agents, Assigns and in Of- Successors

fice, Respondent.

No. 12523. Supreme Dakota. Court

Argued April July Decided

5Q1 HENDERSON, Justice.

PARTIES parties in this action involved Shangreaux (Shangreaux)

Davrine and Dr. Westby, Secretary, Department Orville Services, Social State South Dakota (State).

ACTION appeal denying

This is an from an order Shangreaux’s motion for certification as a dismissing complaint. her class action and We affirm.

FACTS Dependent

Aid to Families with Children (AFDC) Shangreaux’s sole source of in- 1978, failed re- January come. she for that month. On ceive her warrant $250 that because January 13 she was advised duplicate her check had been lost or stolen sixty days from warrant would be issued original origi- warrant. Her the date of the 3, January nal was dated warrant emergency from the sought assistance She Affairs; she received a Bureau of Indian food. purchase fifteen dollar order for rent, pay her Fearing eviction for failure to sought legal she advice. February action was filed

This day Shangreaux alleged sixty de- duplicate re- lay issuing AFDC warrants 3:05:07:01, promulgated by quired by ARSD Auditor, violated federal the State provisions and the So- state constitutional pro- 3:05:07:01 Security cial Act. ARSD vides: shall be is- duplicate warrants

Before destroyed, or sued for warrants lost requested by the stop payment shall be duplicate employee agency issued under all warrants shall be Bonnet, Dako- Yvette M. Hall War South following conditions: Batesland, Services, Legal ta with Rebecca requested by (1) stop payment A shall Remerowski, Janowitz and Anita M. agency; employee Services, Mission, Legal Dakota on brief, appellant. for no (2) be issued payroll A shall warrant days the date than ten after Gen., sooner Godtland, Atty. Janice C. Asst. dupli- for the affidavit Pierre, issuance and after V. Meierhen- respondent; Mark auditor; state Gen., Pierre, with the ry, cate has been filed Atty. on the brief. (3) 1611; payroll Warrants other than Civil 3A Moore’s Federal § Practice shall be no sixty days also, Herr, issued sooner than Bottum See 19.07-1[3]. after issuance. only S.D. 162 N.W.2d 880 It is joinder when the of a is not feasible After received her that the court must “determine whether in warrant, hearing there was a on the motion equity good conscience the action for certification as a class action. The mo- among it, *3 proceed parties should the before tion was denied complaint and the dis- dismissed, person or should be the absent missed as moot. being regarded indispensable.” thus as 15-6-19(b). nugget, SDCL In a ISSUES the trial joined court should have the State Auditor 1. Was the granting of the motion to but did not do so. This was error it but proper dismiss join because of the failure to require does not reversal of this case. The the State Auditor? We hold that it was obligated joinder trial court was to order not. though this instance even appellant the 2. Did the trial court abuse its discretion joinder never moved for of the State Audi- by denying Shangreaux’s motion for certifir tor. cation as a class action? We hold that it did not. Shangreaux received her DECISION warrant after the suit was commenced but hearing question

The threshold before a on whether the before us is class granting whether the should be of the motion to dis- certified. Class action and condi join miss because of the tional class action failure to status relieve cries of State Auditor mootness proper. principles was because of the enunci 119, ated in Bartley, Kremens v. 431 U.S. 97 challenging In constitutionality 1709, (1977); S.Ct. 52 L.Ed.2d 184 East Tex rule, this Shangreaux administrative chose 395, Freight Rodriguez, as Motor v. 431 U.S. Department to sue the of Social Services. 1891, (1977); 97 S.Ct. 52 L.Ed.2d 453 Franks Although department this is involved with Co., Transportation v. Bowman 424 U.S. AFDC, the administration of it has no au- 747, 1251, 96 (1976); S.Ct. 47 L.Ed.2d 444 thority to alter a promulgated by rule Iowa, 393, 553, 419 Sosna 95 S.Ct. 42 U.S. State Auditor. (1975); Pugh, L.Ed.2d 532 Gerstein v. 420 this, Despite join the failure to 103, 854, (1975); U.S. 95 S.Ct. 43 L.Ed.2d 54 State Auditor appellant’s was not fatal to Indianapolis Jacobs, School Comm’rs v. 420 case and it was error to dismiss on this U.S. 95 S.Ct. 43 L.Ed.2d 74 basis. State’s motion to dismiss for claim, however, Shangreaux’s governed nonjoinder brought of the State Auditor general principles mootness because she 15-6-19(a) SDCL play. apparent into It is prerequisites failed to meet the of SDCL the State Auditor fits the description 15-6-23(a). Consequently, receipt of the 6—19(a)(2)(i),making SDCL him a 15— duplicate warrant made her action moot. just adjudication. needed for a At In order to obtain a certification of class point this the trial court must ascertain pursuant 15-6-23(c)(l), action to SDCL subject whether the auditor is to service of representative pur- of the must show process joinder and venue and whether his 15-6-23(a) to suant SDCL that: deprive subject will the court of matter (1) joinder the class is so numerous that jurisdiction. Miller, Wright & Federal impracticable, of all members is Practice and Procedure: Civil 1611. In § (2) questions there are of law or fact case, joinder was feasible. The statute class, common to the joinder; directs the court to order the lan guage mandatory and the (3) repre- court has no the claims or defenses of the 15-6-19(a)(2); discretion. Wright SDCL parties typical sentative of the Miller, & Federal class, Practice and Procedure: claims or of the defenses and will discovery, decision affect sum

(4) representative parties fairly will adequately protect mary strategies. interests See judgment and trial If, 3B Federal Practice 23.50. Moore’s § however, applied trial court the criteria addition, representative must meet 23(a) (b) the facts of SDCL 15-6-23(b). prerequisite in Be- one SDCL 15-6— determining her case in whether action cause failed structure 15-6-23(a), action, we within need not may case SDCL be as a class its maintained 15-6-23(b). consider SDCL great must be re determination accorded Corp., spect. Wright v. Stone Container 15-6-23(a) is Basic to the fact SDCL supra. Federal Practice 23.74 3B Moore’s repre there must a class and the may cautions some instances it be de “[i]n sentative must be a member of that class. permit discovery sirable to relevant before her class as “all Shangreaux defined AFDC action, deciding whether allow a class recipients residing in the State of South Dakota,” 21,632 AFDC particularly party opposing indicated when *4 in were recipients South Dakota members. likely class is more to have access to action relating to information the size and nature a Shangreaux While is member of of the class.” no need to alleged We see class, this is not sufficient under class of a apply it because the lack of even here 15-6-23(a). encompass It is far too SDCL showing per minimal of a class 15-6— SDCL ing people and Those overbroad. affected 23(a)(1) addition, to she failed and by recipients are those ARSD 3:05:07:01 dis any discovery procedures use under our have, reason, who not received some statutes, covery upon which are available 15-6-23(a)(l) re their warrants. SDCL permit and dis motion to the court which quires that there least some be at evidence members; filed. covery responsive pleading is before of the number of class SDCL through 15-6-37. 23(a)(3) requires repre that 15-6-26 SDCL class See SDCL 15-6— there in presented sentative demonstrate that are other We that under facts hold griev members of the class with similar in case, trial did not err this court 3B Federal ances. See Moore’s Practice denying certify the appellant’s motion to 23.05[3]; Wright v. Stone Container class action. 1975). Corp., (8th F.2d Cir. Shan- The judgment is affirmed. greaux identify person, failed to even one herself, other than who had not an received FOSHEIM, JJ., concur. DUNN and check. class cannot AFDC A consist of even phantom claimants. Without a mini J., MORGAN, J., WOLLMAN, C. and effect, to showing Shangreaux mal part. concur and dissent in part in prerequisites could not meet the of SDCL 23(a). 15-6— WOLLMAN, (concurring in Chief Justice urges Shangreaux that certifi part). part, dissenting in granted cation should have been condition opinion that agree majority I with * 15-6-23(c)(l) in ally under to SDCL order aas join to the State Auditor failure showing allow her to data obtain statistical case. appellant’s not fatal to was supposed of number Morgan’s analysis and join I in Justice We are that SDCL 15-6- issued. aware is- of action proposed disposition the class 23(c)(1) leaves to discretion of the trial sue, this time I would not at except that time to make court the in which its deter merits of opinion regarding the any offer mination on whether the class action is to rule. Consequently, timing sixty-day be maintained.

* An order 15-6-23(c)(l) says: be so whether it is to maintained.. SDCL conditional, may section be under this practicable As as soon after the com- may deci- before the be altered or amended brought of mencement action, an action as a class merits, supplied) (emphasis sion on the determine court shall order

MORGAN, (concurring plaintiff’s and, Justice part, typical in claim is of class dissenting part). moreover, in that, of the because fact as a recipient, continuing plaintiff’s AFDC inter- disposition While concur with the I of the est in the outcome lawsuit likewise join, first as to failure I specifically issue continuing, it be assumed she can will disposition dissent from the of the second prosecute the claim the best interest of issue. the class. majority disregards blithely The SDCL determination the size of the class 15-6-23(b) in determining is a mathematical calculation based on in- failed to structure her case within SDCL solely knowledge formation within the 15-6-23(a) because the class claimed is far department the defendant or the defendant too encompassing and overbroad. SDCL state both. I auditor or would reverse and 15-6-23(b) must be looked to first to deter- remand to the trial court with directions to mine applicable what limitations are certify the set a conditionally class rea- define Under SDCL 15-6- plaintiff sonable timetable for ascertain 23(b)(2), injunctive where declaratory re- there, necessary information to delineate the lief sought, necessity is no to define ruling, class. In a similar the United States the class within the same narrow limita- Pennsylvania District Court in stated: tions as would be appropriate under SDCL 15-6-23(b)(3) requires which I defining notice to do feel as mem- includ- bers ing “public applicants of the class. The all assistance purpose this law- may suit is not to seek damages 'personal recipients” overly . broad. . . redress, challenge If, but rather to the consti- in the context the issues raised in *5 tutionality of an administrative rule litigation, and to suggest the defendants can obtain declaratory injunctive relief un- narrowing pro- reason for further the 23(b)(2). der Rule posed class, they may move to divide the proposed into pursuant subclasses reality, In the class includes the ADC 23(c)(4) Rule of the Federal of Rules Civil recipients from month-to-month whose war Procedure. mails, rants are lost in the U.S. stolen or misplaced. This McLaughlin Wohlgemuth, would constitute an aver F.Supp. v. 398 age percentage 21,000 of plus recipients. the (E.D.Pa.1975). 274-75 The Third Cir- 21,000 plus While potential are plain Appeals all cuit Court of affirmed this action tiffs, only those who presently awaiting stating: “We find no abuse of discretion in reissue or those who will in the future be the district court’s determination to defer required to await reissue would constitute final the scope decision on of the class until I difficulty class. see no in defining a disposition appeal.” McLaugh- after of this class in this manner. As stated Rice v. lin Wohlgemuth, v. 535 F.2d n.l at City Philadelphia, (E.D.Pa. of F.R.D. (3rd 1976). 251-252 Cir. 1974): The is alternative for this court to con- Defining consisting a class as of all exceptions sider that to the mootness persons who have been will be affected issue are present, here as we have in other by charged the conduct to the defendants vein, appears cases. it me that that entirely is appropriate only injunc- where plaintiff issue raised is of tive or is declaratory sought. relief In- public e., importance, pub i. it involves a deed, principal beneficiaries of an in- right affecting portion lic a substantial junctive decree likely would seem to be reasonably citizenry, capable which is those class rights members whose have repetition of future but will not sub yet not been violated. ject review; appellate that the direct 66 F.R.D. at 20. requires issue an authoritative determina As for the remaining qualifications, guidance public tion for future it is questions officers; clear that the petitioner law fact are that has col Also, common to importance named lateral interest sufficient adequately pub represent it will con although underlying lic interest

troversy had ended[.]* are obvi- people involved in this case they would ously in dire financial straits not qualify system to for AFDC. For the sixty days require they have to wait for their when state reissuance of warrant only days have to wait ten

employees hy- their pay reissuance of pocritical. justicia- I think the case alternative,

ble but I would under either prefer to consider it as a class action rather excep- on open any

than doors the mootness tion. MORAN, Respondent,

Lorraine AREA RAPID CITY SCHOOL DISTRICT 51-4, AND MEADE NO. PENNINGTON COUNTIES, Appellant.

No. 12452. Dakota. Supreme Court Argued Feb. 1979. July 18, Decided Rapid City quo granting warranto in Tice # * Order writ of Journal v.