, it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials. E. g., Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) ( per curiam), aff'g 263 F.Supp. 327 (M.D.Ala. 1966) (3-judge court); Lynch v. Household Finance Corp., 360 F.Supp. 720 (D.Conn. 1973) (3-judge court); Note, supra, 9 Val.L.Rev. at 391 n. 128; Note, Defendant Class Actions, supra, 91 Harv.L.Rev. at 634. The propriety of certifying a defendant class in this case depends, therefore, on whether Sheriff Lombard's defenses are typical of those of the class, and whether he can adequately protect the interests of the absentee sheriffs.
See also cases cited in Note, F.R.Civ.P. 23: A Defendant Class Action with a Public Official as the Named Representative, 9 ValU.L.Rev. 357 (1975). The cases in which courts have maintained defendant class actions generally involve attempts to enjoin numerous governmental officials from enforcing a statute, e. G., Danforth v. Christian, 351 F.Supp. 287 (W.D.Mo.1972); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff'd per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); or attempts to enjoin numerous business concerns from engaging in extrajudicial activity (e. g. repossession) under color of a statute, e. g., Gibbs v. Titelman, 369 F.Supp. 38 (E.D.Pa.1973); Lynch v. Household Fin. Corp., 360 F.Supp. 720 (D.Conn.1973). It is easy to conceptualize these cases as defendant class actions. Plaintiff's challenge in each case is directed at everyone who derives authority from the statute, not at any particular defendant.
The operation of a prison system, or the reform of a state's correctional programs are highly specialized endeavors, requiring "the sober judgment of experienced correctional personnel". Washington v. Lee (M.D.Ala. 1966) 263 F. Supp. 327, 332, aff'd, Lee v. Washington (1968) 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. This is not a case in which a state statute arbitrarily, and without exception, requires segregation of the races in all facilities of a state penal system, as was the situation in Washington v. Lee, supra.
Fed.R.Civ.P. 23(b)(2). As described in the district court opinion in Lee, the defendant class consisted of all county sheriffs and city and town wardens and jailers in the state of Alabama, and the action sought to enjoin the state's policy of segregating prisoners by race. Washington v. Lee, 263 F.Supp. 327, 328-29 (M.D.Ala. 1966). Because the Advisory Committee Notes to the 1966 amendments do not indicate an intention for the post-1966 rule to limit the types of classes that were held permissible under the pre-1966 rule, Lee provides support for interpreting Rule 23(b)(2) to permit the certification of defendant classes, at least in a bilateral class action seeking injunctive relief against a class of local public officials.
We would have no difficulty in resolving this question as it is presented to us by the parties. We believe that the right to be free from general policies of racial segregation in prison housing and administration was clearly established in the opinions rendered by Judge Johnson in Washington v. Lee, 263 F. Supp. 327 (M.D.Ala. 1966), and the Supreme Court's per curiam affirmance in Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). "A state may not constitutionally require segregation of public facilities."
In this case, however, 82 different hearings would have to be held in the liability phase; no hearing would decide any issue presented in another. The failure to identify a common practice distinguishes this case from Washington v. Lee, 263 F. Supp. 327 (M.D.Ala. 1966), aff'd per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), on which plaintiffs place primary reliance. Washington v. Lee involved a challenge to a single practice — the segregation of the races in the state prisons and the county, city, and town jails in Alabama.
The Supreme Court affirmed per curiam. 263 F. Supp. 327 (N.D.Ala. 1966), aff'd 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam).See Singleton v. Board of Commissioners, 356 F.2d 771 (5th Cir. 1966).
Further, arbitrary racial classifications cannot be condoned just because of the often delicate and sensitive nature of police work. This argument has recently been rejected in a related situation in Washington v. Lee, M.D.Ala. 1966, 263 F. Supp. 327 (three-judge court), aff'd per curiam, 1968, Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. In this action, brought to enjoin the enforcement of Alabama statutes requiring the segregation of inmates in various penal facilities of the state, the defense contended that "the practice of racial segregation in penal facilities is a matter of routine prison security and discipline and is, therefore, not within the scope of permissible inquiry by the courts."
[citing cases]." Washington v. Lee, 263 F. Supp. 327, 331 (M.D.Ala. 1966), aff'd per curiam 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212. The Supreme Court has declared invalid such state prison regulations as those requiring a prisoner's legal documents to be approved by officials before they are to be forwarded to the courts in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034.
The plaintiffs are peculiarly well-suited to bring this action: they are not free from entanglement with the system, nor are they merely anticipating future entanglement. Cf. Rakes v. Coleman, 318 F.Supp. 181, 191 (E.D.Va.1970) (alcoholics challenging penal commitment statute); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff'd, sub nom. Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (former prisoners challenging segregated prison facilities).