of the laws. Second, they argue that the relief is unwise and/or an abuse of remedial-equitable discretion. Third, they argue that this Court was without jurisdiction to enter class wide relief in that there had been no certification of the Bolden action as a class action. Fourth, they argue that a single district court judge lacked the authority to enter the Bolden consent decree.
The plaintiffs request that a three-judge court be convened pursuant to 28 U.S.C.A. § 2281, in that they wish to enjoin the enforcement of a state statute, i.e., 71 P.S. § 251. That statute provides that the Commissioner of the Pennsylvania State Police shall, subject to the approval of the Governor, prescribe the qualifications for membership and retention in the State Police. Plaintiffs argue that the interim selection and promotion criteria set out in the Bolden consent decree are an authoritative interpretation of that statute and so that they, in effect, seek an injunction against the enforcement of a state statute. Alternatively, plaintiffs argue that if the interim criteria set out in the consent decree are inconsistent with the statute then the Bolden decree enjoined a state statute in violation of 28 U.S.C. § 2281 in that the Bolden decree was entered by a single judge.
The relief requested by plaintiffs does not require that this Court convene a three-judge court. The present procedures of the defendants are the result of the order of this Court and a suit seeking an injunction against those procedures is not one which brings into play the policies upon which the three-judge court acts are premised. With respect to plaintiffs' alternative argument, the procedures defendants presently follow, pursuant to the Bolden order, are in no manner inconsistent with the state statute nor did the Bolden action even remotely call the constitutionality of that statute into question. In short, cutting through plaintiffs' semantics, the real issue is the validity of the Bolden consent decree.
The Bolden action was filed as a class action and, in fact, a motion was filed to so certify the action. It is the opinion of this Court that the entry of the consent decree in that action is sufficient certification of the Bolden action, as a class action, under F. R. Civ. P. 23. The decree fully defines the class involved.
The plaintiffs have raised the question of notice. An action brought for injunctive, and ancillary relief from discrimination in employment is properly maintainable as a class action under F. R. Civ. P. 23(b)(2) and does not require notice under F. R. Civ. P. 23(c)(2). Wetzel v. Liberty Mutual Insurance Company, 508 F.2d 239 (3d Cir., 1975). Consequently, it was not necessary that notice of the pendency of the action with the opportunity to opt-out be sent to class members in the Bolden action. Of course, the requirement of F. R. Civ. P. 23(e) that notice of a proposed compromise of a class action shall be given to all members of the class applies to a class action under F. R. Civ. P. 23(b)(2); however, that notice is to be given in such manner as the court directs. In the Bolden action, the consent decree was posted. Moreover individual notice was provided to identifiable members of the class. See Sections (If) and (g) of consent decree. This Court retained jurisdiction over the Bolden action and a dissatisfied class member could and still can seek to intervene and modify the decree. This procedure provided adequate and practical notice in the context of the Bolden lawsuit.
Of course, it is unclear that the plaintiffs, who do not claim to be members of the class in Bolden, have standing to raise an issue of inadequate notice to class members. The plaintiffs in these actions, i.e., the Oburn and Lutz lawsuits, not members of the class in Bolden, do not and cannot cite any authority for the proposition that they were entitled to notice of either the pendency or compromise of the Bolden action. Moreover, as noted above, the Court retains jurisdiction in the Bolden lawsuit and the plaintiffs here may seek to intervene in that action.
Finally, the plaintiffs attack on the class relief awarded by this Court in Bolden reflects a fundamental misunderstanding of the law in this area which is reflected in a number of its arguments before this Court.
In a case of racial discrimination in any sector of our society, the nature of the wrong charged, i.e., a class wrong, dictates class relief.
In Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963), cert. den., 376 U.S. 910, 84 S. Ct. 666, 11 L. Ed. 2d 609 (1964), a case attacking segregated transportation service on carriers, the Court stated:
"We find it unnecessary to determine, however, whether this action was properly brought under Rule 23(a), for whether or not appellants may properly represent all Negroes similarly situated, the decree to which they are entitled is the same. Appellants do not seek the right to use those parts of segregated facilities that have been set aside for use by 'whites only'. They seek the right to use facilities which have been desegregated, that is, which are open to all persons, appellants and others, without regard to race. The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated."
Similarly, in Bolden, the plaintiffs did not merely seek the opportunity to become and remain members of the Pennsylvania State Police as it existed; rather they sought the opportunity to become and remain members of a drastically altered Pennsylvania State Police organization, i.e., an organization that did not discriminate against applicants and members on the basis of race. The plaintiffs were clearly entitled to such relief and class relief was required to secure that right. Indeed, the Court could not and would not have approved a decree that provided for less than class relief. In light of the record in Bolden, the Court could not have, consistent with its obligation under the United States Constitution, ordered less than class relief.
As the Fifth Circuit said in Potts v. Flax, 313 F.2d 284, 289-90 (5th Cir. 1963), a school desegregation case:
"There is at least considerable doubt that relief confined to individual specified Negro children either could be granted or, if granted, could be so limited in its operative effect. By the very nature of the controversy, the attack is on the unconstitutional practice of racial discrimination. Once that is found to exist, the Court must order that it be discontinued. Such a decree, of course, might name the successful plaintiff as the party not to be discriminated against. But that decree may not -- either expressly or impliedly -- affirmatively authorize continued discrimination by reason of race against others. Cf. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161. Moreover, to require a school system to admit the specific successful plaintiff Negro child while others, having no such protection, were required to attend schools in a racially segregated system, would be for the court to contribute actively to the class discrimination proscribed by Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F.2d 491, 499, on rehearing 308 F.2d 491, 503; see also Ross v. Dyer, 5 Cir., 1962, 312 F.2d 191. The effect of this last consideration is to afford additional basis for affirmance. In this light, if it was an error to treat the case as a class suit and enter such a decree, such error, if any, was harmless since the decree for all practical purposes would have been the same had it been confined to the Teal or Flax children."