dissenting:
I dissent. Initially, I take issue with what I consider to be an unduly narrow view of the phrase “questions of fact or law common to the class,” which is part of the second prerequisite for the maintenance of a class action under the statute (Ill. Rev. Stat. 1977, ch. 110, par. 57.2).
In sanctioning the dismissal of the class action, the majority relies primarily on the trial court’s determination that, in light of our prior decisions in People v. McCabe (1971), 49 Ill. 2d 338, and People v. Meyerowitz (1975), 61 Ill. 2d 200, there were no common questions of law or fact to be litigated. Asserting that the common questions (the unconstitutionality of the Uniform Narcotic Drug Act as it applied to marijuana and the right of those convicted to have their convictions expunged and their fines and costs refunded) predominate over any individual questions, the majority intimates that this action could have been maintained as a class action if the common questions had not been previously resolved. Thus, it is evident that the majority reads the common-question requirement to mean unresolved questions of fact or law common to the class. In effect, then, plaintiff’s claim is denied class action status merely because another individual has already sought and obtained the relief which plaintiff presently seeks on behalf of the class. In my view, this is an unjust result and one that would allow any potential member of any potential class, regardless of motive, to abort an otherwise valid class action against an alleged wrongdoer.
Here, each potential class member would have the same claim, i.e., expungment of his conviction and the return of any fines and costs paid. The class action would make the right of relief and recovery available to individual class members who, to a large extent, could not otherwise obtain it because they would be uninformed of its availability and because of the expense of a separate lawsuit. (See Gordon, The Common Question Class Suit Under the Federal Rules and in Illinois, 42 Ill. L. Rev. 518, 519-20 (1947).) Furthermore, the decision to exercise the common right to relief and recovery would foster a multiplicity of suits, thus defeating another purpose of class action litigation.
Not only does the majority preclude class action status, but the unperceived import of the majority’s reasoning will be to deny the right of others similarly situated to join as parties plaintiff. The statutory provision governing joinder of plaintiffs (Ill. Rev. Stat. 1977, ch. 110, par. 23), like the class action statute, requires that there be a “common question of law or fact.” Because all common questions have been previously resolved, the majority’s interpretation (that any common questions must be as yet unresolved) would thus also serve to bar the use of joinder.
Additionally, the majority cites the trial court’s determination that the class action would not result in any increased efficiency to the court or to the litigants in the adjudication of the claims. It finds that such determination was within the trial court’s broad discretionary powers. I disagree. Because it granted defendant’s motion to dismiss on the pleadings, the trial court had before it no evidence by which to arrive at such determination. In its order, the court summarily stated, “It is difficult to perceive how proceeding in a class action would in any way relieve the court or litigants of any burden or time expended ***.” It is my opinion that the plaintiff should have been permitted to have a hearing and to present evidence on this matter. For this reason, I feel that the trial court abused its discretion, and the determination which resulted from that abuse should not serve as a basis for the majority’s holding here.
In sum, I believe that plaintiff has satisfied the common-question requirement and that the trial court abused its discretion in granting defendant’s motion to dismiss. I would therefore reverse the trial court’s dismissal of the class action and remand the cause to that court for further proceedings.
MR. JUSTICE CLARK joins in this dissent.