*1 Holton, W. and Donald SANUITA Casimir Appellants, HOD CARRIERS LABORER’S AND
COMMON AMERICA, UNION OF 341, Appellee. LOCAL
No. 502.
Supreme Court of Alaska.
May 21, 1965.
pared signature. for his This verification signed required as and was by followed duly a notarization executed. Below and to left of the notarization typed: there was “HARTLIEB and RADER Attorneys for Plaintiff BY:- Gordon W. Hartlieb” signature No had been affixed on the line Holton, and Donald W. Casimir Sanuita provided. per. pro. July Likewise filed on Benkert, Benkert, of Groh & G. Ronald parently concurrently filing the’ appellee. Anchorage, for complaint, was a Notice and a For Motion Injunction, Preliminary both of which NESBETT, J.,C. and DIMOND Before signed by Gordon W. Hartlieb of WITZ, and RABINO JJ. Rader, Attorneys Hartlieb and for Plain- tiff. Also on filed the same a date were NESBETT, Chief Justice. number of affidavits mo- complaint requesting injunctive re- The tion, including by one E.R. McFarland. signed by appellee’s lief not in this case was requirements The Alaska’s Civil Rule attorney, contrary requirements 11 have been embodied in Rule 11 of the Civil Rule II-.1 Federal Rules Civil Procedure since point Appellants’ first is that 'adoption prior of those rules and to that sign complaint deprived failure to 24,2 Equity in Federal 21 and Rules jurisdiction. court of requiring signature coun complaint, The record discloses a sel, overlying purpose of the rule has temporary praying restraining for order by good been to insure of counsel faith relief holding strictly all them for accountable creating for disturbances in the union hall allegations complaint.3 contained by appellee, July maintained was filed on fully plainly purpose This be seems to signed immedi- present wording set out in the of the rule. ately prayer by for after the R. E. secretary-treasurer McFarland as sign For counsel the failure of Following signa- that, lee pleading, McFarland’s provides may union. “it the rule typewritten pre- ture was verification be as sham and action stricken false 1. Civ.R. or is vidual least port the best that he has read the attorney stricken as sham and false and the ac- ed stated. “Every pleading delay. belief there purpose it; one signed an name, * * * constitutes a certificate states and that attorney attorney If his with the intent whose knowledge, pleading pertinent part: shall be good ground it is not record in his pleading; address rule, party represent- signature is not information, signed it interposed to defeat shall be may signed of an by indi- sup- him be 2. 2 3. Goodwin Film & Camera Co. v. Eastman Wheeler Kodak 1915) ; F.Supp. 225, [2] scandalous serted.” violation tion. subjected Moore, (2d had not been served. may proceed Co., ed. Similar United States Corp. of this rule Federal Practice 222 F. appropriate disciplinary action indecent matter (E.D.N.Y.1938). American as though may attorney may ex rel. Foster Eor a Sur. be taken para. (2d is plead- wilful 11.01 Cir. ac- in- be if matter, timity pass on the shall not pleading had we though proceed appeal.5 it the first time on consider [Emphasis It will been served.” ours.] wording leaves above be noted that that, Appellants’ point next al failure any sanction for application of *3 though complaint signed by the was E.R. of the discretion pleading to the sign a secretary-treasurer Ap- McFarland as judge. pellee Common Laborer’s and Hod Carriers Indemnity Holley v. Globe Coal Co. America, Local was no Union of there plead- striking the the court held Co.4 allegation authority to that McFarland had sound discretion within the was appellee. so act for that over- court, other than no reason but since The answer is that the absence of de- the appeared for the failure of sight by appellants McFarland’s contradiction answer, the original sign its to fendant authority sign complaint, signa- his to the refusing its discretion did not abuse capacity ture in his officer amended answer. the first to strike allegation author- union was a sufficient complaint re- us the the case before ity atten- under the circumstances.6 Our incidents a series of in some detail counted any evidence not been invited to purportedly acted to in which produced would show at the trial which prop- meetings, destroy disrupt union union authority did not that McFarland appellee destroy erty, the effectiveness complaint. sign the to libel and slander and commit local union Appellants Kassly Undertaking cite Co. Al- local. against officials of proposition the Flexible Co.7 signed complaint was not though the suit would be dismissed for failure Preliminary Injunc- counsel, For a Motion plaintiff his affiant to set out the facts of complaint, tion, same date as filed authority agent. is that this as an The fact mentioned recounting the incidents opposite appellants’ repre- case held form, signed complaint was in abstract suit would “nof’ be dis- sentation —that the counsel. ground missed advanced. counsel’s not contended that It Appellants argue next the court or complaint willful sign the failure to granting injunctive erred in relief. place oversight. A than an 'anything other complaint Appel alleged As has been stated the signature. prepared for such appellants, numerous acts of which it was attention not draw the trial court’s lants did union, sign com claimed caused harm to of counsel to to the failure complaint committing they such as: of violence within move that acts plaint nor did hall, comply disrupting meetings, the union union failure to be stricken oppor- during creating trouble and confusion work trial court had rule. Since ganized persons (4th tbat See association F.2d Cir. except F.Supp. (S.D. party, Legon, re- made a to the extent also In re N.Y.1949). quired to show party court. desires to raise an When State, Sons, Inc. v. 5. Merl F. Thomas legal any issue as to the existence of (Alaska 1964); Schender P.2d capacity any party party or the Robertson, P.2d line v. authority be sued or of a sue or 1964); (Alaska Lumbermens Mut. Gas. representa- party or in a to sue be sued 387 P.2d Cas. Co. v. Continental capacity, by specific shall do tive he so 1963); Pollastrine v. Sever averment, negative which shall include (Alaska 1962). ance, supporting particulars pe- as are such 9(a) pleader’s culiarly states: 6. Civil. knowl- within the Capacity. necessary “(a) edge.” is not It party capacity or of a to sue aver Inc., Brown v. Music authority party or the be sued (Alaska 1961). representative ca- sued sue or be Ill.App. 653, pacity legal N.E.2d 621 an or- 7.313 existence of calls, attempts lawsuits filing adequate numerous to obtain union, attempting physically local acts. union, in harm an officer of the addition Appellants next contend that opinion. those acts mentioned earlier judgment herein is void because service complaint these In addition to the verified proposed Fact, Findings Conclusions supported by allegations six affidavits. ap Judgment of Law and was not made on heading appellants argue first Under this pellants. they As a result claim to have allege that since the did not illegally deprived right been irrepara- causing the acts asserted were day period Civil Rule 78(b) to a five within injury, grant
ble
it was error to
“serve
a written detailed statement
*4
relief.
objections.”
complaint
paragraph
XXIV the
al-
appellants
The
not
fact
is that
were
harm,
leged
irreputable
damage
: “That
copies
proposed
served with
Find-
the
plain-
injury
and be done to
and
will follow
appar-
ings,
Judgment
and
and
Conclusions
and
de-
tiff unless the acts
conduct of the
ently
judgment
did not learn
until
the
complained of are en-
fendants above
signed.
after it had been
joined.”
.
r..
hand, appellants
the other
have not
On
showing
they
made a
of how
have been
argue
Appellants
that
there is
prejudiced by
judgment as
the terms
the
“irreputable”
and that
such word as
they
it read and how
would
moved
liberty
place
it an
court is not at
modify
they
it
had
ac-
if
been served
be
law. We
interpretation not known to the
cording
rule.
paragraph
wording of this
lieve that
pleader in
plain enough
it
that the
makes
provisions
judgment
In its main
en-
understood
allege
would be
joins
tended to
and
appellants
being
from
on the local
“irrep
by
alleging
calls;
average
reader to be
premises except during
union
work
harm,
injury”, and
damage
arable
and
premises they
requires that
not
while on
transcribing “irreparable” as
disturbance;
in
any
they
error
be en-
create
“irreputable”
not
to obscure
sufficient
joined
using
of-
obscene and other
pleader’s
meaning.
premises
true
language
fensive
on the
and
orderly
they
man-
conduct themselves in an
injunctive relief
argued
next
It
physical
vio-
ner and refrain from acts
improper
an ade-
because there was
any person
premises.
lence toward
support
quate remedy
Argument
in
law.
prior occasions
of this claim is that on two
appears
nothing unreasonable
There
to be
appellee
existing
had availed itself of
judgment
and
on its face
about
adequate remedy
and
caused
at law
had
resulting
prejudice
shown
have not
lants
pellants
punished
similar acts.
to be
appellee
comply with
from failure of
78(a).
situation
In a similar fact
Civil Rule
Appellants’ argument
falls of
9Kelly
Briggs
we said:
in
weight.
allegations
in
own
The
contained
“Non-compliance with subdivisions
affidavits were
the verified
and
in it-
does not
(a)
(b) of Rule 78
relief if es
and
sufficient to
judgment
require
self
us to reverse
the court
tablished to the satisfaction of
it
set
previous
below
order
to be
aside.
any
and
belied the effectiveness of
herein,
specified
78(b)
the time
served within
8. Civ.R.
states:
require
may
thereafter
the court
days
“(b) Objections.
aft-
Within
attorneys
appear
before
interested
any
er service of
of the documents men-
pre-
sign
it,
may
as
the document
or it
(a),
party
tioned
subdivision
by
par-
pared
for the successful
counsel
serve
written detailed statement
by
ty
modified
the court.”
or as
objections
any
such document and
objections
9.
Sys.,
1963),
(2d
ground
320 F.2d
939
the somewhat
Cir.
related
Crosby
aff’d,
(2d
1964);
equity
enjoin
publication
331
not
F.2d 297
Cir.
will
483,
(2d
authority
F.2d
v. Bradstreet
312
485
slander. There
considerable
denied,
Cir.),
911,
injunction
improp
373 U.S.
effect that an
cert.
83
is an
1300,
publication
(1963).
remedy against
Rosi
er
'205 any Adopting does approach Since the record not disclose a similar this court exceptions permit enjoin- Bailey Independent which would in v. Fairbanks School language, of slanderous the lower Dist.9 stated page 529: prohibiting language court’s “slanderous” “Although questions before this improper light was also in of these author- court are appel- not clear because ities.7 comply Supreme lants failed to with question Now to return to the the ma- Court 11(a) (5), Rule we will decide jority’s of this court’s construction case the issues we believe to * * prior late rules. this by appellant There are decisions of have been raised willingness court which it has evinced a recently More in the case of In re Mac-k Supreme apply provisions Court ay10 page this court stated one its provides Rule 52. Rule 52 that: opinion: designed “These rules are facili- “[Respondent petitioned justice. tate advance business and rehearing separate for a nine They dispensed relaxed or with be grounds. respondent’s brief does adherence this strict any grounds not deal with these de- surprise injus- to them will work ignores entirely. tail and some of them tice.” However, we shall' discuss six example Perhaps outstanding of this grounds which we deem to have suf- dispense prior willingness with ficient our considera- merit to warrant appellate compliance regard to strict tion.” Lapham v. Town of the case of rules which nn page Haines is stated at 377: where it There are other instances (cid:127) necessity court has relaxed strict “Appellants filed no statement points with appellate in connection this rules: Steward adherence to its by Supreme Court Rule 9 required City Anchorage, 391 P.2d. v. (e), specification of er- nor does their Sandal, ; (Alaska Clay 1964) 11(a) comply Rule with rors (Alaska 1962); Dickerson v. : appeal on disposing “We are Geiermann, to he the main issue what consider we ; Franke, 364 P.2d 1962) Edwards v. parties recognized by in their both *7 1961). (Alaska shutting briefs, namely, off whether language of this pertinent is the Also supply by appellee of water Wheeler Con- appearing Orbeck v. court wrongful act.” applica- equity is not LMRDA of interfered to tliat that if “The fact 402(o), 411(a) enjoin defamatory publica- §§ ble. See 29 U.S.O.A. threatened Assuming (Cum.Supp.1964).' deprived (2), 412 would be tions the defendant by jury un- right members were trial which to provisions nothing ion, legal in the there is him in a ac- to would be available Congress intend- frequently to that act indicate as been referred to tion has jurisdiction equitable refusing thereun- ground to exclusive re- ed vest courts, see Charles in the federal der lief.” Courtney, U.S. Box Dowd Co. v. 7.Appellants assert also lower L.Ed.2d jurisdiction court to them lacked jurisdiction had lower court Therefore the jurisdiction contending has been subject of this action. matter over provisions pre-empted virtue 1962). (Alaska Labor-Management Reporting 8. of 1959 and the Labor Disclosure Act Management 1962). 9. Relations Act 1947. January 30, (Alaska, Opinion No. record discloses question time in members therefore, appears, union and it pages struction Co.11where 782-83 it I. AS TO JURISDICTION that: stated specification Under their appel- of errors is not inclined to cut “This off court lants assert the : tion as respects propriate had decisions of dication contained sufficient merit to warrant approach counsel and are issues same dix), I am from the lants have For the reasons stated Although rd.”12 would result would work to rights of error some failure on the ample precedent would comply with the alluded issues were discussed in this decision previously indicated. apparent I majority’s upon concur [Footnote omitted.] also of modify adequately raised the issues I I am of the the above authorities appellate review because of this court are their merits.13 The above upon surprise or attempting to obtain this on the face adequately presented appellants are without the view that under the failure countenancing free rules, part opinion (see appen- conclude that these majority opinion. separate opinion herein, particularly injustice adjudicate if to do so In all other issues the reco litigant I dissent injunc- plain adju- court well as in tend that: pre-empted authority tion as National Labor Relations Board has grant, by reason of the fact that Under their jurisdiction, by The court tions ants from entering the union hall Taft that: Government has been plaint is for relief in a matter which “The COMPLAINT “(b) There exists in the court no [******] “(a) “The court grant Hartley Acts; ¡M> the trial court was The sole to who the relief pre-empted ignored through and National Labor Rela- summary erred in argument, appellants to restrain the defend- either statute or prayer prayed; the fact that enactment of the failing face be barred from over the by the Federal prays of the com- estopped argument, to dismiss for relief the fact it ques- Rule, con- union halls. The trial court had no au- APPENDIX thority. I prop- The issues which consider to be erly before this which the ma- [******]
jority has declined to decide
estopped
will be treated
The court is
from considera-
separately
primarily
with
reference
action which embraces the
parties’
prayed herein, by
briefs.
reason of the
(Alaska 1964).
commenting
11.
207
proposition ap-
general
Hartley,
of this
enacting the Taft
that in
fact
following authorities:
pellants cite the
the Fed-
acts
L.M.R.D.A.
N.L.R.A.
brief,
tention
diction
ner :
lack of
Appellee answers
state:
who
of decisions
eral Government
by leaving the State
jurisdiction.”
defendants are
Subsequently at
using
activity
state
protected
Youngdahl
is well to note at
vate
are not
II.
times herein there was available
ical
“The court
recognition
“Appellant also
taking
.
property,
AS TO
well-being
SLANDER
courts have no
**
profane language,
suggesting that their
virtue of
not,
place
points
the trial
to the fact
concerning who
*.
erred
enter a union
disruptive
Rainfair,
again
THE
appellants’ assertion
on union
not members of
pages 25 and
Certainly defendants
the federal
pre-empted
threatening
the NLRB.”
contends that our
others is
court had
reiterate
power to
ENJOINING
that at all of the
appeal, appellants
failing
courts
point that
Inc.,
smashing pri-
nature
man-
following premises.
hall, there-
activity in
may, and
enactments.
26 of their
the field
355 U.S.
federally
their
without
Local
phys-
give
juris-
as to
con-
It
OF
answered
issue of
what are the
hand,
is not limited to
out the assistance of counsel. On
faced with the formidable task of
to this court
v. United
“Oil
2d
ment
Eng’r
v. B. & C. Insulation
Cir.
N.E.2d
Am.Jur.
City
Esskay
Appellants’
Co. v.
163,
' injunction is an im- “7. Because “2. Because acted in vio- remedy rights there proper exists lation of the defendants remedy adequate law speedy under and DUE and PROCESS *» EQUAL PROTECTION OF THE LAW clauses of both State and Feder- summary argument and their Under al Constitutions.” appellants follows: argument contend as complained argument crimi- In their appellants “That the acts state the municipal following regards nal under both offenses Labor-Manage- law, and, plaintiff Reporting ment state therefore and Disclosure Act of speedy 1959: at all times a 'had available
'adequate remedy at law. provided “It that there shall be freedom appellants Kwass v. In and restrain and molestation of the erally refused.’ “ ‘Equitable jurisdiction support cite the Kersey, of this assaults, batterys, ” general W.Va. person authorities: 497, proposition insults 81 S.E. gen- appellants’ speech, by jury.” of an straint “It seems obvious that [******] speech the union. Constitutional and assembly, without re- abridges herein their infringes right right granting of free of trial 237, (1954); 2d A.L.R.2d support In quoted of the above language ; 131, Injunctions (1959) §§ Am.Jur. appellants cite Orloff Angeles v. Los Turf Club, Angeles Orloff v. Los Turf 30 Cal. Club, 110, 180 321, Cal.2d 171A.L.R. 2d 180 P.2d A.L.R. 913 (1947). Note also that immediately (1947); City Liberty of New Orleans v. quoted above the language appellants cite Shop, 157 La. 101 So. 40 Montgomery Retail, Ward & Co. v. United (1924). A.L.R. 1136 Department Wholesale & Employees, Store .Appellee in its brief answers 400 Ill. 79 N.E.2d (1948), which regards contentions to the issue of en- case extensively deals question with the joining crimes, arguing injunctions commission of infringement speech.. of free part: Subsequently appellants state: “Furthermore, even if some of the de- “It is clear that the granting of an fendants’ acts were of a criminal na- injunction herein infringes appellants’ ture, prevent that would not an in- right speech of free abridges junction, prosecute for to each of these right jury.” trial violations multiplicity would entail a support appellants again above ^lawsuits.” cite the Orloff (Note: Appellants case. of the above cites also cite Caputo, Salzhandler v. 316 F.2d Alper Vegas Ass’n, v. Las Motel 74 Nev. 445 (2d Cir.), denied, cert. 375 U.S. (1958); State v. (1963), Robertson, 63 N.M. 313 P.2d case deals right speech the LMRDA 1959.) IV. AS TO THE OF ENJOINING Appellee makes no reference FREE to this is- SPEECH sue of free in its brief. specification In their of errors assert that : Upon the basis of the foregoing I con- “The court lacked cluded that adequately pre- had
matter of the actions taken: sented these issues for review [*] [*] [*] [*] merits.