SANUITA v. COMMON LABORER'S AND HOD CARRIERS UNION

NESBETT, Chief Justice.

The complaint requesting injunctive relief in this case was not signed by appellee's attorney, contrary to the requirements of Civil Rule 11.1

Appellants' first point on appeal is that failure to sign the complaint deprived the court of jurisdiction.

The record discloses that a complaint, praying for a temporary restraining order and injunctive relief against the appellants for creating disturbances in the union hall maintained by appellee, was filed on July 18, 1962. The complaint was signed immediately after the prayer for relief by R.E. McFarland as secretary-treasurer of appellee union. Following McFarland's signature was a typewritten verification prepared for his signature. This verification was signed as required and was followed by a notarization duly executed.

Below and to the left of the notarization there was typed:

No signature had been affixed on the line provided.

Likewise filed on July 18, 1962, and apparently concurrently with the filing of the complaint, was a Notice and a Motion For Preliminary Injunction, both of which were signed by Gordon W. Hartlieb of Hartlieb and Rader, Attorneys for Plaintiff. Also filed on the same date were a number of affidavits in support of the motion, including one by R.E. McFarland.

The requirements of Alaska's Civil Rule 11 have been embodied in Rule 11 of the Federal Rules of Civil Procedure since adoption of those rules and prior to that in Federal Equity Rules 21 and 24.2

In requiring the signature of counsel, the overlying purpose of the rule has been to insure the good faith of counsel by holding them strictly accountable for all allegations contained in the complaint.3 This purpose seems to be fully and plainly set out in the present wording of the rule.

For the failure of counsel to sign a pleading, the rule provides that, "it may be stricken as sham and false and the action may proceed as though the pleading had not been served." [Emphasis ours.] It will be noted that the above wording leaves the application of any sanction for failure to sign a pleading to the discretion of the judge.

In Holley Coal Co. v. Globe Indemnity Co.4 the court held that striking the pleading was within the sound discretion of the court, but since no reason other than oversight appeared for the failure of the defendant to sign its original answer, the court did not abuse its discretion in refusing to strike the first amended answer.

In the case before us the complaint recounted in some detail a series of incidents in which appellants purportedly acted to disrupt union meetings, destroy union property, destroy the effectiveness of appellee local union and commit libel and slander against officials of appellee local. Although the complaint was not signed by counsel, a Motion For Preliminary Injunction, filed on the same date as the complaint, recounting the incidents mentioned in the complaint in abstract form, was signed by counsel.

It is not contended that counsel's failure to sign the complaint was willful or anything other than an oversight. A place was prepared for such signature. Appellants did not draw the trial court's attention to the failure of counsel to sign the complaint nor did they move that the complaint be stricken for failure to comply with the rule. Since the trial court had no opportunity to pass on the matter, we shall not consider it for the first time on appeal.5

Appellants' next point is that, although the complaint was signed by R.E. McFarland as secretary-treasurer of Appellee Common Laborer's and Hod Carriers Union of America, Local 341, there was no allegation that McFarland had authority to so act for that appellee.

The answer is that in the absence of a contradiction by appellants of McFarland's authority to sign the complaint, his signature in his capacity as an officer of the union was a sufficient allegation of authority under the circumstances.6 Our attention has not been invited to any evidence produced at the trial which would show that McFarland did not have authority to sign the complaint.

Appellants cite Kassly Undertaking Co. v. Flexible Co.7 for the proposition that the suit would be dismissed for failure of a plaintiff affiant to set out the facts of his authority as an agent. The fact is that this case held the opposite of appellants' representation — that the suit would "not" be dismissed on the ground advanced.

Appellants next argue that the court erred in granting injunctive relief.

As has been stated the complaint alleged numerous acts of appellants, which it was claimed caused harm to appellee union, such as: committing acts of violence within the union hall, disrupting union meetings, creating trouble and confusion during work calls, filing numerous lawsuits against the local union, and attempting to physically harm an officer of the union, in addition to those acts mentioned earlier in this opinion. In addition to the verified complaint these allegations were supported by six affidavits.

Under this heading appellants argue first that since the complaint did not allege that the acts asserted were causing irreparable injury, it was error to grant injunctive relief.

In paragraph XXIV the complaint alleged: "That irreputable harm, damage and injury will follow and be done to plaintiff unless the acts and conduct of the defendants above complained of are enjoined."

Appellants argue that there is no such word as "irreputable" and that the court is not at liberty to place upon it an interpretation not known to the law. We believe that the wording of this paragraph makes it plain enough that the pleader intended to allege and would be understood by the average reader to be alleging "irreparable harm, damage and injury", and that the error in transcribing "irreparable" as "irreputable" was not sufficient to obscure the pleader's true meaning.

It is next argued that injunctive relief was improper because there was an adequate remedy at law. Argument in support of this claim is that on two prior occasions appellee had availed itself of an existing adequate remedy at law and had caused appellants to be punished for similar acts.

Appellants' argument falls of its own weight. The allegations contained in the verified complaint and affidavits were sufficient to support injunctive relief if established to the satisfaction of the court and belied the effectiveness of any previous attempts to obtain adequate relief from appellants' acts.

Appellants next contend that the judgment herein is void because service of the proposed Findings of Fact, Conclusions of Law and Judgment was not made on appellants. As a result they claim to have been illegally deprived of their right under Civil Rule 78(b) to a five day period within which to "serve a written detailed statement of objections."8

The fact is that appellants were not served with copies of the proposed Findings, Conclusions and Judgment and apparently did not learn of the judgment until after it had been signed.

On the other hand, appellants have not made a showing of how they have been prejudiced by the terms of the judgment as it read and how they would have moved to modify it if they had been served according to the rule.

In its main provisions the judgment enjoins appellants from being on the local union premises except during work calls; requires that while on the premises they not create any disturbance; that they be enjoined from using obscene and other offensive language on the premises and that they conduct themselves in an orderly manner and refrain from acts of physical violence toward any person on the premises.

There appears to be nothing unreasonable about the judgment on its face and appellants have not shown prejudice resulting from failure of appellee to comply with Civil Rule 78(a). In a similar fact situation in Briggs v. Kelly9 we said:

We have declined to attempt to consider and decide the matters concerning free speech mentioned by our colleague in a dissenting opinion for the reason that those matters were not made issues on appeal by appellants' Statement of Points on Appeal as required by Supreme Court Rule 9(e),11 nor were they set out in the Specifications of Error or covered by the Questions Presented for Review and Summary of Argument as required by Supreme Court Rule 11 (a) (5), (6) and (7). They were mentioned only casually or not at all in appellants' main argument and were not briefed by appellee.

The judgment below is affirmed.

RABINOWITZ, Justice (dissenting in part).

I dissent from the majority's refusal to decide the only issues of substance that appellants, without the benefit of counsel, have managed to raise.1

The majority's conception of the issues raised in this appeal has resulted in avoidance of decision upon substantial free speech issues. I am of the opinion that appellants are correct in their assertion that portions of the lower court's permanent injunction infringe upon their rights of free speech under Article I, Section 5 of the Alaska Constitution and the First and Fourteenth Amendments to the United States Constitution.2

The record reflects a protracted history of acrimonious relations between appellants and appellee while appellants were members of appellee union and subsequently during the period in which appellants were attempting to organize a separate rival union. Appellants' activities culminated in appellee's filing this injunction action and the lower court's granting, on April 8, 1964, of a permanent injunction against appellants.

In granting appellee a permanent injunction the lower court in part enjoined appellants, while upon appellee's premises during work call periods,3 from:

These portions of the lower court's permanent injunction are repugnant to appellants' rights of free speech under Article I, Section 5 of the Alaska Constitution, and under the First and Fourteenth Amendments to the United States Constitution. See National Ass'n for the Advancement of Colored People v. Button, 371 U.S. 415, 437-38, 83 S.Ct. 328, 9 L.Ed.2d 405, 420-21 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Parker v. Columbia Broadcasting Sys., 320 F.2d 937, 939 (2d Cir.1963), aff'd, 331 F.2d 297 (2d Cir.1964); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir.), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963). See also Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church, 39 Cal.2d 121, 245 P.2d 481, at page 495 (1952), cert. denied, 345 U.S. 938, 73 S.Ct. 828, 97 L.Ed. 1365 (1953) where the court said:

Under the above portions of the lower court's permanent injunction, appellants now, at the peril of further judicial sanctions, must on their own determine whether their speech is "loud", "boisterous", "obscene", "lewd", "inflammatory", "slanderous", "vulgar", "heckling", "interrupting" or choose to remain silent. It is precisely such a judicially imposed prior restraint upon freedom of speech which is prohibited by both the Alaska and Federal Constitutions. The quoted portions of the permanent injunction should be stricken by this court.

Appellants additionally attack that part of the permanent injunction which purports to enjoin their use of "slanderous" language upon the somewhat related ground that equity will not enjoin the publication of a slander. There is considerable authority to the effect that an injunction is an improper remedy against the publication of a slander or libel. See Dayton v. McGranery, 92 U.S.App.D.C. 24, 201 F.2d 711, 713 (D.C. Cir.1953); American Malting Co. v. Keitel, 209 F. 351, 357 (2d Cir.1913); Birnbaum v. Wilcox-Gay Corp., 17 F.R.D. 133, 139-40 (N.D.Ill. 1953); Marlin Firearms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163, 165-66, 59 L.R.A. 310 (1902). The case of Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees5 is typical of the authorities in this area. At page 48 of its opinion in 79 N.E. 2d, the court said:

Since the record does not disclose any exceptions which would permit the enjoining of slanderous language, the lower court's prohibiting "slanderous" language was also improper in light of these authorities.7

Now to return to the question of the majority's construction of this court's appellate rules. There are prior decisions of this court in which it has evinced a willingness to apply the provisions of Supreme Court Rule 52. Rule 52 provides that:

Perhaps the outstanding example of this court's prior willingness to dispense with strict compliance in regard to its appellate rules is the case of Lapham v. Town of Haines8 where it is stated at page 377:

Adopting a similar approach this court in Bailey v. Fairbanks Independent School Dist.9 stated at page 529:

More recently in the case of In re Mackay10 this court stated at page one of its opinion:

There are other instances in which this court has relaxed the necessity for strict adherence to its appellate rules: Steward v. City of Anchorage, 391 P.2d 730, 732 (Alaska 1964); Clay v. Sandal, 369 P.2d 890, 893 (Alaska 1962); Dickerson v. Geiermann, 368 P.2d 217, 218 (Alaska 1962); Edwards v. Franke, 364 P.2d 60, 62 (Alaska 1961).

Also pertinent is the language of this court appearing in Orbeck v. Wheeler Construction Co.11 where at pages 782-83 it is stated that:

Although I am of the opinion that appellants have adequately raised the issues I have alluded to in this opinion (see appendix), I am also of the view that under the approach of the above authorities this court had ample precedent to conclude that these same issues were adequately presented and contained sufficient merit to warrant adjudication upon their merits.13 The above decisions of this court are particularly appropriate where appellants are without counsel and are attempting to obtain this court's decision upon free speech issues.14

For the reasons stated herein, I dissent from the majority's failure to adjudicate the issues discussed in this separate opinion and would modify the permanent injunction as previously indicated. In all other respects I concur with the majority opinion.

APPENDIX

The issues which I consider to be properly before this court and which the majority has declined to decide will be treated separately with reference primarily to the parties' briefs.

I. AS TO JURISDICTION

Under their specification of errors appellants assert the following:

Under their summary of argument, as well as in their argument, appellants contend that:

Subsequently at pages 25 and 26 of their brief, appellants again reiterate their contention that the trial court had no jurisdiction by virtue of the federal enactments. Appellee answers appellants' assertion as to lack of jurisdiction in the following manner:

II. AS TO THE ENJOINING OF SLANDER

In their points on appeal, appellants state:

Appellants, after repeating this point in their specification of errors, assert the following in their argument:

In support of this general proposition appellants cite the following authorities:

Appellants' contentions in regards to the issue of enjoining libel or slander are not answered by appellee in its brief. Counsel for appellee make the following statement:

Admittedly counsel for appellee was faced with the formidable task of analyzing appellants' brief which was prepared without the assistance of counsel. On the other hand, I am of the opinion that this court is not limited to counsel's conception of what are the pertinent questions presented to this court for review.

III. AS TO ENJOINING THE COMMISSION OF CRIMES

In their points on appeal appellants state:

Under their specification of errors appellants assert that:

Under their summary of argument and argument appellants contend as follows:

In support of this general proposition appellants cite the following authorities:

Appellee in its brief answers appellants' contentions in regards to the issue of enjoining the commission of crimes, arguing in part:

In support of the above appellee cites Alper v. Las Vegas Motel Ass'n, 74 Nev. 135, 325 P.2d 767, 769-70 (1958); State v. Robertson, 63 N.M. 74, 313 P.2d 342, 345 (1957).

IV. AS TO THE ENJOINING OF FREE SPEECH

In their specification of errors appellants assert that:

In their argument appellants state the following in regards to the Labor-Management Reporting and Disclosure Act of 1959:

In support of the above quoted language appellants cite Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 180 P.2d 321, 171 A.L.R. 913 (1947). Note also that immediately above the quoted language appellants cite Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees, 400 Ill. 38, 79 N.E.2d 46, 49 (1948), which case deals extensively with the question of injunctions and infringement of free speech.

Subsequently appellants state:

In support of the above appellants again cite the Orloff case. (Note: Appellants also cite Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963), which case deals with the right of speech under the LMRDA of 1959.)

Appellee makes no reference to this issue of free speech in its brief.

Upon the basis of the foregoing I concluded that appellants had adequately presented these issues for review upon their merits.