Alesna v. Rice

• Decision Date: 25 February 1947
• Docket Number: Civ. No. 769.
• Citation: 69 F. Supp. 897
• Parties: ALESNA et al. v. RICE et al.
• Court: U.S. District Court — District of Hawaii

69 F. Supp. 897

ALESNA et al. v. RICE et al.

Civ. No. 769.

District Court, Territory of Hawaii.

February 25, 1947.

Harriet Bouslog, of Honolulu, Hawaii, and Meyer C. Symonds, of San Francisco, Cal., for plaintiffs.

C. Nils Tavares Atty. Gen., and Michiro Watanabe, Deputy Atty. Gen., of Honolulu, Hawaii, for defendants.

McLAUGHLIN, District Judge.

The plaintiffs bring this action under the Civil Rights Act, 28 U.S.C.A. § 41(14), alleging upon four different grounds the deprivation under color of Territorial law of rights guaranteed to them by the Constitution and laws of the United States.

Upon application and in accord with 28 U.S.C.A. § 381, Rule 65, Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c, a restraining order was issued ex parte. An order to show cause was returnable upon the tenth day thereafter, and as the argument was not concluded the restraining order was extended under the rule an additional ten days.

The question — and the only question now before the Court — is whether or not, pending a hearing upon the merits, a temporary injunction should issue.

The case arises out of the recent Territorial-wide strike of all sugar plantation workers. Upon the Island of Kauai the Lihue Plantation Company, Limited, applied in a proceeding in equity to the Judge of the Territorial Circuit Court for the Fifth Judicial Circuit for injunctive relief against certain aspects of picketing then being carried on by the unionized strikers. The Territorial Judge issued ex parte a restraining order restricting certain phases of picketing by the defendants in that case. Thereafter the defendants moved to dissolve it as having been issued contrary to the provisions of the Norris-LaGuardia Act, § 1 et seq., 29 U.S.C.A. § 101 et seq. Judge Rice denied the motion but subsequently upon his own motion amended the restraining order which he had previously issued. Insofar as is here pertinent, the restraining order as amended prohibited the defendants from

(a) Engaging in mass picketing on or near company business or residence property for the purpose of preventing, obstructing or interfering with ingress or egress to such property; and

(b) Using more than three pickets at points of ingress to or egress from company property, and directing that at all other points where more than three pickets were used that such pickets should be in motion and, except when passing each other, a distance of ten feet between each picket should be maintained.

The plaintiffs here were indicted upon two counts by the Grand Jury of the Territorial Fifth Circuit Court for criminal contempt of court in that, as alleged in the indictment, they wilfully violated the restraining order

(1) By mass picketing with others on or near company property to prevent, obstruct, and interfere with ingress and egress thereto; and

(2) By picketing with others in groups in excess of three at points of ingress to and egress from company property, and also by failing to keep in motion and by failing to maintain a distance of ten feet between each other.

Thereafter, in a case in the Second Circuit Court arising out of a similar situation upon the Island of Maui, upon a petition for a writ of prohibition, the Territorial Supreme Court was called upon to decide whether or not the Norris-LaGuardia Act applied to the Territorial Circuit Courts. In a decision dated December 4, 1946, the Supreme Court of Hawaii held that that Act did not apply to the Territorial Courts. 37 Hawaii 404. A Petition for Rehearing was denied by that Court on January 23, 1947, 37 Hawaii —, and an appeal has been taken to the Circuit Court of Appeals for the Ninth Circuit.

The plaintiffs came to this Court January 31, 1947, and upon the basis of the allegations contained in the complaint — which included an allegation that the criminal case against plaintiffs was set for plea and trial in the Fifth Circuit Court on February 4, 1947 (now reset for February 26th) — asked ex parte, for an order restraining Judge Rice and the Territorial Attorney General from proceeding with the criminal case in the Fifth Circuit Court until further order of this Court.

Because of the nature of the case, the importance of the questions of law involved, and the facts and circumstances surrounding it, as has been stated, a restraining order issued, but only against the Territorial Attorney General, his deputies and assistants. The defendant Judge and Attorney General were directed to show cause why a preliminary injunction should not issue as prayed for.

In reply, the defendants state that

(1) This Court has no jurisdiction to enjoin Territorial Judge Rice;

(2) The Judge is not a proper party to a suit such as this;

(3) The complaint shows that this Court has no jurisdiction, for this Court cannot enjoin a criminal action pending in a Territorial Court; and

(4) That the complaint shows no grounds for equitable relief.

Plaintiffs, of course, state that defendants' objections are not well taken, and affirmatively assert rights guaranteed to them by the Constitution and laws of the United States are being denied them by the Territory and one of its Courts in that

(a) The Norris-LaGuardia Act does apply to the Territorial Courts, — hence, Judge Rice's amended restraining order was void — the plaintiffs have been indicted for violating a void order of Court, and are being forced to defend themselves against such an indictment in a Court which has already ruled out the Norris-LaGuardia Act and the hands of which on the point are now tied, in any event, by the ruling of the Territorial Supreme Court;

(b) If the Norris-LaGuardia Act does not apply to the Territorial Courts, the same consequences above outlined follow in any event, for it must then be that this Court, the United States District Court for the Territory of Hawaii, has been given by Congress exclusive power in the Territory to issue injunctions in labor dispute cases in conformity with the Norris-La-Guardia Act and hence Judge Rice's restraining order was void;

(c) The laws of the United States grant plaintiffs, members of a union, substantive rights which no Court can restrain in the absence of fraud or violence; that Judge Rice's restraining order is void, for it prohibited the free exercise of, and the indictment based thereon alleges it to have been a criminal offense to have exercised, rights granted to members of a union by United States laws. In brief, it is said plaintiffs are being charged criminally for doing what Congress gave them as members of a union a right to do.

And finally that

(d) Judge Rice's order and the indictment based upon it deprived plaintiffs of rights guaranteed to them by the Constitution in that the right to picket is an exercise of the rights of free speech and of assembly.

Opinion

My answers to the questions presented are:

I. The Norris-LaGuardia Act does not apply — directly — to the Territorial Judiciary.

Although those courts fall squarely within the phrase "Court of the United States" as defined in the Act, 29 U.S.C.A. § 113(d), it is to me satisfactorily clear from the nature of the Territorial Government created by the Organic Act, 48 U.S.C.A. § 491, and the objective sought to be attained by Congress in passing the Norris-LaGuardia Act that it was never meant to apply to the Territorial Courts.

In organizing this Territory, Congress gave to the local government which it created broad domestic powers, and it separated that local government from the operations within the Territory of the Federal Government. Congress gave to the Territory a form of organization more like that of a State than it had previously given to any like area. See People of Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235. Insofar as the Territorial Courts are concerned, Congress itself recognized the distinction between the Territorial Courts and the U. S. District Court for the Territory of Hawaii, 48 U.S.C.A. § 645. As pointed out in Wilder's Steamship Co. v. Hind, 108 F. 113, at pages 115, 116, years ago "The system of courts created by the act for the territory of Hawaii differs radically from the system of courts which Congress had theretofore created for any of the territories. In no other territory has there been a division of jurisdiction between cases which properly belong to courts of the United States and other cases. Congress found in the republic of Hawaii a system of courts already established, whose jurisdiction was complete, and from the highest tribunal of which there was no appeal. To that system congress, by the act, added a district court, conferring upon it the jurisdiction which pertains to the district and circuit courts of the United States, and providing for removing to that court from the Territorial courts causes which under the removal acts were removable from a state court to a court of the United States." See also Yeung v. Territory of Hawaii, 9 Cir., 132 F.2d 374.

There is no intent revealed in either the act or its history which requires that the distinction between the Territorial courts and the Federal Court for the Territory of Hawaii was to be obliterated. Congress on the contrary spoke of an intent not to disturb domestic jurisdiction.

Further, as designed the Norris-LaGuardia Act does not fit the Territorial court system. 29 U.S.C.A. § 110 provides for appeals from the granting or denial of a preliminary injunction to the Circuit Court of Appeals, which in this instance would be the Ninth Circuit Court of Appeals. Such an appeal from the...