Brawner v. Sanders

• Decision Date: 09 September 1966
• Citation: 417 P.2d 1009,244 Or. 302
• Parties: Edward N. BRAWNER, Plaintiff, v. Don H. SANDERS, Judge of the Circuit Court of the State of Oregon for Douglas County, Defendant.
• Court: Oregon Supreme Court

Page 1009

417 P.2d 1009

244 Or. 302

Edward N. BRAWNER, Plaintiff, v. Don H. SANDERS, Judge of the Circuit Court of the State of

Oregon for Douglas County, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted on Demurrer to Alternative Writ July 5, 1966.

Decided Sept. 9, 1966.

William M. Dale, Jr., Portland, argued the cause for defendant. With him on the briefs was A. C. Roll, Roseburg.

Phil Cass, Jr., Eugene, argued the cause for plaintiff. On the brief were Riddlesbarger, Pederson, Brownhill & Young, Eugene.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

GOODWIN, Justice.

This is an original proceeding in mandamus to test the vitality of the rule that '(i)n the absence of an enabling statute, a voluntary association cannot be sued by its association name. It has no legal existence, and the persons composing it must be joined individually * * *.' Kimball v. Lower Columbia Fire Assn., 67 Or., 249, 252, 135 P. 877, 878 (1913).

Edward Brawner filed a complaint in an action at law for damages for personal injuries against Local Union No. 3--436, International Woodworkers of America, AFL-CIO, and Western States Regional Council No. III, International Woodworkers of America, AFL-CIO. The defendants appeared specially and moved to quash the service of summons on the ground that jurisdiction over an unincorporated labor union could not be obtained by service upon its officers of a complaint and summons designating the union as a legal entity. The motion was allowed, and the present proceedings are before us to determine whether unions can be sued in this state as legal entities.

In support of the trial court's ruling, the unions rely upon the Kimball case, supra, and other Oregon decisions, ¹ legislation providing limited relief in equity in certain kinds of labor disputes, ² and the doctrine of separation of powers. The plaintiff-petitioner, on the other hand, marshals the support of modern legal scholars who agree upon the desirability of making trade unions amenable to actions as entities, ³ and cases from other states. ⁴

We are indebted to both counsel for the high quality of their scholarship and for their candor in putting the question before the court. The case comes down to these fundamental questions:

(1) Should labor unions be subject to judicial proceedings as legal entities?

(2) If so, should this end be accomplished by judicial decision?

The first question presents no real problem. We have found no authority defending the old rule as applied to labor unions. Labor unions have come to be regarded by their members, by the courts, and by Congress as legal entities. The old notion that they were voluntary associations in the nature of a joint enterprise is now recognized as an historical curiosity. See, for a comprehensive statement of the modern view, Marshall v. International Longshoremen's & Warehousemen's Union, 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987 (1962).

The United States Supreme Court in United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762 (1922), first pointed the way. While the case is not squarely in point, because it relies in part upon federal statutes, the opinion discusses the pros and cons of holding a union responsible as an entity under the Sherman Antitrust Act. The case holds that a union can be sued in the federal courts despite the absence of a specific statute so providing. Later, in United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202 (1944), the same court elaborated, in connection with the privilege against self-incrimination:

'Structurally and functionally, a labor union is an institution which involves more than the private or personal interests of its members. It represents organized, institutional activity * * *. The union's existence in fact, and for some purposes in law, is as perpetual as that of any corporation, not being dependent upon the life of any member * * *.' 322 U.S. at 701--702, 64 S.Ct. at 1252.

If the matter were before us as a question of first impression, we would, without further discussion, hold that a labor union recognized as such for collective bargaining purposes can sue or be sued either in law or in equity.

The hard question is whether such a rule ought now to be declared judicially. In thirty-seven states, the briefs assert, the matter has been resolved by legislation. But we hold that the question in this state need not await legislative disposition. The old rule was a judge-made rule, and is subject to change by judicial decision within the tradition of the common law. Hungerford v. Portland Sanitarium, etc., 235 Or. 412, 384 P.2d 1009 (1963). If the legislature should see the policy question in a different light, it is free to impose an infinite variety of qualifications, limitations, exceptions, and conditions upon the amenability of labor unions to actions at law.

The strongest argument against law reform by judicial decision is that when a state court changes substantive or procedural law its activity may tend to weaken representative government. See, e.g., Jefferson B. Fordham, Judicial Policy Making at Legislative Expense, 34 Geo.Wash.L.Rev. 829 (1966). Granting the undeniable force of the generality as a restraint upon judicial activism, it is equally true that if the generality were carried to its logical conclusion as an absolute prohibition, the common law would still be exactly what it was in colonial days when parliamentary government was in its infancy.

History teaches that courts as well as parliamentary bodies have always made policy decisions, and the real question is not whether courts should decide policy questions, but when and how they should do so. See Cornelius J. Peck, The Role of the Courts and...