Hudgens v. Local 315 Retail, Wholesale, and Dept. Store Union, AFL-CIO

• Decision Date: 07 October 1974
• Docket Number: AFL-CIO,No. 49328,No. 1,49328,1
• Citation: 210 S.E.2d 821,133 Ga.App. 329
• Parties: , 88 L.R.R.M. (BNA) 2778, 75 Lab.Cas. P 10,375 Scott HUDGENS v. LOCAL 315 RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION,, et al
• Court: Georgia Court of Appeals

Page 821

210 S.E.2d 821

133 Ga.App. 329, 88 L.R.R.M. (BNA) 2778,

75 Lab.Cas. P 10,375

Scott HUDGENS v. LOCAL 315 RETAIL, WHOLESALE, AND DEPARTMENT STORE UNION AFL-CIO, et al.

No. 49328.

Court of Appeals of Georgia, Division No. 1.

Oct. 7, 1974.

Rehearing Denied Nov. 18, 1974.

Jones, Bird & Howell, Dow N. Kirkpatrick, II, Atlanta, Lederer, Fox & Grove, Lawrence M. Cohen, Chicago, Ill., for appellant.

Adair, Goldthwaite, Stanford & Daniel, Morgan C. Stanford, Moore, Alexander & Rindskopf, John R. Myer, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Scott Hudgens, owner of a large shopping center, sought a declaratory judgment and injunctive relief in the Fulton County Superior Court. There were three defendants: (1) a local labor union of the Retail, Wholesale, and Department Store Union, AFL-CIO, (2) an unincorporated association engaged in propagandizing against our nation's participation in the Southeast Asia conflict under the name of 'The Atlanta Mobilization Committee,' and (3) Richard Guy Steffel individually and as a member of that committee. As it was acknowledged in trial court (T. 54) that the AMC was no longer in existence and therefore to be dismissed from this suit, we deal only with the other two defendants. We find their factual and legal positions to be totally disparate. Accordingly we must consider their cases independently of each other. Additionally, it should be noted that plaintiff's voluntary elimination of his equity injunction prayers in the trial tribunal and the absence of any constitutional question resulted in this appeal being transferred to us by the Supreme Court. Hudgens v. Local #315, 231 Ga. 669, 203 S.E.2d 478.

The crux of the complaint as stated in its 'Introductory Statement' is as follows: 'Scott Hudgens seeks to have this Court declare that the Georgia Criminal Trespass Law, Title 26, Ga.Code Ann. § 26-1503 . . . may be enforced against the defendants and others similarly situated, and that the defendants be enjoined, pursuant to that law, from trespassing on the private shopping center premises of Scott Hudgens.'

As to Steffel

In October 1970, two years before plaintiff landowner filed the instant suit, Steffel and others had sought to distribute handbills in the public areas of plaintiff's shopping center protesting the war in Viet Nam. On the first occasion they complied with the direction from the shopping center's representative to cease and leave. They re-appeared two days later and were again asked to depart from the premises. At least one participant refused to desist and remained on the premises. She was arrested by the DeKalb County police and charged with violation of the Georgia Criminal Trespass statute. Our record does not disclose disposition of these arrest charges but footnote 3 of the U.S. Supreme Court decision of Steffel v. Thompson, 415 U.S. 452, 456, 94 S.Ct. 1209, 1214, 39 L.Ed.2d 505, states 'that the trial of petitioner's companion, Sandra Lee Becker, has been stayed pending decision of this case.'

Steffel complied with the request to leave but thereafter filed a complaint in the United States District Court under the Civil Rights Act wherein he sought a Federal Declaratory Judgment that the Georgia Criminal Trespassing statute was being applied in violation of petitioner's First and Fourteenth Amendment rights. After dismissal of his action in the trial court (Becker v. Thompson, 334 F.Supp. 1386 (N.D.Ga.1971)) and affirmance in the Circuit Court of Appeals (Becker v. Thompson, 459 F.2d 919 (5th Cir. 1972)) certiorari was granted by the United States Supreme Court. There, in Steffel v. Thompson, supra, a unanimous court reversed and remanded for the District Court to determine if the controversy still continued in view of the reduction of the nation's involvement in Viet Nam.

The trial record in our appeal to which we are normally limited in considering any case (Maloy v. Dixon, 127 Ga.App. 151(1), 193 S.E.2d 19) contains nothing as to this Federal litigation. Nevertheless, we recognize all U.S. Supreme Court decisions and must additionally make reference thereto because Steffel has filed a dismissal motion in our court. He has moved to dismiss the appeal as to him on the basis that it 'has been mooted by intervening changes in the fact situation which have eliminated the adversity between the parties.' In doing so, Steffel has also provided us with a copy of his letter to the Hon. Albert J. Henderson, Jr. of the U.S. District Court. Therein he quotes the U.S. Supreme Court's suggestion from 460 of 415 U.S., p. 1216 of 94 S.Ct. of the Steffel opinion: 'Since we cannot ignore the recent developments reducing the Nation's involvement in that part of the world, it will be for the District Court on remand to determine if subsequent events have so altered petitioner's desire to engage in handbilling at the shopping center that it can no longer be said that this case presents 'a substantial controversy, between parties having adverse legal interests, sufficient immediacy and reality to warrant the issuance of a declaratory judgment. '' In his motion in our court to dismiss for mootness he reiterates that he will not return to the shopping center for any handbilling or similar activities.

Appellant argues Steffel's dismissal motion should be denied because of the possibility of a repetition and 'the parties should be entitled to know their respective rights when such a confrontation occurs again.' The controlling precedents require us to enter a dismissal as to Steffel. 'The Georgia Declaratory Judgments Act . . . makes no provision for a declaratory judgment which is merely advisory.' Liner v. City of Rossville, 212 Ga. 664, 94 S.E.2d 862; State of Georgia v. Hospital Authority, 213 Ga. 894, 102 S.E.2d 543. Additionally, there is the absence of the essential prerequisite of 'actual controversy' required by Code Ann. § 110-1101. As was quoted with approval from Borchard on Declaratory Judgments (2d Ed.) by our Supreme Court in City of Nashville v. Snow, 204 Ga. 371, 377, 49 S.E.2d 808; "(T)he principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events-and the prejudice to his position must be actual and genuine and not merely possible or remote."

Appellant eloquently resists granting the mootness dismissal on three grounds. He first asserts the case is not moot because of 'the likelihood of recurrence of conflict between the parties regarding the rights of plaintiffs and others to engage in free speech activities on the property of the Center' citing Diamond v. Bland, 3 Cal.3d 653, 91 Cal.Rptr. 501, 477 P.2d 733. This possibility does not exist in view of Steffel's express declaration in both the District Court and our court. His second argument based upon the recent ruling of Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 is that 'without a resolution of the parties' respective claims, its right to operate private commercial enterprise premises without interference may suffer a substantial adverse effect,' is likewise not applicable. The third assertion is that the problem is 'capable of repetition yet evading review.' This is founded on these words used by the Supreme Court in both So. Pac. Terminal Co. v. Int. Commerce Comm., 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310, and Super Tire Engineering Co. v. McCorkle, supra. Such claim disappears in the light of the pending state criminal trespass charges against Steffel's companion and the fact that our decision does not deprive appellant of his undertaking a direct test of his right to forbid activities such as union picketing of tenants and distribution of handbills in the public area of his shopping center whenever such situation occurs by making charges against individuals refusing to recognize his private property claims.

As to the Labor Union Local

The sole question presented by the enumerations of error as to the labor union is whether the state court has jurisdiction of this controversy or whether the matter is one that falls within the exclusive jurisdiction of the National Labor Relations Board. In answering the complaint the defendant union local filed a plea to the jurisdiction, a motion to dismiss, and an answer. The jurisdiction plea averred 'The matter alleged in the complaint of the plaintiff constitutes conduct which is either protected or prohibited under the terms of the National Labor Relations Act, as amended (29 U.S.C. § 141 et seq.), in either of which events it lies wholly and exclusively within the jurisdiction of the National Labor Relations Board.' (R. 27).

The factual setting as to the union involved a picketing situation by its members of one of the shopping center's stores occupied by a tenant of plaintiff. This incident had occurred on January 22, 1971, almost two years before Hudgens filed this suit in January 1973. In the interim the controversy between Hudgens and the union had already been brought before the National Labor Relations Board which was acknowledged by Hudgens in Paragraph 6 of its complaint. (R. 3). The record from pages 31 through 41 contains the National Labor Relations Board decision and order rendered August 16, 1971, and...