Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn Shoeworkers Protective Ass'n, LEWISTON-AUBURN

CourtSupreme Judicial Court of Maine (US)
Citation320 A.2d 247
Parties86 L.R.R.M. (BNA) 3176, 21 Wage & Hour Cas. (BNA) 925, 74 Lab.Cas. P 53,385 SHAPIRO BROS. SHOE CO., INC. v.SHOEWORKERS PROTECTIVE ASSOCIATION et al.
Decision Date28 May 1974

Brann & Isaacson by Irving Isaacson, Peter M. Garcia, Lewiston, for plaintiff.

Linnell, Choate & Webber by Frank W. Linnell, G. Curtis Webber, Auburn, for defendants.



By written notice posted on a bulletin board in its plant on January 23, 1973, the Plaintiff shoe company announced to its employees that it 'is voluntarily going out of business and shall conclude all of its activities in the manufacture of shoes on February 22, 1973'. In fact, however, the company ceased operations on February 5, 1973, thirteen days after the posting of the above notice. 1

On March 2, 1973 the Defendant labor organization, through its attorney, notified the Plaintiff's attorney by mail that it felt the shoe company is obligated to pay severance pay to employees who had worked at the plant for one year or longer. The letter continued:

'It is essential that this matter be resolved at once, and we are prepared to bring suit within the next few days on behalf of the union itself and as a class action for all union members employed at Shapiro Brothers unless we hear from you within that time regarding arrangements to take care of this matter. The above is not intended as a threat but simply to express our urgency about having this matter resolved immediately.'

Two weeks later, on March 16, the Plaintiff instituted the present action for a declaratory judgment and injunctive relief against the union. Later, the three individual Defendants, all of whom had worked for the Plaintiff for over a year until being laid off at the plant's closing, were added by agreement and order of court. The Plaintiff seeks a declaration that paragraphs two and three of 26 M.R.S.A. § 625 2 are unconstitutional. If such is this Court's decision, the Plaintiff also desires injunctive relief to prevent the Defendants from exercising any rights or powers under said statute. This case is before us on report under M.R.C.P., Rule 72(b) with an agreed statement of facts, dated May 16, 1973.

While this action has been pending, the Legislature repealed paragraph two of 26 M.R.S.A. § 625 and substituted a new paragraph in its place. P.L.1973, ch. 545. 3 This recent enactment took effect October 3, 1973, ninety days after the adjournment of the Legislature.

The statutory language under attack requires an employer of 100 or more persons to give one month's notice to its employees prior to voluntarily going out of business. Failure to give this notice shall obligate the employer to pay severance pay (up to a maximum of one month's pay) to employees who have worked a year or more for the employer.

The Plaintiff contends that it is not so obligated because the statute violates the due process and equal protection provisions of the Maine and federal constitutions. 4 More specifically, the Plaintiff alleges that 1) certain language in the statute is void for vagueness; 2) the statute requires a taking of property without compensation; 3) the statute discriminates against employers who voluntarily cease business; 4) the statute discriminates against employers who employ 100 or more people.

Prior to any discussion of these constitutional questions, we must determine if this action is now moot due to the aforementioned repeal of the relevant section of 26 M.R.S.A. § 625 by P.L.1973, ch. 545. This Court will not entertain an action which has lost its vitality as a properly justiciable controversy. E. g., Good Will Home Ass'n v. Erwin, Me., 285 A.2d 374 (1971). For reasons following, we feel that the issues presented are properly before us and ready for resolution.

During the summer of 1973, after this case was ordered reported to the Law Court by a Superior Court Justice, the Maine Legislature passed P.L.1973, ch. 545. This new act, as we have noted, repealed the second paragraph of 26 M.R.S.A. § 625 and substituted new language effective October 3, 1973, quoted in footnote 2 supra.

While P.L.1973, ch. 545 did not contain a savings clause, there is a general statutory savings clause (originally enacted by P.L.1870, ch. 109) for certain actions which is found in 1 M.R.S.A. § 302. 5 It is of particular interest to us in that it recites that the repeal of an Act does not affect 'actions and proceedings pending at the time of the . . . repeal. . . .'

If there was at the time of the repeal no action pending for the recovery of the claimed severance pay, the issue of constitutionality of the statute may be moot. 6 There is nothing in the record which suggests that the labor union claimed any obligation of the Plaintiff to it directly. We are not called upon to decide whether a union's position as collective bargaining representative can ever give the union standing to bring civil actions for the collection of unpaid money on behalf of its employees. The record does not disclose that this union had been given any such right or that it had standing to bring any action to recover money on its own behalf or on behalf of the employees. In any event, no such action had been brought by the union.

The parties evidently were concerned over possible lack of standing of the union, as the three individual Defendants were added by agreement simultaneously with the matter being reported to us.

The individual Defendants themselves have never filed any independent action seeking to recover from the Plaintiff this statutory severance pay. These Defendants answered Plaintiff's complaint and prayed for a declaratory judgment that the statute is constitutional and that Plaintiff's complaint be dismissed with costs, but they did not make use of the opportunity to counterclaim for any amount of severance pay which they claim is due to them as individuals. Should the Plaintiff's complaint for a declaratory judgment and the individual Defendants' answer be construed as constituting not only the parties' prayer that the constitutionality of the statute be determined but also that, if the statute is constitutional, there should be a later judicial determination as to what sums, if any, are due the individual Defendants? If not, there would be no 'action . . . pending' by the individual Defendants for severance pay on the effective date of the repeal of the statute and the issue of constitutionality may be moot. 7

Analysis of case history of the general savings clause leads us to conclude that the instant suit seeking declaratory relief is necessarily included within the statutory language. This Court has held many times that civil actions of various descriptions were 'pending actions' which would be unaffected by repeal of a statute. E. g., Hamlin v. City of Biddeford, 95 Me. 308, 49 A. 1100 (1901); Whitmore v. Learned, 70 Me. 276 (1879); Estes v. White, 61 Me. 22 (1873). The above cases concerned an action to recover damages for the city's failure to maintain a sewer, an action for forcible entry and detainer, and an action for costs, respectively. It is clear that the savings clause is not intended solely to cover criminal or other specialized actions.

The use of an action for declaratory judgment in the case at bar does not distinguish it from those cases previously deemed 'pending actions'. Long ago, we held that '(a)n action is but the legal demand of a right without regard to the form of the proceedings, by which that right may be enforced'. Inhabitants of Bridgton v. Bennett, 23 Me. 420, 425 (1844). In the first declaratory judgment case before this Court, we noted that the Uniform Declaratory Judgments Act 8 affords a new and more flexible right to relief so long as jurisdiction exists in the court. Maine Broadcasting Co. v. Eastern Trust & Banking Co., 142 Me. 220, 49 A.2d 224 (1946). Therefore, while a declaratory judgment may be a different form of action, it is nevertheless an action in the legal sense seeking redress for certain alleged wrongs. City of San Antonio v. United Gas Pipe Line Co., 354 S.W.2d 217 (Tex.Civ.App.1962); Johnson v. Interstate Transit Lines, 163 F.2d 125 (10th Cir. 1947).

This declaratory judgment action was filed March 16, 1973, several months prior to the Legislature's repeal of the statute which is the subject of the action. The current suit thus qualifies as a 'pending action' under the general savings clause in so far as it prays for a determination of constitutionality. But does it contain assertions by the named Defendants that any severance pay is actually due them sufficient to avoid mootness of the controversy? We think it does.

The Plaintiff's complaint acknowledged that it was faced with an imminent class action to be brought in behalf of all its employees who claimed to be entitled to severance pay. Instead of waiting for and responding to that action, or to numerous individual actions, it chose to use the more adequate and flexible remedy of declaratory judgment. Maine Broadcasting Co. v. Eastern Trust & Banking Co., supra. It not only sought a ruling on constitutionality of the statute but also asked that the Defendants be enjoined from seeking enforcement of any rights as to severance pay pending the final determination as to constitutionality.

On May 16, 1973 the Plaintiff moved to join the three named Defendants, 'former employees of the Plaintiff', as 'necessary and proper parties'. The three 'necessary and proper parties' did not counterclaim, but they did assert in their answer that 'said obligation (i.e., to make severance payments) results from the provisions of state law'. Also on May 16, 1973-while the statute was still in effect-the parties entered into an agreed statement which includes the admission that each of the named Defendants was in the statutory category of those who...

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