In Kenosha Unified School District v. Kenosha Education Association, 70 Wis.2d 325, 333, 234 N.W.2d 311 (1975), the power of a court to punish for contempt was characterized as an inherent power of the court existing independently of any particular grant of such power by the constitution or legislature.Summary of this case from Jacobson v. Avestruz
No. 157 (1974).
Argued October 2, 1975. —
Decided October 28, 1975.
APPEAL from an order of the circuit court for Kenosha county: GORDON MYSE, Circuit Judge of the Tenth Circuit, Presiding. Reversed and remanded.
For the appellants there were briefs by John C. Carlson and Lawton Cates, all of Madison, and oral argument by Mr. Carlson.
For the respondent there was a brief by Davis, Kuelthau, Vergeront, Stover Leichtfuss, S.C., attorneys, and Walter S. Davis and John P. Savage of counsel, all Milwaukee, and oral argument by Mr. Savage.
This is an appeal from an order denying a motion to vacate or reduce fines imposed for contempt of court in violation of a temporary injunction in a municipal employees' labor dispute.
The issues before us arise from a strike by the teachers in the Kenosha school district in September of 1973.
The teachers in the Kenosha Unified School District No. 1 were employed under the terms of a collective bargaining agreement which expired on June 30, 1973. Negotiations for a new contract began in December, 1972, between the district, represented by the school board, and the teachers, represented by the Kenosha Education Association, their duly certified bargaining agent. Despite approximately 24 negotiating sessions, an agreement was not reached prior to the commencement of school.
On September 5, 1973, the first scheduled day for classes, the members of the teachers' association went on strike. About 750 of a total of 1,150 teachers did not report for work. Approximately 8,900 of 21,500 students in the district reported for classes on September 5th, and about 5,600 on September 6th. The district schools were closed effective September 7th because of the strike. On September 11, 1973, by verified complaint, the Kenosha school district sought a temporary and permanent injunction to restrain the members of the association from continuing the strike and related activities. Named as defendants were the association, its individual officers and "all persons acting in concert or in combination with the named defendants, their agents, servants and employees." Upon filing of the summons and complaint in the circuit court for Kenosha county, the court signed an order directing defendants to show cause why a temporary injunction and temporary restraining order should not be granted.
Several conferences and testimonial hearings on the order to show cause were held on September 13th, 14th and 16th before Circuit Judge GORDON MYSE (who was substituted for Judge HAROLD M. BODE). At the September 16th hearing, the trial court found that a showing of irreparable harm had been made and ordered that defendants be temporarily enjoined from continuing the strike effective Monday, September 17th. A written order was filed, nunc pro tunc, on September 18, 1973. The individual defendants, as officers of the association, were instructed to inform the membership of the order for temporary injunction and a meeting for that purpose was held at 6 a.m., on Monday, September 17th. At that meeting the teachers decided not to return to school to teach. Of the 1,150 teachers employed by the district, 397 reported for work on the 17th and 396 on the 18th.
On September 17th, the district secured an order to show cause why defendants should not be found in contempt for failing to obey the order for temporary injunction. Three members of the association's negotiating team who were not named as individual defendants in the original summons and complaint were also served with this order to show cause.
Hearings on the order to show cause for contempt were held on Tuesday, September 18th, and Wednesday, September 19th. At the September 18th hearing the district acceded to a motion by counsel for defendants that interrogatories be served pursuant to sec. 295.12, Stats., specifying the facts and circumstances alleged against defendants.
"295.12 Interrogatories, filing of, and proceedings. When any defendant shall have been brought into court by virtue of an attachment, or on such writ of habeas corpus, or shall have appeared upon the return of an attachment the court shall, unless he admits the offense charged, cause interrogatories to be filed specifying the facts and circumstances alleged against the defendant and requiring his answers thereto; to which the defendant shall make written answers on oath within such reasonable time as the court shall allow; and the court may receive any affidavits or other proofs, contradictory of the answers of the defendant or in confirmation thereof, and upon the original affidavits, such answers and such subsequent proof shall determine whether the defendant has been guilty of the misconduct alleged."
Court reconvened shortly after midnight on the morning of September 19, 1973, for the purpose of hearing evidence on the order to show cause for contempt. At that hearing the motion to dismiss for want of jurisdiction was denied. Joseph Anderson, a member of the association's negotiating team, testified to the manner in which the membership decided to defy the injunction order at the September 17th meeting. John Niemeier, a member of the association's executive committee, stated that he had made a tape recording on September 17th for the purpose of radio broadcast, wherein, speaking on behalf of the president of the association, he asked parents not to send their children to school because the teachers had voted to remain on strike. Counsel for the association conceded that the evidence showed a violation of the order for temporary injunction.
Following the testimony and arguments by counsel, the court found the association and the individual defendants in contempt. The court imposed a fine of $7,500 per day, commencing on Monday, September 17th, on the association. A fine of $10 per day over the same period was imposed on the individual defendants. The court also provided that defendants could purge themselves of the contempt finding by reporting for work on Wednesday, September 19, 1973. They did not and were found to have violated the injunctive order for a period of five days.
On September 21st, a motion by the association to vacate the fines or, in the alternative, to reduce them was taken under advisement. By memorandum decision filed November 12, 1973, the court denied the motion to vacate but reduced the fine imposed on the association to $3,000. Both parties appeal from this decision.
The Kenosha Education Association contends the trial court erred in assessing any fine against it and, if this was not error, the fine assessed was in excess of the statutory maximum permitted in either sec. 111.70(7) or sec. 295.14, Stats., and therefore error.
The Kenosha Unified School District contends the court abused its discretion in reducing the fine imposed upon the association to $3,000.
Upon finding defendants in contempt for having violated the order for temporary injunction, the circuit court fined the individual defendants $10 for each day of violation and the Kenosha. Education Association $7,500 for each day of violation. The fines assessed against the individuals are not at issue on this appeal. The fine assessed against the association was later reduced to a total of $3,000. The defendant association's first contention on appeal is that the court erred in imposing any fine on the association as a separate entity. It asserts that the penalty for contempt for violating an injunction issued against a municipal employees' strike is controlled by the provisions of sec. 111.70(7), Stats. That section provides:
"PENALTY FOR STRIKER. Whoever violates sub. (4) (1) after an injunction against such a strike has been issued shall be fined $10. After the injunction has been issued, any employee who is absent from work because of purported illness shall be presumed to be on strike unless the illness is verified by a written report from a physician to the employer. Each day of continued violation constitutes a separate offense. The court shall order that any fine imposed under this subsection be paid by means of a salary deduction at a rate to be determined by the court."
The association argues that the history of that section indicates a legislative intent that no fine in excess of $10 per day may be imposed on individual strikers. Relying on a rule that association liabilities must ultimately be borne by its individual members, it asserts that the intent of the statute is thwarted where a court imposes an additional fine on the association as a separate entity.
The school district disputes defendants' claim that sec. 111.70(7), Stats., limits a court's authority to punish by contempt the violation of injunctional orders against municipal employee strikes, and contends that the legislative intent, argued by the teachers' association to be evident from the section's history, is not thwarted in this case.
The record indicates that there were 1,150 teachers in the district. At the September 14th hearing, Otto Huettner, superintendent of schools, stated that approximately 400 teachers reported for work on September 5th and thereafter. At the contempt hearing on September 19th, Huettner testified that 397 teachers reported for work on September 17th and 18th following the issuance of the injunction. In his affidavits in support of the order to show cause for temporary injunction and the order to show cause for contempt, Huettner asserted that only 380 teachers reported on September 6th and that 750 remained on strike on Monday, September 17th. The district contends that this record indicates that, at various times during the strike, 750 teachers failed to report for work. It is further argued that the original fine of $7,500 per day imposed by the court on the association is consistent with the statutory formula ($10 per striker X 750 strikers == $7,500).
We conclude that the plain language of sec. 111.70(7), Stats., indicates that it was intended to serve only as a limitation on the fine which might be imposed upon individual strikers who are, found to have violated an injunction issued against an illegal strike. The section provides that "whoever" continues to strike in the face of an injunction "shall be fined $10." It appears to be the rule that when the word "whoever" is employed in a statute, it is considered to refer only to "persons," whether natural or corporate, and not to unincorporated associations. This principle is fortified in this case by the last sentence in the section which states that the fine imposed shall be paid by means of a salary deduction. It cannot be logically argued that this sentence refers to any entity but an individual municipal employee. The association did not receive a salary, and obviously none from the district.
However, we believe the provisions of sec. 111.70(7), Stats., do not, standing alone, preclude the imposition of an additional fine on the association as a separate entity. This court has held that an unincorporated association, such as a labor organization, has the capacity to sue and be sued on behalf of its members. If the unincorporated association, here the Kenosha Education Association, which purports to act for its members, can be sued, it follows that it must be responsive to the orders of the court and can be found in contempt for violations of such orders under the general civil contempt statutes as provided in ch. 295, Stats.
See: 8 Wisconsin Law Review (1933), 334, Statute Law, Contempt — Review of Wisconsin Legislation.
Sec. 295.14, Stats., provides:
"Indemnifying loss; fine. If an actual loss or injury has been produced to any party by the misconduct alleged the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss. Where no such actual loss or injury has been produced the fine shall not exceed two hundred and fifty dollars over and above the costs and expenses of the proceedings."
Under this statute there are two alternatives: The contemnor can be ordered to pay the actual expenses occasioned by his contempt plus the costs and expenses, or $250 plus the costs and expenses. The record here does not reveal any actual monetary damage suffered by the school district. Therefore, under this statute, the fine must be limited to $250 plus costs and expenses.
See the thorough analysis of this subject in Comment, Contempt — Control by the Courts and by the Legislature in Wisconsin, 9 Wisconsin Law Review (1934), 278.
". . . In order to accomplish the purposes for which they are created, courts must also possess powers. From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers. . . .
"Among such powers is the power to preserve order, command obedience to its orders, and to punish for contempt . . . ."
In numerous other cases the court has stated that the contempt power is inherent in the courts and exists independently of any particular grant of such power by the constitution or the legislature. The court has also consistently held, however, that this power is subject to reasonable regulation by the legislature.
See: Appeal of Cichon (1938), 227 Wis. 62, 278 N.W. 1; Rubin v. State (1927), 192 Wis. 1, 211 N.W. 926; State ex rel. Rodd v. Verage (1922), 177 Wis. 295, 187 N.W. 830; In re Meggett (1900), 105 Wis. 291, 81 N.W. 419; State v. Dickson (1972), 53 Wis.2d 532, 193 N.W.2d 17.
See: Jos. Schlitz Brewing Co. v. Washburn Brewing Asso. (1904), 122 Wis. 515, 100 N.W. 832; State ex rel. Lanning v. Lonsdale (1880), 48 Wis. 348, 4 N.W. 390; Rubin v. State, supra.
The district contends that the limitation imposed by sec. 295.14, Stats., constitutes an impediment to the power of a court to enforce its lawful orders and preserve its dignity and authority. It points out that if a penalty in a civil contempt case is intended to induce the contemnor to obey an order, that objective cannot be attained by imposing a penalty of only $250. Plaintiff cites several cases wherein the courts of other jurisdictions have held that a similar limitation on the penalty which may be assessed for contempt constituted an unreasonable restriction on the courts' inherent power. See: State ex rel. Oregon State Bar v. Lenske (1965), 243 Or. 477, 405 P.2d 510, 407 P.2d 250, certiorari denied, 384 U.S. 943, 86 Sup.Ct. 1460, 16 L.Ed.2d 541, rehearing denied, 384 U.S. 1028, 86 Sup.Ct. 1920, 16 L.Ed.2d 1047; Levisa Stone Corp. v. Hays (KY. App. 1968), 429 S.W.2d 413; Arnett v. Meade (Ky.App. 1971), 462 S.W.2d 940.
The association argues in its reply brief that regulation in the area of labor relations should be and has been left to the legislature. See: American Furniture Co. v. 1. B. of T. C. and H. of A., etc. (1936), 222 Wis. 338, 268 N.W. 250. It implies that if the legislature had deemed it necessary to impose a greater penalty on public employee associations than that provided by sec. 295.14, Stats., it would have done so. In view of the apparent legislative decision not to do so, defendants contend that the $250 penalty is not unreasonable.
In a recent Washington case, individual teachers and an education association were held in contempt for violating a temporary injunction prohibiting a teachers' strike. A fine was imposed on the association of $1,000. The teachers argued on appeal that this fine was in excess of the $100 penalty authorized for civil contempts by a Washington statute. In Mead School District No. 354 v. Mead Education Asso. (1975), 85 Wn.2d 278, 534 P.2d 561, the Washington Supreme Court held that the court has inherent power to punish for contempt and held that while the legislature may regulate that power, it may not diminish it so as to render it ineffectual. However, the court ruled that the $1,000 fine could not stand because the trial court had made no finding that the statutory $100 penalty would impair its contempt power in that case. The fine against the association was modified by the court to fit within the $100 maximum set by the statute.
In this case there is no specific finding by the trial court that its power would be rendered ineffectual by the limitation set by sec. 295.14, Stats. Such a finding is necessary if the fine imposed is to exceed these limitations.
We conclude, therefore, that the maximum fine that could have been imposed upon the Kenosha Education Association was $250 plus reasonable costs and expenses of the proceedings. The record must be remanded for an imposition of a fine not to exceed $250. In addition thereto, the school district shall be given an opportunity to establish its reasonable and necessary costs and expenses of the proceedings.
In view of this disposition of the appeal, we do not reach the district's contention that the trial court abused its discretion in reducing the fine.
By the Court. — Order reversed and remanded for further proceedings. No appeal costs to be taxed.