WHATCOM COUNTY v. KANE

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Docket Number

No. 8706-1-I.

Attorney(S)

Julius Kane, pro se. David S. McEachran, Prosecuting Attorney, and Eugene R. Moses, Deputy, for respondent.

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Smart Summary

Factual and Procedural Background

On March 3, 1980, the Whatcom County Prosecuting Attorney filed a civil action seeking injunctive relief against Julius and Roberta Kane to prohibit them from commencing litigation, filing pleadings in Whatcom County courts, or assisting others in commencing proceedings without prior written leave of court. The prosecutor filed motions for a preliminary injunction, consolidation of hearings, and an order to show cause. The court consolidated the preliminary and permanent injunction hearings and issued a show cause order returnable March 14, 1980. Julius Kane was personally served on March 4, 1980. The Kanes did not appear at the March 14 hearing. The trial court entered a default judgment and a permanent injunction dated March 14, 1980, apparently based on affidavits from two deputy prosecutors and without testimony. The injunction required prior leave of court before commencing proceedings or filing documents, directed referral to the presiding judge and notice to the county prosecutor, and declared filings without prior leave null and void; the order stated no reasons for issuance. Julius Kane did not move to vacate the default but filed a timely notice of appeal. The trial court later clarified the order as granted upon the prosecutor's certificate of submissions and Kane's default.

Legal Issues Presented

Whether the default judgment was prematurely entered before the time to answer had expired and therefore must be set aside.
Whether the permanent injunction complied with CR 65(d)'s requirement that an injunction set forth the reasons for its issuance.
Whether a court may issue the broad injunctive relief sought — i.e., enjoining a person from engaging in litigation — and, if so, under what showing and limitations (scope and consideration of less drastic remedies).

Arguments of the Parties

Appellant's (Julius Kane) Arguments

An assignment of error (challenging the default) was well taken on its face: the default judgment was entered prematurely before the time to answer had expired, entitling him to relief from default.
He preserved his rights by filing a timely notice of appeal despite not moving to vacate below.

Respondent's (Whatcom County) Arguments

The County did not argue the merits of the injunction in this court and argued that there was nothing to review because Julius Kane's brief was unintelligible.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Griffin v. Department of Social Health Servs., 91 Wn.2d 616, 590 P.2d 816 (1979)	Assignments of error well taken on their face will be considered even if unsupported by argument or authority.	Used to justify considering Kane's appeal despite an unintelligible brief.
Rich v. Starczewski, 29 Wn. App. 244, 628 P.2d 831 (1981)	Same rule as Griffin regarding consideration of unsupported contentions that are well taken on their face.	Applied to consider appellant's contentions despite lack of supporting citation.
Tiffin v. Hendricks, 44 Wn.2d 837, 271 P.2d 683 (1954)	Defendant entitled to have a default judgment vacated without an affidavit of merits when judgment was entered before time to answer expired.	Relied upon to hold the default judgment was improperly entered and must be set aside.
Batchelor v. Palmer, 129 Wn. 150, 224 P. 685 (1924)	Supports the rule that prematurely entered defaults are subject to vacation without affidavit of merits.	Used with Tiffin to support reversal of the default judgment.
State v. McCoy, 122 Wn. 94, 209 P. 1112 (1922)	Illustrative authority concerning failure to file a responsive pleading within the time allowed.	Quoted by analogy (cf.) regarding timing of responsive pleadings.
Burdick v. Burdick, 148 Wn. 15, 267 P. 767 (1928)	Court has authority to enjoin a person from engaging in litigation where sufficient facts are proved.	Recognized as authority that such injunctive power exists when supported by sufficient proof.
Pavilonis v. King, 626 F.2d 1075 (1st Cir. 1980)	Proof of mere litigiousness will not support an injunction.	Quoted to caution that mere litigiousness is insufficient to justify an injunction.
Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980)	Some injunctive relief may be appropriate if a specific and detailed showing of abusive and frivolous litigation is made.	One of several cases cited for the proposition that injunctions require specific factual showings of abuse.
Green v. White, 616 F.2d 1054 (8th Cir. 1980)	Same general principle regarding injunctive relief against abusive litigation.	Cited as part of supporting authority for limitations on injunctive relief.
Gordon v. United States Dep't of Justice, 558 F.2d 618 (1st Cir. 1977)	Authority on injunctive relief in context of abusive litigation.	Cited among cases discussing conditions for issuing injunctions limiting litigation.
Clinton v. United States, 297 F.2d 899 (9th Cir. 1961)	Related authority on injunctive relief against vexatious litigants.	Included in the court's discussion of existing authority.
Carter v. Telectron, Inc., 452 F. Supp. 944 (S.D. Tex. 1977)	Federal case cited regarding injunctions against abusive litigation.	Used as supporting authority for limitations and prerequisites for issuing such injunctions.
Kane v. New York, 468 F. Supp. 586 (S.D.N.Y. 1979)	Cited for the proposition that courts should consider less drastic remedies than broad injunctions.	Referenced to emphasize considering alternatives to denying access to courts.
Ex parte Tyler, 70 F.R.D. 456 (E.D. Mo. 1975)	Authority suggesting courts consider less drastic remedies.	Quoted as illustrating alternatives to comprehensive injunctions.
Shutt v. Moore, 26 Wn. App. 450, 613 P.2d 1188 (1980)	Affirms the fundamental right of citizens to place grievances before a court of law.	Quoted to underscore the constitutional importance of access to courts when considering injunctive relief.

Court's Reasoning and Analysis

The court first addressed procedural defects. It applied the principle that appellate courts will consider well-taken assignments of error even if briefs lack authority (citing Griffin and Rich) and identified a dispositive procedural error: the default judgment was entered only ten days after service of process whereas CR 4(a)(2) required a longer period (20 days), making the default prematurely entered. Relying on Tiffin v. Hendricks and Batchelor v. Palmer, the court held a defendant is entitled to have such a default set aside without an affidavit of merits. Because Kane filed a timely appeal, he preserved the right to an order setting aside the default.

The court found an additional procedural defect: the injunction did not comply with CR 65(d), which requires an injunction to state the reasons for its issuance. The court also considered, but did not resolve on the merits, the scope of the trial court's authority to issue broad injunctive relief. It recognized existing authority permitting injunctions against vexatious litigants where sufficient facts are proved (citing Burdick and other cases), cautioned that mere litigiousness is insufficient (citing Pavilonis), and emphasized that any injunction must be no broader than necessary and that less drastic remedies should be considered (citing Kane v. New York, Ex parte Tyler, and related decisions). Finally, it underscored the constitutional importance of access to courts (citing Shutt v. Moore).

Holding and Implications

REVERSED and REMANDED.

Holding: The Court of Appeals reversed the trial court's order of default and the permanent injunction and remanded the matter for further proceedings.

Implications: The direct effect is that the default judgment and the permanent injunction are vacated and the case returns to the trial court for further proceedings consistent with the opinion (including compliance with CR 65(d) and consideration of appropriate scope and less drastic remedies). This opinion resolves the procedural defects identified but does not purport to establish a new rule of law beyond applying existing authorities cited.

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WHATCOM COUNTY, Respondent, v. JULIUS KANE, ET AL, Appellants.

[1] Appeal and Error — Assignments of Error — Citation of Authority — Meritorious Contention. An assignment of error that is well taken on its face will be considered by an appellate court regardless of whether it is supported by relevant argument or citation of authority.

[2] Judgment — Default — Vacation — Affidavit of Merits — Premature Default. A defendant is entitled to have a default judgment vacated without furnishing an affidavit of merits when the judgment was entered before the time to answer expired.

[3] Courts — Denial of Access — Authority To Deny. A court has the authority to enjoin a person from engaging in litigation upon a showing of a pattern of abusive and frivolous litigation. The injunction must be no broader than necessary to correct injurious activities, and remedies which do not deny a person access to the courts are preferable.

[As amended by order of the Court of Appeals February 10, 1982, deleting directions that the opinion should not be published.]

RINGOLD, A.C.J.

Julius Kane appeals an injunction barring him from engaging in certain litigation activities without prior approval of court. We reverse on procedural grounds and remand for further proceedings.

On March 3, 1980, the Whatcom County Prosecuting Attorney's Office filed a civil action seeking injunctive relief against Julius and Roberta Kane. The County sought to enjoin the Kanes from commencing litigation or filing pleadings in any Whatcom County court unless they obtained prior written leave of court. The County also sought an injunction barring the Kanes from assisting others in commencing legal proceedings. Along with the complaint, the prosecutor filed a motion for a preliminary injunction, a motion for consolidation of the hearings on the preliminary and permanent injunction and a motion for an order to show cause. The court consolidated the hearing on the preliminary injunction with the hearing on the merits for a permanent injunction and issued a show cause order returnable on March 14, 1980. On March 4, 1980, the sheriff personally served Julius Kane with the court's order, the summons, the complaint, the motion and all supporting pleadings.

Roberta Kane is not named in the Notice of Appeal.

The Kanes failed to appear at the March 14 hearing, and the court entered a default judgment granting the County's request for a permanent injunction against the Kanes. From the record, it appears that the trial court heard no testimony, but based its default judgment on the factual allegations contained in affidavits filed by two deputy prosecutors. The permanent injunction, dated March 14, 1980, required the Kanes to obtain prior leave of court before commencing any legal proceeding or filing any legal document in Whatcom County against any citizen. It declared that all such documents must be referred to the presiding judge and that copies must be sent to the county prosecuting attorney. The order also required the prosecutor to advise the presiding judge of any reason why the documents should not be filed and declared that any document filed without prior leave shall be null and void. The court stated no reasons for the issuance of the injunction.

Julius Kane did not move for vacation of the default judgment, but filed a timely Notice of Appeal. The trial court subsequently clarified its order to state that it was granted upon the prosecutor's certificate of submissions and the default of Julius Kane.

[1] The County does not argue the merits of the injunction, but insists that we have nothing to review because the brief of Julius Kane is unintelligible. This case, however, comes within the rule that contentions raised on appeal that are unsupported by relevant argument or citation of authority will be considered if well taken on their face. Griffin v. Department of Social Health Servs., 91 Wn.2d 616, 590 P.2d 816 (1979); Rich v. Starczewski, 29 Wn. App. 244, 628 P.2d 831 (1981). One of Kane's arguments has obvious merit and is dispositive of this appeal.

[2] Where a default judgment is prematurely entered before the time to answer has expired, the defendant is entitled to have the default set aside as a matter of right without furnishing an affidavit of merits. Tiffin v. Hendricks, 44 Wn.2d 837, 271 P.2d 683 (1954); Batchelor v. Palmer, 129 Wn. 150, 224 P. 685 (1924). Here, the default judgment was entered only 10 days after the complaint and summons were served on Julius Kane. The default judgment was improper because 20 days had not elapsed since the service of summons. CR 4(a)(2); cf. State v. McCoy, 122 Wn. 94, 209 P. 1112 (1922) (no responsive pleading within the time allowed by law).

Julius Kane did not move to vacate the judgment, but he preserved his rights by filing a timely appeal. RAP 2.2. He, therefore, has a right to an order setting aside the default judgment.

There is another defect in the judgment entered by the trial court. CR 65(d) requires every injunction to set forth the reasons for its issuance. The injunction entered by the trial court in this case contains no such reasons.

[3] On the question of the power of the trial court to issue the broad injunctive relief granted in this case, we are aware that such authority exists where sufficient facts are proved. Burdick v. Burdick, 148 Wn. 15, 267 P. 767 (1928). Proof of mere litigiousness will not support an injunction, see Pavilonis v. King, 626 F.2d 1075 (1st Cir. 1980), but some injunctive relief may be appropriate if the County makes a specific and detailed showing of a pattern of abusive and frivolous litigation. See Eismann v. Miller, 101 Idaho 692, 619 P.2d 1145 (1980); Green v. White, 616 F.2d 1054 (8th Cir. 1980); Gordon v. United States Dep't of Justice, 558 F.2d 618 (1st Cir. 1977); Clinton v. United States, 297 F.2d 899 (9th Cir. 1961); Carter v. Telectron, Inc., 452 F. Supp. 944 (S.D. Tex. 1977). The trial court must be careful not to issue a more comprehensive injunction than is necessary to remedy proven abuses, and if appropriate the court should consider less drastic remedies. See Kane v. New York, 468 F. Supp. 586 (S.D.N.Y. 1979); Ex parte Tyler, 70 F.R.D. 456 (E.D. Mo. 1975). As we said in Shutt v. Moore, 26 Wn. App. 450, 456, 613 P.2d 1188 (1980), "[a] cornerstone of our constitutional system is the right of all citizens to place their grievances before a court of law . . ."

We reverse the order of default and the permanent injunction and remand for further proceedings.

CALLOW and CORBETT, JJ., concur.

Reconsideration denied March 2, 1982.