American Federation of Technical Engineers v. La Jeunesse ( 1976 )

MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. The demise of the archaic fiction that “an unincorporated association has no separate legal existence independent of the members who compose it” (slip opinion, page 2) is long overdue. The General Assembly has acknowledged the separate, independent, legal existence of such entities by enactment of “An Act authorizing unincorporated fraternal and social organizations to acquire, hold and convey real estate ***” (Ill. Rev. Stat. 1975, ch. 30, par. 183 et seq.), which conferred upon such an entity the power to own real estate for “its own use and benefit” and to sue and be sued in actions concerning it.

The majority suggests that if there aré additional changes in the common law rule that such an entity cannot sue or be sued in its own name “it should come through legislative action” (slip opinion, page 2). The short answer to that position is, to paraphrase the language of Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 25, that the courts created the rule without the aid of the General Assembly and can in like manner change it.

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 47 L. Ed. 2d 231, 96 S. Ct. 1048, decided by the Supreme Court on March 3, 1976, demonstrates the anomaly which results from the application of the rule perpetuated by the majority. Section 301(a) of the Labor Management Relations Act (29 U.S.C. sec. 185) specifically provides that a labor organization may sue or be sued as an entity in the courts of the United States. In Hines the plaintiff sought relief against his union for alleged breach of its duty to fairly represent him in an arbitration proceeding. Given the same set of facts in Illinois and absent the element of activities which affect interstate commerce (29 U.S.C. sec. 185(a)) the plaintiff would be without recourse. He would not have been able to sue in the United States District Court, and the archaic rule which the majority continues in force would effectively deprive him of a remedy.

The facts of life are that unincorporated voluntary associations, as entities, own and control assets worth millions of dollars and wield great power, both economic and political. Their ability to sue and be sued should not depend upon the continued existence of an archaic rule based on a legal fiction.

KLUCZYNSKI and CREBS, JJ., join in this dissent.