YELLOW FREIGHT SYSTEM, INC., Aрpellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.
No. 47,150
Supreme Court of Kansas
March 2, 1974
519 P. 2d 1092
120
David L. Ryan, of Topeka, argued the cause, and Vern Miller, attorney general, and Jerry Shelor, assistant attorney general, were with him on the brief for the appellants.
Robert W. McKinley, Jr., of Swanson, Midgley, Eager, Gangwere & Thurlo, of Kansas City, Missouri, argued the cause, and Richard K. Andrews, of the same firm, and Paul Armstrong, of Columbus, were with him on the brief for the appellee.
The opinion of the court was delivered by
OWSLEY, J.: This is an appeal from an order granting a permanent injunction in an action filed by Yellow Freight System, Inc., against the Kansas Commission on Civil Rights. The action is collateral to an action by the Kansas Commission on Civil Rights on the complaints of Bobby G. Ferrell, Wendell Phillips, and John W. Allen, charging employmеnt discrimination by Yellow Freight System, Inc. Hereafter, the Kansas Commission on Civil Rights will be referred to as the commission; Ferrell, Phillips, and Allen, as complainants; and Yellow Freight System, Inc., as respondent.
On November 21, 1970, the complaint of Ferrell was served upon respondent in Baxter Springs, Kansas, charging racial discrimination in its employee “layoff” practices in violation of the
A hearing was held on respondent‘s motion and the district court granted respondent a permanent injunction on November 28, 1972. The court interpreted the complaint procedure outlined by
“. . . [A]fter a finding of probable cause has been made by the Commission under this statute, that the Commission has no further power to investigate or to subpoena documents except after the statutory notice has been given to the employer fоr a hearing pursuant to the plain and expressed terms of the statute.”
On appeal, the commission contends the district court erred in concluding the statutes limit the commission‘s use of its subpoena power to preliminary investigations to determine probable cause, and to subpoenaing witnesses and documents in connectiоn with hearings before the commission. The commission further contends it was error to enjoin its subpoena on the ground it was not issued in exercise of one of these functions. The question on appeal, then, is whether the complaint procedure outlined in
The authority undеr which the commission was investigating the respondent is provided in
“The commission shall have the following functions, powers and duties:
“(4) To receive, initiate, investigate, and pass upon complaints alleging discrimination in employment and public accommodations because of race, religion, color, national origin or anсestry.
“(5) To hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, or in connection with the investigation to require the production for examination of any books or papers pertinent to the proceedings, where а complaint has been properly filed with the commission. . . .”
Subsection (5) has been amended to provide other tools of discovery. (
“(5) To subpoena witnesses, compel their appearance, require the production for examination of records, documents and other evidence or possible sources of evidence and to examine, record and copy such materials and take and record the testimony or statements of such persons. The commission may issue subpoenas to compel access to or the production of such materials, or the appearance of such persons, and may issue interrogatories to a respondent to the same extent and subject to the same limitations as would apply if the subpoena or interrogatories were issued or served in aid of a civil action in the district court. . . .”
Respondent contends the 1972 amendment is significant because it deletes the phrase “pertinent to the proceedings” which tied the exercise of the commission‘s power to investigate and issue subpoenas, to the complaint procedure in
The district court has adopted respondent‘s interpretation, holding the complaint procedure authorizes investigations and the use of subpoenas in aid of investigation in three instances only: (1) To determine probable cause to credit an individual complaint; (2) as a preliminary requirement to filing a complaint by the commission; and (3) to obtain witnesses or documents for a formal hearing after setting a date for such hearing. The commission contends
The State of New York has a similar act against discrimination and when presented with the same question the court held the commission‘s subpoena power was not limited to use in the particular procedures outlined for conduct of complaint proceedings, but could be used in general informal investigations to enable the commission to carry out all its statutorily assigned duties. (Mtr. of Broido v. St. Comm. for Hum. Rgts., 40 N. Y. Misc. 2d 419, 243 N. Y. S. 2d 101.) The court said:
“. . . It cannot be argued from the fact that a particular procedure was outlined . . . in relation to verified complaints filed with the commission by claimant . . . and that such procedure includes the subpoena power, that the subpoena power does not exist in connection with the power to investigate into matters before the commission as covered by the provisions of section 295 of the Law Against Discrimination. . . .” (p. 421.)
New York Executive Law 295 referred to by the court is similar to
General tenets of administrative law recognize that an agency
“. . . [T]he heads of departments of government may compel the produсtion of evidence for purposes of investigation, without instituting formal proceedings against the one from whom the evidence is sought or filing any charges against him. As has been said by the United States Supreme Court, the power to make administrative inquiry is not derived from a judicial function but is more analogous to the power of a grand jury, which doеs not depend on a case or controversy in order to get evidence but can investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.’ . . .” (Brovelli v. Superior Court, supra, p. 529.)
The investigative and reporting duties assigned to the commission, when considered in the light of the statute‘s general purposes, lead us to the conclusion that the legislature did not intend to limit the exercise of the commission‘s investigatory powers to the preliminary stages of the complaint procedure outlined in
Respondent argues further in support of the injunction that it should be affirmed on the ground commission did not meet its burden of proving the records subpoenaed by them were relevant. This issue was not reached by the district court, but an appellee may supрort the judgment by any reason disclosed by the record. If the decision below is correct for any reason, it must be affirmed although the lower court relied upon a wrong ground or theory of the law. (Tripp v. The Reliable Life Insurance Co., 210 Kan. 33,
The respondent‘s contention that the documents need to be pertinent to a formal hearing is already discredited since we have hеld the commission‘s power to investigate and to subpoena does not depend upon the pendency of a formal complaint proceeding or hearing.
The respondent further contends the commission is under a burden to prove the relevancy of the subpoenaed employment records to prove or disрrove the specific acts of discrimination charged by the complainants, and the commission failed to meet that burden.
The weight of authority of administrative law refuses to apply the stringent relevancy requirements of subpoenas in aid of civil or criminal litigation to agency subpoenas. The test of relevancy we apрrove is set forth in Brovelli, supra, where it is held:
“. . . [I]t requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. (United States v. Morton Salt Co., supra, 338 U. S. 632, 651-654; Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 202 et seq. [66 S. Ct. 494, 90 L. Ed. 614 166 A. L. R. 531].)” (p. 529.)
In this case, the subpoena on its face states it is in furtherance of the complaints of Ferrell, Phillips, and Allen against Yellow Freight System, Inc., a subject within the commission‘s statutory authority. The documents subpoenaed are employment records and are clearly described.
Respondent further contends the employment histories of drivers hired since 1960 are not pertinent to the question of whether complainants were discriminated against since “layoff” depends uрon length of service or seniority of the employee and complainants were hired in 1968 and 1969. We do not know whether the employment records of the respondent from 1960 will disclose any criteria for arguing discrimination exists in “layoff” policies. The code of civil procedure provides upon application of one against whom a subpoena is issued the court may quash or modify a subpoena if it is unreasonable and oppressive. (
The subpoena of documents in furtherance of these complaints should lead to one of two possible actions by the commission: either the scheduling of a formal hearing, or dismissal of the complaints. Continuing investigation without hearing or dismissal resulting is burdensome to respondent, does not accomplish the purpose of the statute, and does not give complainants the relief afforded by the Act. The intent of the legislature is that once the complaint procedure is commenced it should lead to a final аdministrative decision and end with either dismissal or an enforceable order.
The judgment is reversed.
FATZER, C. J., dissenting: This case is another illustration of the need for this state to adopt a uniform administrative procedure act. As I read the statutes involved, the enabling section vests in the commission various powers, one of which is the power to subpoena, and it imposes upon the commission certain duties. (
After a complaint is received and investigated, a determination must be made as to whether probable cause exists for crediting allegations of the complaint. If probable cause shall be found to exist, the commission must attempt to eliminate the discriminatory practice by conciliatory efforts. When conciliatory efforts fail the “said commissioner or the commission shall cause to be issued and served in the name of the commission, a written notice, together with a copy of such complaint, as the same may hаve been amended, requiring the person, employer . . . named in such complaint . . . to answer the charges of such complaint at a hearing before at least four (4) commissioners . . . at a time not less than ten (10) days after the service of said notice.” As will be observed, there is nothing in the statute to support the statement in the majority оpinion that, “If conciliation fails or is not attempted, the commission may or may not schedule a formal public hearing on
The majority opinion is nothing less than a grant of unfettered authority to issue subpoenas for any employment records in the state in violation of the legislatively mandated procedural section. Adherence to orderly procedure is something the instant commission has apparently forgotten. Clearly, the exercise of subpoena power must be within “the rudimentary principles of justice.” (Federal Communications Commission v. Cohn, 154 F. Supp. 899, 908 [S. D. N. Y. 1957].)
I would affirm the district court‘s injunction.
KAUL, J., joins in the foregoing dissent.