Banach v. State Commission on Human Relations

• Decision Date: 14 April 1976
• Docket Number: No. 133,133
• Citation: 356 A.2d 242,277 Md. 502
• Parties: , 30 Fair Empl.Prac.Cas. (BNA) 1829, 11 Empl. Prac. Dec. P 10,903 John J. BANACH et al. v. STATE of Maryland COMMISSION ON HUMAN RELATIONS.
• Court: Maryland Court of Appeals

Page 502

277 Md. 502

356 A.2d 242, 30 Fair Empl.Prac.Cas. (BNA) 1829,

11 Empl. Prac. Dec. P 10,903

John J. BANACH et al. v. STATE of Maryland COMMISSION ON HUMAN RELATIONS.

No. 133.

Court of Appeals of Maryland.

April 14, 1976.

Francis D. Murnaghan, Jr., Baltimore (Nell B. Strachan, Baltimore, on the brief), for appellants.

Philip J. Tierney, Gen., Counsel, Baltimore (Jacob J. Edelman and Edelman, Levy & Rubenstein, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, ^* JJ.

LEVINE, Judge.

This appeal stems from a proceeding to enforce a subpoena duces tecum issued by the State of Maryland Commission on Human Relations (the commission) directing the A. S. Abell Company, publisher of the Baltimore Sun newspapers, and its personnel manager (collectively referred to herein as appellants) to produce certain employment records in connection with a preliminary investigation then being conducted by the commission into alleged discriminatory practices. When appellants failed to produce the records on the designated date, the commission successfully petitioned the Circuit Court of Baltimore City (Ross, J.) for an order requiring compliance with the subpoena. After an appeal was taken from that order, we granted a writ of certiorari prior to a consideration of the case by the Court of Special Appeals. We affirm.

Between October 1973 and August 1974, four persons filed complaints with the commission alleging various discriminatory practices by appellants in their employment policies. Allegations in the complaints ran the gamut from specific instances of discrimination based on sex, race and religion to general charges made on behalf of certain groups or classes. These complaints were brought to the attention of appellants in November 1974 when they apparently received copies from the commission together with requests for information pertaining to personnel policies. When the requests were not met to the satisfaction of the commission, one of its staff nembers forwarded an 'interrogatory,' containing a series of questions, in connection with each of the complaints. Appellants, through counsel, objected at this point to the requests for information, primarily on the grounds that the four complaints were couched in general and conclusory language and thus failed to comply with the statutory requirement that 'the particulars' of each complaint be set forth. ¹ Appellants' objections triggered an elaborate exchange of correspondence between their counsel and counsel for the commission in which each outlined at great length the merits of his client's position. Commission counsel at one point proposed as an alternative that, if response to the interrogatories appeared too burdensome to appellants, an investigative unit be permitted 'a site inspection,' which might include 'a review of relevant files and interviews with company officials.' Appellants declined this offer on the basis that, in any event, inadequate particluarization of the charges prevented 'preparation' for the suggested site inspection.

Ultimately, the chairman authorized in writing 'a preliminary investigation' pursuant to Maryland Code (1957, 1972 Repl.Vol.) Art. 49B, § 12(b), citing receipt by the commission of 'reliable information' that appellants 'ha(d) been engaged, or (are) engaging in discriminatory practices within the scope of Article 49B . . ..' ² When a renewed request to obtain the previously sought information proved unsuccessful, the chairman signed the subpoena duces tecum which precipitated this dispute. The subpoena directed appellants to produce an assortment of records and documents relating to their recruitment, hiring and promotion policies. When appellants refused to comply with the subpoena, the commission filed a petition in the circuit court recounting the efforts that had been made to obtain the desired information and requesting enforcement.

In ordering production of the documents sought in the subpoena, Judge Ross interpreted § 14(d) of Art. 49B as authorizing the use of subpoenas in the preliminary investigation stage preceding the issuance of a formal complaint. Appellants attack this decision on three grounds:

I That the commission lacks the power to issue subpoenas in connection with a preliminary investigation conducted pursuant to § 12(b) of Art. 49B and prior to the filing of a formal complaint.

II That absent compliance with the requirement of particularity applicable to complaints of alleged discrimination, the commission cannot compel production of documents by subpoena.

III That § 12(b) requires a determination, which was not made here, that the information received by the commission is 'reliable' before it can initiate a preliminary investigation.

I

In Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 90 L.Ed. 614 (1946), the Supreme Court articulated a threefold test for determining the validity of a subpoena issued by an administrative agency: Whether the inquiry is authorized by statute, the information sought is relevant to the inquiry, and the demand is not too indefinite or overbroad. It is the first requirement, statutory authority, that appellants contend is lacking here. They maintain that the subpoena power of the commission does not extend to a preliminary investigation, but is available only for an investigation conducted pursuant to § 13 or in connection with a hearing under § 14 of Art. 49B following the issuance of a formal complaint, i. e. a complaint which is sufficiently particularized. ³ That the Legislature may validly confer upon administrative agencies such as the Human Relations Commission the power to compel production of information for purposes of preliminary investigation is well settled. United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 94 L.Ed. 401 (1950); Vulcan, Inc. v. Md. Home Imp. Comm'n, 253 Md. 204, 210, 252 A.2d 62 (1969). We look first, then, to the applicable statute to determine whether it authorizes issuance of the subpoena duces decum in question here. Section 14(d) of Art. 49B, entitled 'Power of Commission to administer oaths, etc.; subpoenas,' provides in relevant part:

'In the administration and enforcement of the provisions of these several subtitles, the Commission has power to administer oaths and to issue subpoenas, to compel the attendance and testimony of witnesses and the production of books, papers, records and documents relevant or necessary for proceedings under the particular subtitle. . . .' (emphasis added).

The statute then provides that enforcement of a subpoena, in the event of refusal to comply, may be sought in the circuit court, which, upon a finding that the matters or documents sought are 'relevant or necessary for the proceedings of the Commission,' may compel obedience under the penalty of contempt. (emphasis added). ⁴ Appellants advance two arguments in support of their contention that § 14(d) does not contain the authority attributed to it by the commission. First, they say, the subpoena power is granted only to the commission itself, whereas it is the commission's staff that is authorized by § 12(b) to conduct the preliminary investigation for which the subpoena is sought here. The short answer to this argument is that it was the commission chairman, who, after authorizing the preliminary investigation in accordance with § 12(b), signed the subpoena duces tecum on behalf of the commission. Thus it is the commission, not its staff, which authorizes the issuance of subpoenas in connection with preliminary investigations. As the presiding officer of the commission, and the only member permitted by law to be compensated for his services, the chairman was logically contemplated by the Legislature to be the person who would execute such papers on behalf of the commission when such issuance has been authorized. Cf. Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P.2d 1335, 1338-39 (1975). Nothing in § 14(d) requires the individual members of the commission to sign all subpoenas issued in its name.

Secondly, it is argued that the only 'proceedings' for which subsection (d) authorizes subpoenas are the investigation prescribed by § 13 and the § 14 hearing. This contention that the subpoena power is limited to the post-complaint investigation and hearing stages finds no support in the language of § 14(d) itself. First, the opening sentence, 'In the administration and enforcement of the provisions of these several subtitles,' suggests a distinction between the 'administrative' and 'enforcement' functions of the commission. Since only §§ 12-16 of Art. 49B are grouped under the 'enforcement' subtitle, the General Assembly apparently intended to extend the use of subpoenas even to areas beyond enforcement investigations and hearings. One such area is suggested by § 3 which empowers the commission, '(w)henever any problem of racial discrimination arises, (to) hold an investigatory hearing' for the purpose of promptly resolving the problem 'by the gathering of all the facts from all the interested parties and making such recommendations as may be necessary.' The 'enforcement' subtitle, in any event, is merely one of five subtitles contained in Art. 49B.

Even more significant, in terms of the statutory language, is the use of the word 'proceedings' in § 14(d) rather than 'hearings.' In our view, this further reflects an intent on the part of the Legislature to authorize subpoenas beyond the narrow limits urged by appellants. Administrative investigations, a vital part of the administrative function, are commonly referred to as 'proceedings.' See 1 K. Davis, Administrative Law § 3.01 (1958). The word 'proceedings' is a term of broad scope, encompassing both the investigative and adjudicative functions of an administrative agency. United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S....