Brooks v. Pool-Leffler, POOL-LEFFLE

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PUDLOWSKI; SMITH, P. J., and SATZ
• Citation: 636 S.W.2d 113
• Parties: Alvin BROOKS, Joy Lieberman, Bill R. Beemont, Samuel C. Houston, Joan Krauskopf, Jean Collins, Marie Burrow, Rev. Donald Rau, John Al Rodriguez, Jerry Puchta, and Frank J. Cason, individually and collectively known as the Missouri Commission on Human Rights, Plaintiffs-Appellants, v. Nancyice President and General Manager, KSHE, Inc., and KSHE, Inc., a corporation, Defendants-Respondents.
• Decision Date: 18 May 1982
• Docket Number: V,No. 44037,POOL-LEFFLE

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636 S.W.2d 113 Alvin BROOKS, Joy Lieberman, Bill R. Beemont, Samuel C.
Houston, Joan Krauskopf, Jean Collins, Marie Burrow, Rev.
Donald Rau, John Al Rodriguez, Jerry Puchta, and Frank J.
Cason, individually and collectively known as the Missouri
Commission on Human Rights, Plaintiffs-Appellants,
v.
Nancy POOL-LEFFLER, Vice President and General Manager,
KSHE, Inc., and KSHE, Inc., a corporation,
Defendants-Respondents. No. 44037. Missouri Court of Appeals, Eastern District, Division Four. May 18, 1982.
Motion for Rehearing and/or Transfer Denied June 18, 1982.

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John Ashcroft, Atty. Gen., Suzanne M. Boersig, Rosalynn Van Heest, Asst. Attys. Gen., Jefferson City, for plaintiffs-appellants.

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Valerie Held Rapp, St. Louis, for defendants-respondents.

PUDLOWSKI, Judge.

Appellant, the Missouri Commission on Human Rights (hereinafter the "Commission"), filed a petition to enforce an administrative subpoena duces tecum in the circuit court of St. Louis County. An order to show cause why the subpoena should not be enforced was entered by the circuit court against the respondent, KSHE, Inc., a radio station located in St. Louis County. KSHE filed an answer and memorandum with the circuit court in opposition to the enforcement of the administrative subpoena. The circuit court denied the petition and dismissed the cause.

The relevant facts are as follows. In September, 1978, an organization called the St. Louis Broadcast Coalition contacted the Commission and suggested that it investigate employment practices in the electronic media of St. Louis. There was apparently, no reference to or complaint about KSHE. The Commission accepted the suggestion and began its study of the St. Louis media early in 1979. One bureaucratic investigative technique employed by the Commission was the distribution of questionnaires to the various television and radio stations in the area. The questionnaires were to be answered by women and minority employees of the stations. The Commission sought information from these employees on employment history, salary and personal experience with employment discrimination.

On February 9, 1979 the Commission sent a set of the aforementioned questionnaires to KSHE. On February 19, KSHE contacted the Commission in an attempt to determine by what authority the Commission was conducting the investigation. The Commission responded on March 1, 1979 claiming that under §§ 296.030(1) and (9) RSMo (1978) ¹ the Commission was authorized to perform research for the purpose of minimizing, eliminating or preventing discriminatory employment practices. KSHE refused to cooperate with the Commission's study of the electronic media in St. Louis.

On April 21, 1980 the Commission filed a discrimination complaint against KSHE pursuant to § 296.030(7) and 4 CSR 180-2.010(1), Missouri Code of State Regulations. Section 296.030 is a general provision which specifies the powers and duties of the Commission. Paragraph (7) of this section provides that the Commission has the power, "to receive, investigate, initiate and pass upon complaints alleging discrimination in employment ...." § 296.030(7). Pursuant to this provision and the rule-making power under § 296.030(6), the Commission adopted 4 CSR 180-2.010(1). This regulation provides that the Commission "... may, sua sponte, issue a complaint whenever it has reason to believe an unlawful discriminatory practice is being followed." 4 CSR 180-2.010(1). On May 29, 1980, KSHE sought additional information from the Commission with respect to the factual basis for the complaint. The Commission responded that a study of work force characteristics ² for KSHE and the St. Louis area revealed statistical disparities for women and minorities in various job classifications. ³ The Commission went on to state that, "a formal investigation of the subject matter is being conducted to ascertain whether or not the disparate statistics are an indicator of discrimination." Finally, the Commission's response stated that, "our investigation will consist of gathering current statistics, interviewing personnel, and on-site observation toward making a finding." It is clear that the only basis for the complaint is the statistical

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disparity. ⁴ It is also clear that the complaint was filed by the Commission to facilitate its investigation of KSHE, which is merely one part of the Commission's larger investigation of the electronics media in the St. Louis area.

After the complaint was filed the Commission sent interrogatories and other requests for information to KSHE. By letter dated August 25, 1980, KSHE refused to provide any of the requested information. On September 22, the Commission issued an administrative subpoena duces tecum commanding the vice-president and general manager of KSHE, Nancy Pool-Leffler, to appear at the offices of the Commission with the employment and personnel records of KSHE. KSHE refused to comply with the subpoena. In October, 1980, the Commission filed a petition for an order to enforce the administrative subpoena in the circuit court of St. Louis County.

KSHE raised four arguments in opposition to the Commission's petition. First, KSHE asserts that the administrative subpoena was issued by the Commission as part of an investigation which is beyond the statutory authority of the Commission, because no valid discrimination complaint was filed. Second, KSHE claims that the investigation, and thus the subpoena is prohibited because the discrimination complaint was not filed within the time prescribed by statute. Third, KSHE argues that the complaint is so ambiguous it is impossible to determine the relevance of the information sought through the subpoena. Fourth, KSHE contends that the subpoena is void on its face for lack of specificity. After a hearing on the Commission's petition, the circuit court denied the petition and dismissed the cause without specifying the basis for its action. This appeal followed.

The relevant facts in this matter are not in dispute. All the facts were presented to the circuit court in documents filed with the court. Trial was before the court, and there was no conflicting testimony to consider. In essence the hearing was upon stipulated facts, and the judgment of the circuit court will be affirmed unless the court erroneously declared the law, or erroneously applied the law to the facts. Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The circuit court did not specify its reasons for dismissing the Commission's petition. Our primary concern, however, is with the correctness of the result-not the route by which it is reached. Maryland Plaza Redevelopment v. Greenberg, 594 S.W.2d 284, 286 (Mo.App.1979). Thus, the trial court should be affirmed if it is correct upon any theory. Hathman v. Waters, 586 S.W.2d 376, 384 (Mo.App.1979). We affirm the decision of the trial court.

I

First we find that the Commission is not authorized by statute to issue a complaint sua sponte. In reaching our decision, we rely upon the language of the statute and sound principles of statutory interpretation.

It is well settled that the cardinal rule of statutory interpretation is to ascertain the intent of the lawmakers and give effect to that legislative purpose. Bank of Crestwood v. Gravois Bank, 616 S.W.2d 505, 510 (Mo. banc 1981). To ascertain the legislative intent, we must look to the words of the statute, and attribute to them their plain meaning. Id.; Kieffer v. Kieffer, 590 S.W.2d 915, 918 (Mo. banc 1979). Turning to the words of the statute in question we find that § 297.030 provides the powers and duties of the Commission. It states in part that the Commission has the power "to receive, investigate, initiate, and pass upon complaints alleging discrimination in employment ...." § 296.030(7) (emphasis added). This provision seems to indicate a legislative intent that the Commission have authority to file complaints on its own behalf. A problem arises, however, when we examine § 296.040, which specifies the procedure

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for filing, investigating and resolving discrimination complaints.

Section 296.040(1) provides that a complaint may be filed by: "any person claiming to be aggrieved by an unlawful employment practice ..., the complainant's agent or attorney, or the attorney general." The Commission is not mentioned. When a statute directs performance of specific acts by an enumerated class of persons, it implies that persons not included in said class have no authority to perform the act. Parvey v. Humane Society, 343 S.W.2d 678, 681 (Mo.App.1961); 82 C.J.S. Statutes § 333, pp. 667-668. In other words, the express mention of one thing implies the exclusion of another. Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 146 (Mo. banc 1980). In § 296.040(1) one state entity, is specifically authorized to file discrimination complaints-the attorney general. The clear inference is that the legislature did not intend to authorize the Commission to file discrimination complaints on its own behalf.

Looking to the plain language of the statute, there appears to be a conflict between § 296.030(7) and § 296.040(1). It is incumbent upon us to reconcile and harmonize the provisions in conflict if it is reasonably possible. Goldberg v. Administrative Hearing Comm., 609 S.W.2d 140, 144 (Mo. banc 1980). To this end we should give effect to the specific provision over the general, and reconcile the provisions with a view to effectuate the legislative purpose. Brooks v. Cooksey, 427 S.W.2d 498, 503 (Mo.1968).

Section 296.040 sets out in detail the method by which the Commission is to exercise its authority, and § 296.030 is a list of the powers and duties of the Commission. The former provision specifies the procedure for exercising the powers listed in the latter provision. There is no doubt that § 296.040 is the more specific, controlling provision. Thus, we...