California Restaurant Assn. v. Henning

• Decision Date: 31 October 1985
• Citation: 173 Cal.App.3d 1069,219 Cal.Rptr. 630
• Court: California Court of Appeals Court of Appeals
• Parties: , 27 Wage & Hour Cas. (BNA) 698 CALIFORNIA RESTAURANT ASSOCIATION, Plaintiff and Appellant, v. Patrick W. HENNING, et al., Defendants and Respondents. A019519.

Page 630

219 Cal.Rptr. 630

173 Cal.App.3d 1069, 27 Wage & Hour Cas. (BNA) 698

CALIFORNIA RESTAURANT ASSOCIATION, Plaintiff and Appellant, v. Patrick W. HENNING, et al., Defendants and Respondents.

A019519.

Court of Appeal, First District, Division 4, California.

Oct. 31, 1985.

Luken, St. Peter & Cooper, Joan G. Cullin, San Francisco, for plaintiff and appellant.

Louis P. Giannini, Chief Counsel, San Francisco, for defendants and respondents.

SABRAW, Associate Justice.

The sole question presented on this appeal is whether Labor Code section 93 is constitutional.

Plaintiff California Restaurant Association is a nonprofit corporation comprised of approximately 2,200 members who own and operate about 8,000 restaurants throughout the state. Defendant Patrick W. Henning (hereinafter referred to as "defendant" or "the Commissioner") is the state Labor Commissioner and chief of the Division of Labor Standards Enforcement in the Department of Industrial Relations. (Lab.Code, §§ 21, 56-57, 79.) ¹ The Division of Labor Standards Enforcement is responsible for enforcing orders of the Industrial Welfare Commission and for administering minimum labor standards concerning wages, hours, and working conditions. ( §§ 61, 1171 et seq.) The Commissioner is vested with the power to issue subpoenas to compel the attendance of witnesses and the production of books, papers, and records. ( §§ 74, 92.) ² Section 93, the statute at issue here, reads:

"Obedience to subpoenas issued by the Labor Commissioner, or his deputies or agents shall be enforced by the courts. It is a misdemeanor to ignore willfully such a subpoena if it calls for an appearance at a distance from the place of service of 100 miles, or less."

Plaintiff commenced this class action by filing a verified complaint for declaratory injunctive relief on behalf of its members and "all owners and operators of restaurants in California who are similarly situated." The gist of the complaint was that an actual controversy had arisen as to the constitutionality of the Commissioner's administrative practice of serving employers with subpoenas and subpoenas duces tecum and threatening criminal prosecution pursuant to section 93 for employer noncompliance. The Commissioner asserted that he was empowered to act without judicial review of the validity of his subpoenas. Plaintiff argued that section 93 is unconstitutional, on its face and as applied, because "it denies the protections against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 13 of the California Constitution" which "require that administrative subpoenas be subject to judicial review before a person refusing to comply may incur jeopardy of criminal prosecution or conviction." Plaintiff prayed for a judicial declaration that section 93 was unconstitutional, and an injunction restraining the Commissioner from threatening its use without first obtaining judicial review of subpoenas. In his answer to the complaint, the Commissioner admitted the existence of the controversy as alleged by plaintiff, and all other factual allegations.

The Commissioner and plaintiff each noticed a motion for summary judgment or judgment on the pleadings. The trial court denied plaintiff's motion and entered judgment in favor of the Commissioner by declaring that section 93 was constitutionally valid and fully enforceable on its face and as applied by the commissioner and further declared that section 93 did not deny Fourth Amendment rights.

Plaintiff thereafter filed a timely notice of appeal from the judgment.

Before proceeding to the merits of plaintiff's appeal, we first address the threshold question of whether the constitutional issue is properly before us. Obedient to the principle that courts should refrain from reaching constitutional issues unless absolutely unavoidable (see People v. Green (1980) 27 Cal.3d 1, 50, 164 Cal.Rptr. 1, 609 P.2d 468; People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66, 195 P.2d 1; Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 384, 188 Cal.Rptr. 897), we note that plaintiff's action for declaratory and injunctive relief is an acceptable means of challenging a statute's constitutionality. (Conover v. Hall (1974) 11 Cal.3d 842, 850, 114 Cal.Rptr. 642, 523 P.2d 682; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 678, 3 Cal.Rptr. 158, 349 P.2d 974; [text & fn. 2]; Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1014, 149 Cal.Rptr. 867; Lane v. City of Redondo Beach (1975) 49 Cal.App.3d 251, 255, 122 Cal.Rptr. 189.) The trial court obviously treated the matter as justiciable. (Cf. Code Civ.Proc., § 1061; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 23-24, 61 Cal.Rptr. 618.) The Commissioner's admissions of the factual allegations of plaintiff's complaint, particularly the allegations regarding the existence and nature of the dispute, eliminate all questions as to the propriety of declaratory relief. As observed in Abbott v. City of Los Angeles, supra, "With the pleadings so framed, the only issue before the trial court was the constitutionality of the [statute]." (53 Cal.2d 674 at p. 678, 3 Cal.Rptr. 158, 349 P.2d 974.) The only question being one of law, the dispute was appropriate for resolution by summary judgment. (Blackwell v. Phelps Dodge Corp. (1984) 157 Cal.App.3d 372, 376, 203 Cal.Rptr. 706; Schoderbek v. Carlson (1984) 152 Cal.App.3d 1027, 1032, 199 Cal.Rptr. 874.) We therefore conclude that the issue of the constitutionality of section 93 is properly before us.

Plaintiff contends that because "there exists no procedure under the Labor Code for testing the validity of a subpoena issued by the Labor Commissioner prior to incurring jeopardy of misdemeanor," a constitutionally required safeguard, "[s]ection 93 is therefore unconstitutional and unenforceable to the extent that it purports to make refusal to comply with a subpoena issued by the Labor Commissioner punishable as a misdemeanor."

Plaintiff's argument that section 93 is unconstitutional on its face requires plaintiff to surmount formidable obstacles before the trial court's judgment may be overturned. The brand of unconstitutionality is not lightly applied. " 'All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.' " (In re Dennis M. (1969) 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 450 P.2d 296; accord In re Ricky H. (1970) 2 Cal.3d 513, 519, 86 Cal.Rptr. 76, 468 P.2d 204; People v. Poggi (1980) 107 Cal.App.3d 581, 589, 165 Cal.Rptr. 758.) The difficulty is compounded when a statute is attacked as being unconstitutional on its face. In pressing such a claim, plaintiff "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute"; instead, plaintiff "must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181, 172 Cal.Rptr. 487, 624 P.2d 1215 [emphasis deleted]; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 674, 114 Cal.Rptr. 345, 522 P.2d 1345; 1 Sutherland, Statutory Construction (Sands 4th ed. 1972) § 2.06, p. 22.) With full appreciation of these principles we turn to the merits of plaintiff's contention that section 93 is unconstitutional.

The Commissioner's suggestion that subpoenas do not come within the purview of the Fourth Amendment ³ may be dismissed out of hand. The use of subpoenas and subpoenas duces tecum as an investigatory tool is an accepted and established part of the administrative process. (See generally Okla. Press Pub. Co. v. Walling (1946) 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; LaFave, Search and Seizure (1978) § 4.13; Benton, Administrative Subpoena Enforcement (1963) 41 Tex.L.Rev. 874.) Nevertheless, their intrusive nature is obvious. In recognition of this reality, subpoenas have been treated as constructive searches within the meaning of the Fourth Amendment ever since that provision was first judicially construed. (See See v. City of Seattle (1967) 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943; Okla Press Pub. Co. v. Walling, supra, 327 U.S. 186 at pp. 202-207, 66 S.Ct. 494 at pp. 502-505; Hale v. Henkel (1906) 201 U.S. 43, 76-77, 26 S.Ct. 370, 379-380, 50 L.Ed. 652; Boyd v. United States (1886) 116 U.S. 616, 622-635, 6 S.Ct. 524, 527-535 29 L.Ed. 746.) More than 20 years ago our Supreme Court treated this principle as established beyond dispute. Within the context of a challenge to an administrative subpoena, the court stated: "Of course, department heads cannot compel the production of evidence in disregard of the ... constitutional provisions prohibiting unreasonable searches and seizures." (Brovelli v. Superior Court (1961) 56 Cal.2d 524, 529, 15 Cal.Rptr. 630, 364 P.2d 462.) The same is true today. (See Barnes v. Molino (1980) 103 Cal.App.3d 46, 51-52, 162 Cal.Rptr. 786; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 674-675, 156 Cal.Rptr. 55.)

Judicial deference to administrative discretion and expertise is considerable. The general policy of noninterference is evidenced by the manner in which courts evaluate claims that an administrative subpoena infringes upon interests protected by the Fourth Amendment. Such direct attacks are seldom successful. The Fourth Amendment is satisfied if the subpoena (1) relates to an inquiry which the administrative agency is authorized to make; (2) seeks information reasonably relevant to that inquiry; and (3) is not too indefinite. (See ...