Dobbs Houses, Inc. v. Brooks, 44646

• Decision Date: 07 September 1982
• Docket Number: No. 44646,44646
• Citation: 641 S.W.2d 441
• Parties: DOBBS HOUSES, INC., A Delaware Corporation, Plaintiff-Respondent, v. Alvin L. BROOKS, Bill Beemont, Marie Burrow, Frank J. Cason, Jean Collins, Samuel Houston, Joan Krauskopf, Joy Lieberman, Jerry Puchta, Donald E. Rau, and John Al Rodriguez, Members of Missouri Commission on Human Rights; and Missouri Commission on Human Rights, a State Agency; and Phillip J. Hoskins, Hearing Examiner, Missouri Commission on Human Rights; and John Ashcroft, Attorney General, State of Missouri, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 441

641 S.W.2d 441

DOBBS HOUSES, INC., A Delaware Corporation, Plaintiff-Respondent, v. Alvin L. BROOKS, Bill Beemont, Marie Burrow, Frank J. Cason Jean Collins, Samuel Houston, Joan Krauskopf, Joy Lieberman Jerry Puchta, Donald E. Rau, and John Al Rodriguez, Members of Missouri Commission on Human Rights and Missouri Commission on Human Rights, a State Agency and Phillip J. Hoskins, Hearing Examiner, Missouri Commission on Human Rights; and John Ashcroft, Attorney General, State of Missouri, Defendants-Appellants.

No. 44646.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 7, 1982.

Motion for Rehearing and/or Transfer

Denied Oct. 15, 1982.

John Ashcroft, Atty. Gen., Scott A. Woodruff, Asst. Atty. Gen., Jefferson City, for defendants-appellants.

Thomas C. Walsh, David S. Slavkin, St. Louis, Mo., for plaintiff-respondent.

SNYDER, Judge.

This is an appeal from an action in which the plaintiff, Dobbs Houses, Inc., sought a declaratory judgment on whether its Equal Employment Opportunity Affairs manager, who is not an attorney, could represent it before the Missouri Commission on Human Rights (Commission). The circuit court of St. Louis County ruled in favor of Dobbs Houses, Inc. The Commission and other parties-defendant appealed. The judgment is reversed.

On November 13, 1979, Phillip H. Hayman filed a complaint with the Missouri Commission on Human Rights alleging that his discharge by Dobbs Houses, Inc. was racially motivated. Following an investigation and attempts to conciliate the parties, the complaint was set for public hearing on March 18, 1981.

Dobbs Houses, Inc. sought permission to appear before the Commission and conduct its defense through Raymond C. Castro. Mr. Castro is the equal employment opportunity affairs manager for Dobbs Houses, Inc., and is not a licensed attorney. The hearing examiner denied the request.

On March 13, 1981, Dobbs Houses, Inc. sought a declaratory judgment in the circuit court of St. Louis County to determine whether Castro could represent Dobbs Houses before the Commission. The trial court ruled that Castro could represent the corporation before the Commission, in effect overruling a commission rule to the contrary. Members of the Commission and other parties-defendant appeal.

The primary issue here is whether a lay employee may represent a corporate respondent before the Commission. The key to the resolution of this issue is a determination of whether the Commission has the authority to promulgate a rule allowing only attorneys and individuals who are parties to appear before it.

The Commission is charged with the enforcement of the Discriminatory Employment Practices Act, Chapter 296 RSMo. 1978. The Commission is empowered by statute to conduct investigations, hold adversarial hearings and issue orders regarding the rights of parties upon the filing of employment discrimination complaints. § 296.030 RSMo. 1978. The Commission also has the authority to "adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of [chapter 296] and the policies and practices of the Commission in connection therewith." § 296.030.6 RSMo. 1978.

In accordance with that authority, the Commission had adopted the following rule:

"Only persons who are licensed attorneys admitted to practice in this state or permitted to practice in Missouri by the Missouri Supreme Court rules will be permitted to practice before the Commission. An individual who is a party may act as his own attorney." 4 CSR 180-2.060.1 (Emphasis added).

This rule, without more, would support the Commission hearing examiner in his ruling that Mr. Castro, a lay person, could not represent Dobbs Houses, Inc., a corporation, before the Commission.

Respondent, however, maintains that this rule conflicts with § 296.040.5 RSMo. 1978:

"The respondent may file a written verified answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony. At the discretion of the hearing examiner or the panel, the complainant may be allowed to intervene and present testimony in person or by counsel. The commission or the complainant shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend his answer. The testimony taken at the hearing shall be under oath and be transcribed." (Emphasis added).

In particular, the respondent claims that the words "in person or otherwise" authorizes the representation of a corporate respondent by a lay employee.

The statute is ambiguous as it applies to corporations. A corporation cannot appear in person. The word "otherwise" is not defined any further. Appearance does not necessarily mean appearance in a representative capacity. The ambiguity has been resolved by the Commission in its rules.

The Commission has interpreted § 296.040.5 to allow it, by rule, to prohibit a lay employee from representing a corporate respondent before it. See 4 CSR 180-2.060.1. This interpretation has strong support.

"Rules and regulations are to be sustained unless unreasonable and plainly inconsistent with the act, and they are not to be overruled except for weighty reasons ... The burden is on those challenging the rules to show that they bear no reasonable relationship to the legislative objective ... The interpretation and construction of a statute by an agency charged with its administration is entitled to great weight." Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 197[1-4] (Mo. banc 1972). The rule in question must be so at odds with fundamental principles as to be mere whim or caprice if it is to be overruled by the courts. Foremost-McKesson, Inc. v. Davis, supra at 200. Rule 4 CSR 180-2.060.1 is neither at odds with fundamental principles nor unreasonable.

The Missouri Courts have consistently held that a corporation cannot appear in a legal proceeding except by an attorney. See Clark v. Austin, 340 Mo. 467, 101...