Hutchinson Human Relations Commission v. Midland Credit Management, Inc.

• Decision Date: 08 December 1973
• Docket Number: No. 46938,46938
• Citation: Hutchinson Human Relations Commission v. Midland Credit Management, Inc., 213 Kan. 308, 517 P.2d 158 (Kan. 1973)
• Parties: , 13 Fair Empl.Prac.Cas. (BNA) 328, 6 Empl. Prac. Dec. P 9011 HUTCHINSON HUMAN RELATIONS COMMISSION, Appellant, v. MIDLAND CREDIT MANAGEMENT, INC., Appellee.
• Court: Kansas Supreme Court

Page 158

517 P.2d 158

213 Kan. 308, 13 Fair Empl.Prac.Cas. (BNA) 328,

6 Empl. Prac. Dec. P 9011

HUTCHINSON HUMAN RELATIONS COMMISSION, Appellant, v.MIDLAND CREDIT MANAGEMENT, INC., Appellee.

No. 46938.

Supreme Court of Kansas.

Dec. 8, 1973.

Syllabus by the Court

1.Legislative action to eliminate racial and other forms of discrimination from the body politic is a proper exercise of the police power.

2.Discrimination against racial and other minorities has a direct and detrimental impact on the public peace, order and tranquility of a community and the health, safety and general well-being of its residents.

3.The enactment of a municipal civil rights, anti-discrimination ordinance is a legitimate exercise of a city's police power as tending to promote the health, safety and general welfare of its citizens except it be in actual conflict with a statute or the field has clearly been preempted by the state.

4.Under the provisions of the Home Rule Amendment to the Kansas Constitution(Article 12, § 5), cities are empowered to determine their local affairs subject to the limitations set forth in the amendment.

5.Article 12, § 5(d) requires that a liberal construction be given the powers and authority granted cities by the amendment for the purpose of giving cities the fullest measure of self government.(Following Claflin v. Walsh, 212 Kan. 1, 509 P.2d 1130.)

6.An intent of the part of the legislature to retain exclusive jurisdiction to legislate in a given area must be clearly shown, and where such an intent cannot be gathered from the statutes themselves, whatever extrinsic evidence there may be of such an intention must be clear and convincing before the power to regulate can be said to have been withdrawn from cities.

7. K.S.A.1972 Supp. 44-1009(b) provides that it shall not be an unfair employment practice to fill vacancies in such a way as to eliminate or reduce imbalance with respect to race, color, sex, national origin or ancestry.

8.Where it is necessary in order fully to compensate victims of racial discrimination, correct past unfair labor practices or rectify existing racial imbalance resulting from past discriminatory patterns, hiring ratios or quotas may be imposed or required for limited periods of time.

9.The record is examined in an action for the specific enforcement of a conciliation agreement made between a municipal human relations commission created under a city ordinance and an employer against whom an unfair labor complaint had been lodged, and for reasons set forth in the opinion it is held: (1) The ordinance is not invalid as being beyond the authority of the city to enact.(2) The commission is not an aggrieved party in the sense of being entitled to recover monetary damages for breach of the agreement.(3) The agreement does not violate or contravene public policy as requiring 'discrimination in reverse.'(4) The action is not primarily one to enforce an obligation due a third-party beneficiary under the contract.(5) The agreement is not void as being based on an illegal consideration.

John A. Robinson, City Atty., argued the cause and was on the brief for appellant.

Lane H. Cronhardt, Hutchinson, argued the cause and was on the brief for appellee.

David L. Ryan, Topeka, argued the cause, and Vern Miller, Atty. Gen., Charles S. Scott and Roger W. Lovett, Topeka, were with him on the brief for Kansas Commission on Civil Rights, N. A. A. C. P., American G.I. Forum and Kansas Human Relations Ass'n, amici curiae.

F. Duane Roberts and Joseph W. Zima, Topeka, were on the brief for State of Kansas, ex rel. Darrell D. Carlton, State Labor Commissioner, amicus curiae.

FONTRON, Justice:

This is an action for specific performance of a 'conciliation agreement', and instrument prominently known in the field of civil rights.It is brought by the Hutchinson Human Relations Commission against Midland Credit Management, Inc.We shall refer to the parties as plaintiff or Commission, on the one hand, and defendant or Midland, on the other.During the pleading stage Midland filed a motion to dismiss, a motion for summary judgment, and an answer.The trial court granted the motion to dismiss and the Commission has appealed.

By way of background the City of Hutchinson, Kansas, first adopted a human relations ordinance in 1968.That ordinance was repealed in 1971 and the present ordinance, No. 6132, was adopted in its stead.Some time thereafter a complaint, which is not contained in the record, was lodged against Midland alleging an unfair employment practice in violation of the ordinance, and on March 3, 1972, the following agreement was entered into:

'THIS AGREEMENT is made and entered into as of the 3rd day of March, 1972, between the HUTCHINSON HUMAN RELATIONS COMMISSION, hereinafter referred to as the Commission, and MIDLAND CREDIT MANAGEMENT INC., hereinafter referred to as the Respondent.

'A complaint having been filed under Chapter 37, Section 37-6 of the Code of the City of Hutchinson, Kansas, by Mrs. Bobby Van Buren against Respondent, the Commission having found Probable Cause to credit the allegations of discrimination due to Respondent's failure to hire because of race.The matter having been conciliated, the parties hereby agree to and do settle the above matter in the following extent and manner:

'1.Respondent agrees that it is the stated policy of his company to offer employment and promotion in all positions to all persons regardless of race, sex, religion, color, national origin or ancestry.Respondent further agrees to communicate this policy, together with specific directives to assure it is carried out, to all his employees (or to all his supervisors) by written memo and to furnish the Commission with a copy of said memo.

'2.Respondent agrees to actively recruit and hire qualified minority people for positions in the office staff job classifications when the next vacancy occurs in this specific job area.

'3.(Deleted from agreement.)

'49 Respondent agrees that the Commission may, on its own motion, review compliance with the terms of the present agreement.

'5.The Commission agrees to close this case as a Satisfactory Adjustment, subject to the performance by the Respondent of the promises and representatives (sic) contained herein.

(Signatures are omitted.)'

On May 5, 1972, the instant action was filed.In brief, the petition alleges the making of the agreement as a result of a conciliation settlement; that about April 10, 1972, Midland placed an ad for a secretary in the Hutchinson News and on April 12 hired a white female secretary to fill the position; that Midland breached the agreement by failing to actively recruit and hire a minority person for the next existing vacancy; and that the breach was wilful, wanton and without just cause.The petition concludes with a prayer for specific performance of the contract or in lieu thereof for $500 damages and $1000 punitive damages.

In dismissing the plaintiff's lawsuit the trial court, in a well-prepared memorandum opinion, summarized its reasons for doing so under four categories: (1) The ordinance exceeds the police power granted cities.(2) The ordinance empowers the Commission to seek specific performance only, not damages for breach of contract.(3) The agreement is contrary to public policy in that an employer would be forced to hire a lesser qualified black than a better qualified white.(4)(a) Specific performance of an illegal agreement is improper.(b) Generally, equity will not specifically enforce a contract involving a breach of duty to a third party.(c) An agreement made in consideration of preventing or refraining from prosecution for crime is against public policy.(d) To compel Midland to discharge a white employee and hire a minority person could be an unlawful employment practice.

In its statement of points the Commission asserts that the trial court erred in dismissing the action on the several grounds assigned.We shall discuss the points raised on appeal in the sequence summarized by the trial court, but before doing so, we pause to point out certain provisions of the Hutchnson ordinance deemed material.It provides for a Human Relations Commission of seven resident Hutchinson citizens who are to be appointed by the mayor with the consent of the city governing body.Among the functions, duties and responsibilities enumerated in section 37.4 of the ordinance, the Commission is given authority (1) to receive, initiate, investigate, pass upon and attempt to conciliate all complaints alleging discrimination, segregation or separation in employment, in public accommodations or in public housing because of race, religion, color, national origin or ancestry; (2) to apply to the district court, after a complaint has been filed, to enjoin violation of the ordinance; and (3) to apply to the district court for enforcement of any conciliation agreement by seeking specific performance of the agreement.The ordinance also contains a section setting out complaint procedures, and other sections defining unlawful employment, public accommodations and housing procedures.

The first point for consideration is whether the city of Hutchinson, by enacting the ordinance, has acted within-or in excess of-its police power.This point encompasses, as well, questions relating to conflict with Kansas statutes and preemption of civil rights matters by the state.

The ordinance itself declares it to be the policy of the city in the exercise of its police power for the protection of the public safety, public health and general welfare, for the maintenance of business and good government and for the promotion of the city's trade and commerce to eliminate and prevent discrimination, segregation or separation because of race, sex, religion, color, national origin or ancestry, and to assure equal opportunities and encouragement to every person in securing employment, equal public accommodations and equal...