Kansas Commission on Civil Rights v. Sears, Roebuck & Co.

Decision Date01 March 1975
Docket NumberNo. 47405,47405
Citation532 P.2d 1263,216 Kan. 306
PartiesKANSAS COMMISSION ON CIVIL RIGHTS, Appellee, v. SEARS, ROEBUCK AND COMPANY, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from a final decision of a district court in any action except in an action for recovery of money where the amount in controversy does not exceed $500.

2. A principal objective of the Kansas Act Against Discrimination is to eliminate and prevent discrimination, segregation or separation in places of public accommodations.

3. The practice of buying goods and merchandise on credit and paying the purchase price by installments has become so widespread and commonplace a custom that judicial notice may be taken of the practice.

4. The refusal of credit to a purchaser or a prospective buyer in connection with the retail sale of goods and merchandise on the basis of race, religion, color, sex, physical handicap, national origin or ancestry constitutes an unlawful discriminatory practice within the purview of the Kansas Act Against Discrimination. (K.S.A. 44-1001, et seq. (Weeks, 1973).)

5. In keeping with the broad policy of eradicating discrimination from our society, the term 'place of public accommodations' is interpreted to include those places of business which are held open to the general public and where members of the general public are invited to come for business purposes.

6. Stores, shops and other business establishments offering goods, facilities and accommodatins to the public are places of public accommodation within the meaning of the Kansas Act Against Discrimination.

7. The trend of modern authority is not to apply the rule of ejusdem generis in construing anti-discrimination statutes by restricting 'places of public accommodation' to such places as may be listed specifically in the statute.

8. The term 'place of public accommodation' as used in K.S.A. 44-1009(c)(1) (Weeks, 1973) is not limited or restricted to those businesses, facilities or accommodations which are especially enumerated in K.S.A. 44-1002(i) (Weeks, 1973).

9. The basic requirement of the constitution and of the courts is that an intrusion of a constitutional right is permissible if it is reasonable. The constitution only protects people from unreasonable intrusions into their privacy. (Following Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 531 P.2d 455.)

10. Where there is a significant encroachment upon personal liberty the state may prevail only on showing a subordinating interest which is compelling. A state statute, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in its application, is not invalid under the due process clause of the federal constitution. (Following Atchison, T. & S. F. Rly. C. v. Lopez, supra.)

11. The enforcement of a subpoena issued by the Kansas Commission on Civil Rights requiring disclosure by a retail merchant of persons to whom credit was extended, and their credit ratings, is not constitutionally impermissible as violating their rights of privacy. The public policy of the state as declared in the Act Against Discrimination requires that interests of the individuals affected be subordinated in order that discrimination in 'places of public accommodation' be ended.

12. Where it is determined that disclosure of subpoenaed information would not violate the constitutional rights of the parties affected, there is no basis for their maintaining an action for damages under 42 U.S.C. § 1983. (Following Atchison, T. & S. F. Rly. Co. v. Lopez, supra.)

13. Both the federal Fair Credit Reporting Act and its Kansas counterpart contain provisions imposing civil liability for the 'willful' or 'negligent' noncompliance with 'any requirements imposed' under those acts, but allowance is made for the furnishing or production of credit reports 'in response to the order of a court having jurisdiction to issue such an order.'

14. Where records of a confidential character are produced in court in response to a subpoena or other process, the court is vested with authority to conduct an 'in camera' examination and issue such protective orders as it deems advisable to keep the information from prying eyes and to prevent its misuse.

Mark L. Bennett, Topeka, argued the cause, and Clayton M. Davis and Mark L. Bennett, Jr., Topeka, were with him on the brief for appellant.

Charles S. Scott, Topeka, argued the cause, and Curt T. Schnieder, Atty. Gen., and Roger W. Lovett, Topeka, were with him on the brief for appellee.

FONTRON, Justice:

On February 16, 1973, William V. Minner filed a complaint with the Kansas Commission on Civil Rights, herein called the commission, complaining of a discriminatory practice by Sears, Roebuck and Company, hereafter referred to as Sears or defendant, in refusing him credit because he was black, in violation of K.S.A. 44-1009(c)(1) (Weeks, 1973). Thereafter, and on November 28, 1973, the commission issued a subpoena duces tecum to Mr. Loyd Reynolds, the credit manager of the Sears store in Topeka, directing him to produce the following:

'1. List of persons who applied and received credit thirty (30) days prior to January 6, 1973, and thirty (30) days after, also any rating your company may have received from any credit bureau on these persons.

'2. List of persons who applied and were denied credit thirty (30) days prior to January 6, 1973, and thirty (30) days after, also any rating your company may have received from credit bureau on these persons.'

Sears did not comply with the subpoena, and the commission filed an action in the district court of Shawnee County, under the provisions of K.S.A. 44-1004(5) (Weeks, 1973), to secure an order directing Mr. Reynolds to produce the subpoenaed documents forthwith or to show cause why he should not be punished for contempt. On December 12, 1973, the district court issued an ex parte order directing Reynolds to produce the records for examination by an authorized representative of the commission or, in the alternative, to show cause why he should not be held in contempt.

Sears responded with a motion to quash the subpoena and to set aside the court's ex parte order. In its motion Sears alleged (1) it would be unduly burdensome to produce the lists within the time allotted; (2) that records of persons denied credit during the 60-day period involved had been destroyed; (3) the information was confidential, and could be waived only the individuals concerned; and (4) the commission had no jurisdiction in the matter.

After a hearing, the trial court sustained the defendant's motion to quash as to the records of those persons who were denied credit, but otherwise overruled the motion. Sears has appealed. There is no cross-appeal.

At the outset, mention need be made concerning a matter of appellate procedure. In overruling, in part, the defendant's motion to quash, the trial court made a finding that its order involved a controlling, question of law as to which there was substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation. Sears thereupon applied for leave to take an intermediate appeal pursuant to the provisions of K.S.A. 60-2102(b) (Corrick, 1964) and Supreme Court Rule No. 5. (214 Kan. xxii.) This court granted permission to take an intermediate appeal, and directed the parties to brief the 'jurisdictional question as to whether the Supreme Court can entertain this appeal.' Accordingly, both parties have briefed and argued the jurisdictional question relying on the assumption that the appeal is intermediate in character.

We have come to the conclusion, however, that this court, and the trial court, as well as the parties, were mistaken in viewing the appeal as intermediate. Our error may have been due in part to the caption given the case in district court, i.e., Mr. William V. Minner v. Sears, Roebuck and Company, but the collective eyes of this court should have been keen enough to have detected the misnomer.

This action was initiated by the commission to force compliance with its subpoena. Mr. Minner did not file this lawsuit; he merely filed the complaint which is before the commission. The only relief sought in this lawsuit is to compel Sears to comply with the subpoena. This lawsuit has nothing to do with the merits of Minner's complaint; it is the commission which ultimately must investigate and determine the merits of the complaint in the first instance. The only issue before the trial court was whether Sears, through its credit manager, should be required to comply with the commission's subpoena. The district court ruled on that issue, and that issue alone. The court overruled Sears' motion to quash, and ordered Sears to comply therewith in substantial part. That ruling, as we see it, is in effect a final order-it effectively disposed of the only issue before the trial court.

Since the court's order overruling Sears' motion to quash and directing Sears to produce the records is, in our opinion, 'a final decision' within the purview of K.S.A. 60-2102(a)(4) (Corrick, 1964), it was appealable as a matter of right. Accordingly, we consider the appeal as properly before us and we accept it as such.

Finally, we will gingerly flex our judicial muscle by amending the appellate title to reflect the proper parties to the lawsuit. In so doing we recognize that we impinge on the mandate of our own rule, 6(q), (214 Kan. xxvi), that appeals shall bear the same title here as in district court.

Having disposed of the peripheral procedural problem we pass on to matters of substance. Sears presents two basic issues on appeal. The first, in its words, is whether the commission had authority of jurisdiction to issue the subpoena. Or, to put the question in a somewhat different...

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16 cases
  • State v. Genson, No. 121,014
    • United States
    • Kansas Court of Appeals
    • 18 décembre 2020
    ...an arbitrary or capricious in application, are not invalid under the Due Process Clause." ’ " Kansas Commission on Civil Rights v. Sears, Roebuck & Co. , 216 Kan. 306, 318, 532 P.2d 1263 (1975) ; see also Brown v. Wichita State University , 219 Kan. 2, 21, 547 P.2d 1015 (1976) (noting that ......
  • Hernandez v. Pistotnik
    • United States
    • Kansas Court of Appeals
    • 23 juillet 2021
    ...the retailer to produce the records was a "final decision" appealable as a matter of right. Kansas Commission on Civil Rights v. Sears, Roebuck & Co. , 216 Kan. 306, 309, 532 P.2d 1263 (1975)."The only issue before the trial court was whether Sears, through its credit manager, should be req......
  • Johnson v. Kan. Dep't of Revenue
    • United States
    • Kansas Court of Appeals
    • 17 juillet 2020
    ...not an arbitrary or capricious in application, are not invalid under the Due Process Clause. Kansas Commission on Civil Rights v. Sears, Roebuck & Co. , 216 Kan. 306, 318, 532 P.2d 1263 (1975) ; see also Brown v. Wichita State University , 219 Kan. 2, 21, 547 P.2d 1015 (1976) (noting that w......
  • Seabourn v. Coronado Area Council, Boy Scouts of America
    • United States
    • Kansas Supreme Court
    • 10 mars 1995
    ...to the general public and where members of the general public are invited to come for business purposes.' Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306 Syl. 5, 532 P.2d 1263. The court in this case further stated by way of illustration 'stores, shops, and other bus......
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1 books & journal articles
  • Does Membership Have Its Privileges? the Limits on Permissible Discrimination in Private Clubs
    • United States
    • Kansas Bar Association KBA Bar Journal No. 60-06, June 1991
    • Invalid date
    ...supra at § II. B. 1.). [FN116]. 87 Op. Att'y Gen. 96 (1987). [FN117]. Quoting, Kansas Comm'n on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 313, 532 P.2d 1263 (1974). See also K.S.A. 44-1006 ("the provisions of this act shall be construed liberally for the accomplishment of the purp......

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