Kansas Commission on Civil Rights v. Carlton, 47612

Citation216 Kan. 735,533 P.2d 1335
Decision Date05 April 1975
Docket NumberNo. 47612,47612
Parties, 14 Fair Empl.Prac.Cas. (BNA) 122, 9 Empl. Prac. Dec. P 10,105 The KANSAS COMMISSION ON CIVIL RIGHTS, Appellant, v. Darrell D. CARLTON, State Labor Commissioner, Appellee.
CourtUnited States State Supreme Court of Kansas
Syllabus by the Court

1. The executive director of the Kansas commission on civil rights may sign subpoenas issued by the commission under K.S.A. 1974 Supp. 44-1004(5).

2. The provisions of K.S.A. 1974 Supp. 60-304(d), directing that service of summons shall be had upon the state or any governmental agency of the state, when subject to suit, by delivering a copy of the summons and petition to the attorney general or an assistant attorney general, are not applicable to a subpoena issued by the Kansas civil rights commission pursuant to K.S.A. 1974 Supp. 44-1004(5) for service upon the state labor commissioner.

3. While investigating complaints of discriminatory employment practices the Kansas commission on civil rights is a public employee in the performance of its public duties within the meaning of the exception as to confidentiality of information stated in K.S.A. 1974 Supp. 44-714(f).

4. Under K.S.A. 1974 Supp. 44-1004(5) a district court has discretion as to whether notice and right to be heard shall be given a respondent of the filing of an application by the Kansas commission on civil rights for an order directing compliance with a subpoena issued by it.

5. The test of relevancy to be applied for documents subpoenaed by the Kansas commission on civil rights is, the inquiry must be one which the commission is authorized to make, the demand for production must not be too indefinite and the information sought must be reasonably relevant.

6. Where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry.

7. A district court has power to modify a subpoena duces tecum issued by the Kansas commission on civil rights and thus remove any objectionable features from it while preserving the remainder.

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

F. Duane Roberts, Topeka, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an appeal from a district court judgment denying the application of the Kansas commission on civil rights for an order directing the state labor commissioner to comply with a subpoena duces tecum issued by the civil rights commission.

The proceeding grows out of a complaint filed April 20, 1972, with the KCCR by Beulah Van Buren, a black American, wherein she alleged that the job opportunity center at Hutchinson had discriminated against her because of her race in its job referral practices, in violation of the Kansas act against discrimination (K.S.A. 44-1001 et seq., as amended). The job opportunity center is an agency of the employment security division, state labor department, established to provide employment office services to the public. The same complaint by Mrs. Van Buren had been the subject of litigation in Reno county under an ordinance of the city of Hutchinson, which litigation was on appeal to this court while this proceeding was pending in the trial court and was decided December 8, 1973 (City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P.2d 117).

During the course of its investigation of the complaint with which we are here concerned, and on February 9, 1973, the KCCR issued a subpoena duces tecum upon appellee Darrell D. Carlton, state labor commissioner and chief officer of the state labor department. This subpoena, issued pursuant to autority granted the KCCR by K.S.A. 1974 Supp. 44-1004(5) was served upon Mr. Carlton by leaving a copy with a secretary in his office. The subpoena duces tecum requested the following items:

'1. Complainant's Kansas State Employment Service #511 Card or application card to the Kansas State Employment Service, Hutchinson Job Opportunity Center. All Kansas State Employment Service #511 Cards of persons who were referred to the jobs that the Complainant was referred.

'2. Test scores of Complainant and test scores of all applicants referred to the same job and/or jobs that former was referred.

'3. All job orders received by Kansas State Employment Service, Hutchinson Job Opportunity Center from six months prior to the Complainant's first application to January 19, 1972. These job orders shall include job bank and local job orders that were received by the Hutchinson Job Opportunity Center.

'4. Records or computer read-outs for the year January 1971 to January 1972. These read-outs shall show the number of referrals, number of disadvantaged referrals, number of placements. Also, this read-out information shall show the number of referrals to $1.00 to $1.50 an hour jobs; $1.50 to $2.00 an hour jobs; $2.00 to $2.50 an hour jobs; $2.50 to $3.00 an hour jobs; $3.00 to $3.50 an hour jobs and $3.50 an hour and up jonbs. This shall include the number of minority referrals to each category and total number of referrals in each category as well.

'5. Testimony from employees of Hutchinson Job Opportunity Center, Kansas State Employment Service who referred the Complainant to the various business establishments mentioned in the complaint.'

Mr. Carlton did not comply with the subpoena and on February 23, 1973, the KCCR initiated the present proceeding by filing an application in the trial court pursuant to 44-1004(5) for an order directing Mr. Carlton to comply with it. The KCCR sought an ex parte order on the date the application was filed; however, the trial court declined to issue such an order and directed that the labor commissioner be given notice of the filing of the application and an opportunity of being heard upon it. The commissioner responded with a variety of motions seeking to avoid the issuance of a compliance order. He also filed an answer in which he asserted the application was not made by the real party in interest in that it should have been made by the investigating commissioner; that no claim upon which relief could be granted had been stated; that improper service had been had upon him and the court had no jurisdiction because service had not been had upon him as a state officer by service upon the attorney general. He also alleged items three and four of the subpoena were immaterial and irrelevant and that item five asked for testimony of employees of the Hutchinson job opportunity center. Additionally Mr. Carlton filed a 'third party complaint' asking that the members of the KCCR be enjoined from proceeding further until the city of Hutchinson case pending before this court was decided-this on the assertion that under the doctrine of concurrent jurisdiction the district court of Reno county had obtained primary jurisdiction over the entire matter concerning Mrs. Van Buren's complaint of discrimination. The trial court heard the matter and on June 18, 1973, rendered its decision in a memorandum opinion. It sustained a motion by the KCCR to strike the third party complaint. It ruled that although an ex parte order had been requested it was vested with discretion to require notice and hearing before requiring compliance with a subpoena issued by the KCCR; that service of such a subpoena must be made on the party required to respond and K.S.A. 1974 Supp. 60-304(d) requiring service of summons upon state agencies to be made on the attorney general was not applicable; that the Reno county action was brought under the limited provisions of a city ordinance and the Reno county district court was not in a position to determine the whole controversy nor afford complete relief, by reason of which the priority principles of concurrent jurisdiction were inapplicable; that items one and two of the subpoena duces tecum were proper; that items three and four were overbroad, oppressive and unreasonable, and that item five was too broad unless modified; that the trial court did not have power to modify the subpoena and because portions of it were too broad, the application for an order directing compliance had to be denied. The trial court rendered judgment accordingly.

The KCCR appealed from the rulings adverse to it and the labor commissioner filed notice of cross-appeal from those adverse to him. However, the latter failed to perfect his cross-appeal and it was dismissed by the trial court.

Before dealing with appellant KCCR's points upon appeal certain procedural matters urged by appellee-state labor commissioner in support of the trial court's judgment should be considered.

Appellee renews his contention the subpoena was defective because it was signed by the executive director of KCCR rather than an investigating commissioner who had responsibility for the investigation of the particular complaint. K.S.A. 1974 Supp. 44-1004(5) simply provides that the commission may issue subpoenas, etc. There is not statutory requirement that a subpoena shall be issued or signed by an investigating commissioner or any other particular type of commissioner or officer. The subpoena here was in the name of the Kansas commission on civil rights, signed by its executive director, Anthony D. Lopez. The executive director is a statutory officer whose duties with KCCR are fulltime (K.S.A. 1974 Supp. 44-1003). From the nature of the position signing a subpoena issued by the commission manifestly would be included among his functions as the commission might prescribe. Appellee's contention is without merit. Nothing said herein should be construed to mean that no one other than the executive director of KCCR may properly sign subpoenas issued pursuant to 44-1004(5).

Appellee contends the subpoena duces tecum was invalid because it was not served upon the...

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5 cases
  • Collingwood Grain, Inc., Matter of, 71465
    • United States
    • United States State Supreme Court of Kansas
    • 10 Marzo 1995
    ...duces tecum in its investigation of an employment discrimination complaint, and the KDR further cites Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P.2d 1335 (1975). The rules of law these cases set forth are summarized as follows: "The law refuses to apply the stringent r......
  • Cessna Aircraft Co. v. Kansas Commission on Civil Rights, 51646
    • United States
    • United States State Supreme Court of Kansas
    • 17 Enero 1981
    ...to the statute, this court again had an opportunity to examine the subpoena powers of the KCCR. In Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P.2d 1335 (1975), this court applied the test enunciated in Yellow Freight, "In Yellow Freight System, Inc. v. Kansas Commission......
  • Banach v. State Commission on Human Relations, 133
    • United States
    • Court of Appeals of Maryland
    • 14 Abril 1976
    ...would execute such papers on behalf of the commission when such issuance has been authorized. Cf. Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P.2d 1335, 1338-39 (1975). Nothing in § 14(d) requires the individual members of the commission to sign all subpoenas issued in i......
  • State ex rel. Wolgast v. Schurle
    • United States
    • Court of Appeals of Kansas
    • 24 Julio 1986
    ...622 P.2d 124 (1981); KCCR v. Sedgwick County Mental Health Clinic, 220 Kan. 653, 556 P.2d 180 (1976); Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 741, 533 P.2d 1335 (1975); Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975); Atchiso......
  • Request a trial to view additional results

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