Kansas Commission on Civil Rights v. Howard, 47739

• Decision Date: 13 December 1975
• Docket Number: No. 47739,47739
• Citation: 544 P.2d 791,218 Kan. 248
• Parties: KANSAS COMMISSION ON CIVIL RIGHTS, Appellee. v. R. G. HOWARD and James Freel, Chief of Police of the City of Topeka, Appellants.
• Court: Kansas Supreme Court

Page 791

544 P.2d 791

218 Kan. 248

KANSAS COMMISSION ON CIVIL RIGHTS, Appellee. v. R. G. HOWARD and James Freel, Chief of Police of the City of Topeka, Appellants.

No. 47739.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. The authority of the commission on civil rights to receive and investigate a complaint depends on whether it alleges a violation of the Kansas act against discrimination.

2. In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of someone section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.

3. Where the legislature has repeatedly declared that the scope of the Kansas act against discrimination is limited to employment relations, public accommodations and housing, an amendment which might appear to extend that scope into other areas will not be construed to do so in the absence of a clear and explicit expression of legislative intent.

4. The Kansas act against discrimination does not cover, and the commission on civil rights has no authority to investigate, governmental activities which do not involve employment relations, public accommodations or housing.

5. The function of a police department in making arrests is not covered by the Kansas act against discrimination.

Ronald R. Hein, Asst. City Atty., argued the cause, and Dan E. Turner, City Atty., was with him on the brief for appellants.

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

FOTH, Commissioner:

The issue in this case is whether the Kansas commission of civil rights has the authority to entertain and investigate a complaint charging a city police officer with an unlawful discriminatory practice, based on the officer's decision to arrest the complainant and on the treatment afforded the complainant during the arrest and the time he is in custody.

On August 1, 1972, Wayne A. Lewis filed such a complaint with the commission, naming as respondents the Topeka police department and one of its officers. In it he identified himself as a black American who worked and attended Topeka High School as a junior. He recounted an incident in which he alleged in substance: The officer followed him from a gasoline station in a patrol car and stopped his car with no reason; after checking Lewis' driver's license and car tags and finding them legal, the officer called him names, offered to fight him, and shone a flashlight in his eyes in an harassing manner; upon finding Lewis with his eyeglasses in his hands the officer arrested him for violating a license restriction requiring him to wear glasses when driving. Upon arriving at the police station, Lewis alleged, the officer twisted the skin on his back, called him names and indulged in racial slurs. Other officers joined in taunting, threatening and insulting him, he said. He concluded his complaint by stating:

'I hereby charge the Topeka Police Department and its representatives with violation of the Kansas Act Against Discrimination in that I was denied the full and equal use of their services and advantages because of my race.'

A copy was served on the respondent officer and the Topeka police department, and the commission undertook to investigate the complaint. On September 10, 1973, it served a subpoena on the Topeka chief of police seeking the personnel and arrest records of the respondent officer, the disposition of the department's restricted driver's license arrests for a two year period, and the duty roster for the day of the alleged incident. When the records asked for were not forthcoming the commission obtained under K.S.A. 44-1004(5) an ex parte order from the Shawnee county district court compelling production.

The police department responded with a motion to suppress, asserting that the commission had no jurisdiction over the subject matter of the complaint or to issue the subpoena, and therefore the court had no jurisdiction to enter its enforcement order.

Upon first consideration the trial court agreed with the respondents, finding that the complaint 'does not allege acts which come within the purview and jurisdiction of the Kansas Commission on Civil Rights, because K.S.A. 1972 Supp. 44-1009(c)(3) relates to unlawful employment practices.' The commission filed a motion to reconsider which was sustained. The trial court reversed its position, found that the process of making an arrest is covered by the act, and ordered the chief of police to comply with the subpoena forthwith. The respondents have appealed, and the compliance order was stayed pending the appeal.

We are not concerned in this case with the truth of the complaint. We are only concerned with whether the nature of its allegations are such as to give the commission jurisdiction to investigate it.

It appears settled that the commission's jurisdiction to investigate a complaint depends on whether it alleges a violation of the Kansas act against discrimination. Thus, in Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263, the commission had received a complaint from one William V. Minner alleging discrimination in the extension of retail credit. At issue was the commission's authority to investigate the complaint by way of subpoena. The first question to be answered, the court said, was: 'Do the provisions of the Act apply to the area of consumer credit practices in a retail merchandising establishment? If such practices are not encompassed by the Act the commission would lack authority to investigate Minner's complaint or to issue the subpoena.' (Id., at 310, 532 P.2d at 1268.)

The real question, then, is whether the act covers governmental conduct in areas other than employment, public accommodations and housing. The court has concluded that it does not.

The policy of the state and the purposes of the act are set forth in K.S.A. 1974 Supp. 44-1001:

'This act shall be known as the Kansas act against discrimination. It shall be deemed an exercise of the police power of the state for the protection of the public welfare, safety, health and peace of the people of this state. The practice or policy of discrimination against individuals in employment relations, in relation to free and public accommodations or in housing by reason of race, religion, color, sex, physical handicap, national origin or ancestry is a matter of concern to the state, since such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of the state of Kansas to eliminate and prevent discrimination in all employment relations, to eliminate and prevent discrimination, segregation, or separation in all places of public accommodations covered by this act, and to eliminate and prevent discrimination, segregation or separation in housing.

'It is also declared to be the policy of this state to assure equal opportunities and encouragement to every citizen regardless of race, religion, color, sex, physical handicap, national origin or ancestry, in securing and holding, without discrimination, employment in any field of work or labor for which he is properly qualified, to assure equal opportunities to all persons within this state to full and equal public accommodations, and to assure equal opportunities in housing without distinction on account of race, religion, color, sex, physical handicap, national origin or ancestry. It is further declared that the opportunity to secure and to hold employment, the opportunity for full and equal public accommodations as covered by this act and the opportunity for full and equal housing are civil rights of every citizen.

'To protect these rights, it is hereby declared to be the purpose of this act to establish and to provide a state commission having power to eliminate and prevent segregation and discrimination, or separation in employment, in all places of public accommodations covered by this act, and in housing because of race, religion, color, sex, physical handicap, national origin or ancestry, either by employers, labor organizations, employment agencies, realtors, financial institutions or other persons as hereinafter provided.' (Emphasis added.)

It will be seen that the legislature mentions the three areas of coverage (employment, public accommodations and housing) no less than five times in its statement of policy and purpose. In addition, when conferring specific powers on the commission in K.S.A. 1974 Supp. 44-1004 it provided:

'The commission shall have the following functions, powers and duties:

* * *

* * *

'(4) To receive, initiate, investigate, and pass upon complaints alleging discrimination in employment, public accommodations and housing because of race, religion, color, sex, physical handicap, national origin or ancestry.' (Emphasis added.)

Our previous decisions construing the act have assumed that its coverage was limited to those three areas. See, e. g., Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 903, 528 P.2d 1232; Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 916-17, 529 P.2d 666; Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 113, 531 P.2d 455.

In support of its claim of jurisdiction here the commission relies on a 1972 amendment to the act's definition of the term 'unlawful discriminatory practice.' Prior to the 1972 amendment, K.S.A. 44-1002(i) defined an unlawful discriminatory practice as discrimination or...