Montana Human Rights Div. v. City of Billings, 81-453

• Decision Date: 02 September 1982
• Docket Number: No. 81-453,81-453
• Citation: 649 P.2d 1283,39 St.Rep. 1504,199 Mont. 434
• Parties: , 32 Empl. Prac. Dec. P 33,821 MONTANA HUMAN RIGHTS DIVISION, Petitioner and Appellant, v. CITY OF BILLINGS, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1283

649 P.2d 1283

199 Mont. 434, 32 Empl. Prac. Dec. P

33,821

MONTANA HUMAN RIGHTS DIVISION, Petitioner and Appellant, v. CITY OF BILLINGS, Respondent and Respondent.

No. 81-453.

Supreme Court of Montana.

Submitted May 20, 1982.

Decided Aug. 16, 1982.

As Amended Sept. 2, 1982.

Frederick F. Sherwood argued, Helena, for petitioner and appellant.

McNamer, Thompson & Cashmore, Charles Cashmore argued, K. D. Peterson argued, City Atty., Billings, for respondent and respondent.

WEBER, Justice.

The Montana Human Rights Commission, acting through its staff, the Montana Human Rights Division (herein referred to as HRC), appeals from summary judgment and a final judgment of dismissal in the Thirteenth Judicial District Court. We vacate the judgment and remand the cause for further action by the District Court.

The sole issue before this Court is whether, as a matter of law, the HRC may, as part of its investigation of a discrimination complaint, require an employer to submit certain evidence relating to persons other than the complainants.

Four persons filed discrimination complaints with the HRC against the City of Billings. William Wong alleged that he was discriminated against because of his Chinese ancestry, in his bid for promotion to Sergeant with the Billings Police Department. Jerry Klundt charged that he had been denied merit or step increases and had been demoted because of his Crow Indian background and in retaliation for union activities and for having filed a charge of discrimination. Win Poynter alleged that she had been passed over for promotion at Billings' Logan International Airport because of her sex, and jobs for which she was qualified had been filled by less qualified male applicants. Jesse Gonzales (who has since withdrawn his complaint) alleged that he was denied a five-year pay increase as a civilian employee of the Billings Fire Department and assigned undesirable shifts despite his seniority because of his sex and his Mexican-American background.

During its investigation of these complaints, the HRC submitted a supplemental interrogatory to the City of Billings, requesting personnel files, employee evaluations, disciplinary records, test scores and application materials for complainants and certain other employees and applicants for employment with the City of Billings. When the City did not comply with the HRC's request, the HRC issued subpoenas duces tecum, pursuant to section 49-2-203, MCA, demanding the information. The City answered that it "would not voluntarily turn over to (the HRC) the personnel files and test scores for the individuals requested other than the charging parties without consent of the persons that are the subjects of the personnel files unless of course there was a court order directing us to do so."

On March 12, 1981, the HRC filed a petition with the District Court, for enforcement of the subpoenas duces tecum, against the City of Billings. The City responded that the information sought by the HRC is personal, and releasing it without prior consent of the individuals involved "may constitute an invasion of those persons' privacy and may render the City liable for that invasion."

By stipulation, filed June 17, 1981, the parties agreed to the consolidation of the HRC's action against the City of Billings with a pending action by the HRC against the County of Yellowstone. Katherine Webster had filed a complaint with the HRC, alleging that she was discriminated against in hiring by the Yellowstone County Sheriff's Department on the basis of her sex, race, and marital status. Like the City, the County had refused to produce employment applications and other information pertaining to the other individuals who had applied for the position(s) for which Ms. Webster had applied.

On August 7, 1981, after a July hearing on the matter, the District Court denied the HRC's motion for summary judgment, and granted the motion of the City and County for summary judgment. The accompanying memorandum of the District Court indicated the court's determination that (1) the disputed information is subject to the protection of Article II, Section 10, Mont.Const.; (2) respondents are not in a position to provide the information without the consent of the individuals whose right of privacy is affected; and (3) the HRC had shown neither a compelling state interest in obtaining the information, nor exhaustion of other sources of obtaining the information. The District Court entered its judgment of dismissal in favor of the City and County on September 28, 1981. The HRC appeals.

The complainants have filed complaints with the Federal Equal Employment Opportunity Commission alleging that respondents' actions violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. That Commission, pursuant to section 706 of Title VII, is awaiting the outcome of this action before moving on complainants' charges.

I.

Article II, Section 10, of the Montana Constitution states:

"Right of Privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."

The Transcript of the 1972 Constitutional Convention clearly indicates the significance to the delegates of this right, which nowhere appears in the Federal Constitution but has been judicially inferred from the provisions of the Bill of Rights. Delegate Campbell read into the record an editorial statement from the Montana Standard, February 3, 1972, here included in part:

"We think the right of privacy is like a number of other inalienable rights; a carefully worded constitutional article reaffirming this right is desirable. Wade Dahood of Anaconda, Chairman of the Bill of Rights Committee, hit the nail on the head when he said: 'As government functions and controls expand, it is necessary to expand the rights of the individual.' The right to privacy deserves specific protection." Tr. of the Montana Constitutional Convention, Vol. V, p. 1681.

Indeed, at one point, the delegates struck out the phrase requiring a compelling state interest, because, in the words of Delegate Harper:

"... that may be interpreted by whatever state agency happens to have an interest in invading my privacy at that particular time." Tr. at p. 1682.

David Gorman, in an article entitled "Rights in Collision: The Individual Right of Privacy and the Public Right to Know," 39 Mont.L.Rev. 249, 251 (1978), noted that the delegates' decision to include the phrase after all was intended to strengthen rather than weaken the constitutional protection afforded the individual right to privacy:

"When the amended provision was reported out of the Style and Drafting Committee the delegate who had offered the deleting amendment moved for reconsideration, supporting his motion by saying that his general intent, to strengthen the protection of the individual, was not served by his amendment. The debate on the motion to reconsider (which passed) and the subsequent motion to reintroduce the 'compelling state interest' test was lively. Various delegates took the positions that the standard was implicit, that the right of privacy had been rendered absolute, that the amended provision was meaningless to a court, and that in default of any explicit standard the courts could choose to apply a mere 'reasonableness' test to defeat privacy rights. It was this last argument which apparently swayed the convention as a whole, and the 'compelling state interest' test was restored.

"This explicit statement of the weight to be accorded to the right guaranteed by the provision places a heavy burden on the state. It has even been suggested that the task faced by the state of showing a compelling interest is, in most situations, an impossible one. Clearly the delegates placed a very high value on the right of privacy, and they forcefully indicated that the courts were to accord it every protection available under this most stringent standard of judicial review." 39 Mont.L.Rev. at 251.

There can be little doubt that the federal protection is less stringent and would allow discovery without requiring a showing of compelling state interest under these circumstances. The Tenth Circuit Court of Appeals addressed the question in the context of privacy rights under the Fourth Amendment, in Equal Employment Opportunity Commission v. University of New Mexico, Albuquerque (10th Cir. 1974), 504 F.2d 1296, 1302, a case raising a legal issue similar to the present one:

"The law governing the limits on the administrative power of investigation has evolved from the earlier judicial condemnation of fishing expeditions to that of enforcement of the subpoena power 'if the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant.' United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 369, 94 L.Ed. 401 (1950)."

The court concluded that, under federal law,

"... today that which we have previously considered to be administrative 'fishing expeditions' are often permitted; and that administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose." 504 F.2d at 1303.

In the present case, the HRC seeks information which the District Court recognized as relevant to proper investigation by the HRC of the employment discrimination complaints; the subpoenas clearly indicate the information which is sought. Under the federal standard, discovery of the personnel files and records would not be restricted by a penumbral right of privacy.

However, as noted, Montana's constitutional right of privacy is explicit. This Court has recognized that the protection it offers is more substantial than that inferred from the Federal Constitution. In State v. Hyem (1981), Mont., 630 P.2d 202, 38 St.Rep. 891, we upheld the application of the...