Orr v. Clyburn
| Decision Date | 08 April 1982 |
| Docket Number | No. 21689,21689 |
| Citation | 290 S.E.2d 804,277 S.C. 536 |
| Court | South Carolina Supreme Court |
| Parties | , 32 Fair Empl.Prac.Cas. (BNA) 203 Robert H. ORR, Jr., Sheriff of Chester County, Individually and as Representative of All Sheriffs of South Carolina, Appellant, v. James E. CLYBURN, Commissioner, South Carolina Commission on Human Affairs, and South Carolina Commission on Human Affairs, an Agency of the State of South Carolina, Respondents. |
Joseph C. Coleman, Columbia, for appellant.
James W. Rion and Joseph L. Smalls, Jr., Columbia, for respondents.
Appellant initiated this action for declaratory and injunctive relief after respondent notified him that it was processing a charge of discrimination against him. The respondents' demurrer to appellant's complaint was granted on two grounds: that the court had no jurisdiction over the action and that the complaint failed to state a cause of action for declaratory or injunctive relief. We affirm.
On May 21, 1979, Nancy Grant Raines applied to appellant for an appointment as deputy sheriff. Appellant declined to appoint Raines but instead appointed two black males. Thereafter on July 11, 1979, Raines filed with respondent a charge of discrimination against appellant alleging that she had been denied appointment because of her sex and race. (Ms. Raines was female and white). On July 16, 1979, respondent notified appellant of the charge of discrimination. On September 24, 1979, appellant filed his complaint, individually and as representative of all South Carolina sheriffs, asking for a declaration that sheriffs are not subject to the provisions of the South Carolina Human Affairs Law, S.C. Code Ann. § 1-13-10 et seq. and for injunctive relief. He alleged that the respondents' investigation could result in an order of respondent commission requiring him to hire Raines and that he had no adequate remedy at law to prevent respondents from acting further upon Raines' complaint and ordering him to hire her as one of his deputies.
We agree with the trial court and adopt its order in substantial part.
We take judicial notice that S.C. Code Ann. § 1-13-90(d)(14), alleged by appellant as the source of respondents' power to order him to hire the applicant, is no longer in force. S.C. Code Ann. § 1-13-10 et seq. was amended on March 22, 1979. The present provisions of the Human Affairs Law dealing with counties and their subdivisions or departments, S.C. Code Ann. § 1-13-90(d) et seq., do not provide for any order of the respondent compelling appellant to hire a successful charging party. Therefore, appellant's allegation that he could be irreparably harmed if respondent were to order him to hire Raines is moot. His other allegation of irreparable injury, that respondent was currently engaged in investigating him, is without merit. This investigation cannot result in any direct harm to the appellant other than inconvenience.
The inconvenience of a government investigation does not constitute irreparable injury; it is merely part of the burden of living under government; it is not the kind of impending danger for which declaratory and injunctive relief are intended and is not an appropriate question for judicial determination. Bradley Lumber Company of Arkansas v. National Labor Relations Board, 84 F.2d 97 (5th Cir. 1936); Miles Laboratories, Inc. v. Federal Trade Commission, et al., 50 F.Supp. 434 (D.C.1943).
This is the first case decided under the Human Affairs Law as amended. S.C. Code Ann. § 1-13-100, however, specifies that the Human Affairs Law creates no cause of action which would not attach to an employer under Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. § 2000e, et seq. The South Carolina Human Affairs Law essentially follows the substantive structure of Title VII, and the enforcement agency for Title VII, the Equal Employment Opportunity Commission, is in all relevant and material respects analogous to the respondent commission. Under general rules of statutory construction, a jurisdiction adopting legislation from another jurisdiction imports with it the judicial gloss interpreting that legislation. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135 (1936); Santee Mills v. Query, 122 S.C. 158, 115 S.E. 202 (1922). Thus, Title VII cases which interpret provisions or procedures essentially identical to those of the Human Affairs Law are certainly persuasive if not controlling in construing the Human Affairs Law.
Under the Human Affairs Law, as under Title VII, the final step in the respondents' investigation, even if adverse to appellant (a determination that there was reasonable cause to believe that the employer discriminated unlawfully against the applicant) would be lifeless, could fix no obligation, could impose no liability, would have no determinative consequences, and would not be binding on the employer; consequently, when only these investigative non-adjudicatory powers of an agency are utilized, due process considerations do not attach. Georator Corp. v. E. E. O. C., 592 F.2d 765 (4th Cir. 1979).
Consistently, S.C.Code Ann. § 1-13-90(d)(4) provides that the procedure following such a determination, the Commissioner's decision whether to bring an action in equity, shall not be subject to judicial review. Only if the Commissioner decides to bring such an action in Common Pleas upon the completion of the instant investigation would any danger of the potential harm alleged by appellant arise, and then only after a full trial on the merits. The issues raised by appellant could be fully asserted as defenses in any such action brought on the applicant's behalf, making declaratory judgment unwarranted as premature even if an actual controversy were...
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