La Petite Auberge, Inc. v. Rhode Island Commission for Human Rights

• Decision Date: 27 August 1980
• Docket Number: No. 77-447-A,77-447-A
• Citation: 419 A.2d 274
• Parties: 24 Fair Empl.Prac.Cas. (BNA) 119, 24 Empl. Prac. Dec. P 31,367 LA PETITE AUBERGE, INC. v. RHODE ISLAND COMMISSION FOR HUMAN RIGHTS. ppeal.
• Court: Rhode Island Supreme Court

Page 274

419 A.2d 274

24 Fair Empl.Prac.Cas. (BNA) 119,

24 Empl. Prac. Dec. P 31,367

LA PETITE AUBERGE, INC. v. RHODE ISLAND COMMISSION FOR HUMAN RIGHTS.

No. 77-447-Appeal.

Supreme Court of Rhode Island.

Aug. 27, 1980.

Moore, Virgadamo & Lynch, Ltd., Joseph R. Palumbo, Jr., Newport, for plaintiff.

Dennis J. Roberts II, Atty. Gen., Richard B. Woolley, Sp. Asst. Atty. Gen., for defendant.

OPINION

WEISBERGER, Justice.

These appeals were taken from an order of the Superior Court which directed that certain discovery procedures take place prior to an administrative hearing before the Rhode Island Commission for Human Rights (the commission). Brought into issue in this case is the responsibility of the commission to make its investigative and information-gathering powers available to parties to a contested proceeding before it.

The case grew out of a dispute between Ann Marie Wall (Wall) and La Petite Auberge, Inc. (L'Auberge), her former employer. Wall was a luncheon waitress at L'Auberge, a Newport restaurant. On June 8, 1976, she filed a charge against L'Auberge with the commission, in which charge she alleged that L'Auberge had discriminated against her on the basis of her sex when it declined to allow her to fill an evening waiter vacancy for which she was qualified. The charge was investigated by the commission staff and led to a preliminary ruling by an investigating commissioner that there was reasonable cause to believe that a violation of G.L.1956 (1979 Reenactment) § 28-5-7 had occurred. Conciliation negotiations, mandated under § 28-5-17, were unsuccessful and a commission complaint against L'Auberge was duly filed. A hearing was scheduled for May 4, 1977.

On March 15, 1977, L'Auberge requested that the commission issue a subpoena duces tecum to Wall to require her to produce for L'Auberge's inspection her compensation records from January 1, 1976 (including records of the compensation she received while employed at L'Auberge and at the Viking Hotel), as well as a copy of her 1976 federal income tax return. L'Auberge also requested that a subpoena duces tecum issue directing the Viking Hotel to produce records of Wall's wages and tips while she was employed at the Viking. The commission issued the subpoena directed to Wall on April 18, 1977, and she apparently complied with its terms, although L'Auberge was apparently unaware of her compliance and did not avail itself of the commission's receipt of the subject records. ¹ The commission did not subpoena the Viking Hotel's records. On its own account the commission did subpoena from Roger G. Putier, president of L'Auberge, all records of L'Auberge's gross-sales receipts for food and beverages, waiter and waitress compensation records, and applications for employment from the date L'Auberge opened under the present ownership.

In a letter dated April 22, 1977, L'Auberge's attorney requested permission of the commission to depose Wall in advance of the hearing scheduled for May 4. The request was denied and counsel for L'Auberge was accordingly notified by letter dated April 26, 1977. L'Auberge then commenced the present action against the commission in Superior Court for the County of Newport, seeking injunctive relief. In its complaint L'Auberge charged (1) that the commission was without the authority or power to subpoena Mr. Putier or examine L'Auberge's records between the conclusion of the commission's preliminary investigation and the beginning of the adjudicative hearing and (2) that the commission should have acceded to L'Auberge's requests that Wall be deposed and that subpoenas duces tecum should have been issued to Wall and the Viking Hotel requiring them to produce wage records. ² The hearing on the discrimination charge was postponed until the termination of this litigation.

Both L'Auberge and the commission moved for summary judgment. Although he denied the motions, the trial justice entered an order which upheld the Putier subpoena, directed the commission to subpoena records from Wall and the Viking Hotel as L'Auberge had requested, and allowed L'Auberge the right to take Wall's deposition prior to the hearing. The trial justice reaffirmed this order in response to the commission's motion to alter or amend the judgment, and both parties have filed appeals.

I

The commission asserts that the Superior Court complaint should have been dismissed for lack of subject-matter jurisdiction. ³ The record discloses that it was not until the commission's motion to alter or amend the judgment, made shortly after the trial justice had entered its first order, that the commission first raised its jurisdictional contention. ⁴ In oral argument on the motion to alter or amend, counsel for the commission elaborated its position that the Fair Employment Practices Act provisions that allow an aggrieved party to obtain judicial review of a final order of the commission, G.L.1956 (1979 Reenactment) §§ 28-5-28 to 28-5-36, indicate that there is no power in the Superior Court to interfere with commission proceedings before a final order has been handed down.

Assuming arguendo that the commission's interpretation of the Fair Employment Practices Act has merit, the argument relates not to the presence or absence of subject-matter jurisdiction of the Superior Court but to the correctness of the court's decision to intervene. The tendency of counsel before this court to couch assertions of mere error in terms of lack of subject-matter jurisdiction has carried on with notable perseverance in spite of our repeated attempts to elucidate the distinction between the two arguments. See, e. g., Borozny v. Paine, R.I., 411 A.2d 304 (1980); Hartt v. Hartt, R.I., 397 A.2d 518 (1979). In this connection we repeat the principle that the Superior Court is a court of general equitable jurisdiction, G.L.1956 (1969 Reenactment) § 8-2-13; Borozny v. Paine, R.I., 411 A.2d at 307; although its jurisdiction is not limitless, the Superior Court possesses, as a matter of fundamental judicial power, the jurisdiction to hear and confront the merits of any case wherein the power of determination has not been specifically conferred upon another tribunal. Judicial intervention under the present facts may be argued to have been improper, but considered as a matter of subject-matter jurisdiction, the jurisdiction of a court of equity to aid a respondent who claims he is being irreparably harmed by the conduct of administrative proceedings may not be disputed. Jordan v. United Insurance Co. of America, 289 F.2d 778, 782-83 (D.C.Cir.1961); Lahey Clinic Foundation Inc. v. Health Facilities Appeals Board, --- Mass. ---, ---, 380 N.E.2d 675, 682 (1978); Jaffe, Judicial Control of Administrative Action 161, 193-94 (abr. ed. 1965). ⁵ This being the case, the commission's present contention reduces itself to a claim of trial-court error-"to the appropriate exercise of power as opposed to the absence of power, "Hartt v. Hartt, R.I., 397 A.2d at 523. Properly considered, the commission's contention is that relief should not be granted on L'Auberge's complaint at the present stage of the administrative proceedings-a contention appropriately raised under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure.

The commission did not confront the trial court with this contention until after a final order had been entered. Rule 12(h) provides in part that

"(a) party waives all defenses and objections which he does not present either by motion as hereinbefore provided or, if he has made no motion, in his answer or reply, except * * * that the defense of failure to state a claim upon which relief can be granted * * * may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at trial on the merits."

The clear intendment of our rule, which is modeled after Rule 12(h) of the Federal Rules of Civil Procedure, is that a failure to state a claim may not be raised by the defendant after a disposition on the merits. See Snead v. Department of Social Services, 409 F.Supp. 995, 1000 (S.D.N.Y.1975) (three-judge court). By failing to raise the argument here in issue before the trial justice had rendered his disposition on the merits, the commission waived its right to have the argument addressed. Super.R.Civ.P. 12(h); see Brule v. Southworth, 611 F.2d 406, 409 (1st Cir. 1979); Black, Sivalls & Bryson, Inc. v. Shondell, 174 F.2d 587, 590-91 (8th Cir. 1949). Therefore we will not consider it. We will not permit a party to blur the distinction between failure to state a claim and lack of subject-matter jurisdiction (the latter of which may not be waived and may be raised at any time) in order to make timely a motion that is not timely. See Brule v. Southworth, 611 F.2d at 409; Snead v. Department of Social Services, 409 F.Supp. at 1000. Thus we shall proceed to a review of the merits of the Superior Court's grant of relief.

II

The central question presented by this case is whether the trial justice erred in ordering the commission to afford L'Auberge a degree of prehearing discovery through the issuance of subpoenas duces tecum directed at the Viking Hotel and subpoenas duces tecum and ad testificandum directed at Wall. Concededly, there is no explicit provision in either the Fair Employment Practices Act, chapter 5 of title 28, or the Administrative Procedures Act, chapter 35 of title 42, of any right of a party to prehearing discovery. Legislative authorization may be found, however, for whatever system of discovery may be necessary to ensure procedural fairness, for among the commission's enumerated powers and duties are the powers and duties

"(i)n connection with any investigation or hearing held pursuant to the provisions of this chapter, to * * * subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and, in connection therewith, to require the production for examination of any books and papers...