Pyro Mining Co. v. Kentucky Com'n on Human Rights, 83-SC-622-DG

• Decision Date: 25 October 1984
• Docket Number: No. 83-SC-622-DG,83-SC-622-DG
• Citation: 678 S.W.2d 393
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 1585 PYRO MINING COMPANY, Movant, v. The KENTUCKY COMMISSION ON HUMAN RIGHTS, Respondent.
• Court: Supreme Court of Kentucky

Page 393

678 S.W.2d 393

57 Fair Empl.Prac.Cas. (BNA) 1585

PYRO MINING COMPANY, Movant, v. The KENTUCKY COMMISSION ON HUMAN RIGHTS, Respondent.

No. 83-SC-622-DG

Supreme Court of Kentucky.

Oct. 25, 1984.

Jon L. Fleischaker, Susan T. Barnett, Wyatt, Tarrant & Combs, Louisville, for movant.

Steven L. Beshear, Atty. Gen., Robert L. Chenoweth, Linda Carnes Wimberly, Asst Atty. Gen., Frankfort, Thomas A. Ebendorf, Louisville, for respondent.

STEPHENSON, Justice.

Pyro Mining Company brought a declaratory judgment action in Franklin Circuit Court challenging the authority of the Commission on Human Rights to maintain a class action. The trial court determined that the Commission had statutory authority to maintain a class action, and the Court of Appeals affirmed. We granted discretionary review and reverse the decision of the Court of Appeals and the judgment of the trial court.

During a period of five months in 1980, six women filed with the Commission complaints against Pyro alleging discrimination in employment on the basis of sex. Each complaint was filed individually and on behalf of all others similarly situated and further stated, "I further state that the class of females who have been discriminated against is so numerous that joinder of all members is impracticable; that there are questions of law or fact common to the class; namely, whether females have been denied employment or consideration for employment because of their sex and whether such denial constituted a violation of KRS 344.040; that my claims are typical of the claims of the class; namely, that I and all other members of the class have been denied employment or consideration for employment because of sex; and that the representative parties will fairly and adequately protect the interest of the class." Each complaint contained a request for monetary damages. The actions were consolidated. Subsequently, the complainants, acting through the staff of the Commission, moved for a certification of the administrative proceedings as a class action. The Commission sustained the motion for class certification without making any of the findings required by CR 23.01. The class was certified to include all qualified females who have applied for positions as underground employees with Pyro Mining Company from January 1, 1980, to and including May 13, 1981.

Pyro then filed suit challenging the authority of the Commission in this respect.

The Kentucky Commission on Human Rights is a state administrative agency created pursuant to KRS Chapter 344 to foster mutual understanding and respect and to discourage discrimination based upon race, sex or ethnic group. Under KRS 344.180-.190, the Commission is empowered to receive, initiate, investigate, seek to conciliate, hold hearing on and pass upon complaints of discrimination and to promulgate rules and regulations to effectuate the purposes of the Chapter. KRS 344.200-.230 sets out the procedures for the initiation of a complaint, investigation, resolution of the matter through conference, conciliation or persuasion, holding hearings on complaints of discrimination, issuing finding and conclusions of law and ordering affirmative action to be taken to halt the discriminatory practice.

KRS 344.150 establishes the Commission to consist of eleven members. KRS 344.160 speaks to qualification of the members, directing that they shall be broadly representative of employers, proprietors, trade unions, religious groups, human rights groups, and the general public.

KRS 344.200(7), added to the statute in 1976, provides:

"Insofar as they are not inconsistent or in conflict with the procedure and practice provided by this chapter, the Kentucky Rules of Civil Procedure will apply to proceedings under this chapter."

The trial court adjudged that the General Assembly by the amendment of KRS 344.200(7) specifically authorized the Commission to entertain class actions by applying the Rules of Civil Procedure to proceedings before it. The Court of Appeals affirmed the trial court stating that if the legislature had intended to except CR 23.01 et seq. from the provisions of KRS 344.200(7), it would have done so. Both the trial court and the Court of Appeals have said that the legislation does not except class actions, therefore such an action is included, the logical extension of which is saying that the statute empowers the Commission to use all the Rules of Civil Procedure save those inconsistent with or in conflict with KRS Chapter 344. We are of the opinion the statute is not monolithic and that the General Assembly did not contemplate CR 23 class action proceedings by enacting KRS 344.200(7), and that a CR 23 class action is inconsistent with the procedures outlined in KRS Chapter 344.

At oral argument it was readily conceded that CR 65.01-.06 injunctive relief etc. is not authorized as a remedy available to the Commission by virtue of the statute. We can infer from other sections of Chapter 344 that this is so. KRS 344.200(6) provides that after a complaint is filed, the Commission may file an action in circuit court for appropriate temporary relief including restraining orders. Also KRS 344.450 provides for a civil cause of action in circuit court to enjoin further violations of the provisions of the Chapter and to recover actual damages. We observe that CR 65.01 et seq. proceedings are more than just procedural in nature. The injunctive process involves judgments which can only be made by a judge. Substantive rights are affected. By a parity of reasoning, we are of the opinion that a CR 23 class action proceeding, which is also a creature of equity, is more than an ordinary procedural rule and requires judgment exercised by a judge. A cursory examination of CR 23.01, which provides,

"Subject to the provisions of Rule 23.02, one or more members of a class may sue or be sued as representative parties on behalf of all only if (a) the class is so numerous that joinder of all members is impracticable, (b) there are questions of law or fact common to the class, (c) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (d) the representative parties will fairly and adequately protect the interests of the class." [Emphases added.]

and CR 23.02, which provides,

"An action may be maintained as a class action if the prerequisites of Rule 23.01 are satisfied, and in addition:

(a) The prosecution of separate actions by or against individual members of the class would create a risk of

(i) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or,

(ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests, or

(b) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(c) the...