Soley v. State Commission on Human Relations

Decision Date14 April 1976
Docket NumberNo. 134,134
PartiesJoseph L. SOLEY t/a Cardiff Hall East Apartments et al. v. STATE of Maryland COMMISSION ON HUMAN RELATIONS.
CourtMaryland Court of Appeals

Jeffrey Rockman, Leonard E. Cohen and Frank, Bernstein, Conaway & Goldman, Baltimore (Alan I. Baron, Baltimore, on the brief), for appellants.

Philip J. Tierney, Gen. Counsel, Baltimore (Jacob J. Edelman and Edelman, Levy & Rubinstein, Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL *, JJ.

LEVINE, Judge.

This case is a companion to John J. Banach, et al. v. State of Maryland Commission on Human Relations, Md., 356 A.2d 242 (1976) (No. 133, September Term, 1975, decided April 14, 1976), also decided today. The appeal here arises from an order of the Circuit Court for Baltimore County (Land, J.) sustaining, without leave to amend, a demurrer to bills of complaint for declaratory relief filed by appellants, Joseph L. Soley and Howard M. Berman, and enforcing a subpoena duces tecum served on each of them by the State of Maryland Commission on Human Relations (the commission) in connection with an investigation which it was then conducting. The subpoenas followed issuance by the commission of an amended complaint which charged appellants with engaging in discriminatory housing practices. We granted certiorari prior to consideration of this appeal by the Court of Special Appeals, and since we think Judge Land ruled correctly in both respects, we shall affirm.

The commission issued the amended complaints in its own name pursuant to Maryland Code (1957, 1972 Repl.Vol.) Art 49B, § 12(b), charging appellants, each of whom is the owner of an apartment house development in Baltimore County, with unlawful discrimination in regard to 'tenant recruitment policies, advertising and rental practices' resulting 'in the virtual exclusion of Black persons from tenancies in the aforesaid apartments because of their race in violation of (Art. 49B, § 22).' At the same time, the commission ordered that 'an investigation of said practices' be undertaken to inquire into 'the facts and circumstances concerning the . . . housing practices of the respondent(s).' An effort to conduct the investigation by interrogatories proved unsuccessful. The commission then issued subpoenas over the signature of its chairman requesting the production of various documents and records pertaining to appellants' rental procedures. The subpoenas bore no more fruit than did the interrogatories which had preceded them, since appellants maintained that the commission lacked the power to issue subpoenas except in connection with the hearing contemplated by § 14 of Art. 49B.

To resolve the impasse, each appellant then filed his bill of complaint reciting the chronology of events leading from the issuance of the initial complaints by the commission to the subpoenas. Appellants prayed that the amended complaints of discriminatory housing practices be declared 'illegal and invalid' for failure to comply with § 12(b) of Art. 49B, that the subpoenas be declared invalid, and that the commission be enjoined from enforcing them. The commission responded with a demurrer and an affirmative claim of its own asking that the court enforce the subpoenas pursuant to § 14(d) of Art. 49B. The two cases were then consolidated. The chancellor, in sustaining the demurrers, held with regard to the relief sought by appellants that the cases were not ripe for declaratory relief, since applicable statutes afforded them 'a special form of remedy.' Further, he rejected appellants' contention that § 14(d) of Art. 49B limited the subpoena power to the hearing stage of commission proceedings.

In this Court, appellants reiterate the arguments advanced below, that the complaints issued by the commission, being couched in conclusory language, did not comply with the requisites of Art. 49B, § 12(b) in regard to particularity, and that the complaints failed to allege the 'reliable information' which the commission must receive before it can issue a complaint in its own name. As we have intimated, however, we agree with the circuit court ruling that these questions need not be reached due to appellants' failure to avail themselves of the special form of remedy provided by statute. Additionally, of course, appellants renew their argument that the subpoenas were beyond the scope of the statutory authority granted to the commission, since they may be issued only in connection with hearings under § 14. Since our holding in Banach is fully dispositive of this last contention, we shall only consider it briefly.

(1)

In Banach, we held that the commission possesses statutory authority to issue a subpoena duces tecum while conducting a preliminary investigation under Art. 49B, § 12(b). There, the commission was engaged in conducting an investigation following receipt of four individual complaints of discriminatory practices, but prior to issuance of a complaint in its own name. Although superficially the cases have reached us in different postures, for purposes of the question we now consider, they are not dissimilar. The argument being made here is that the subpoena power granted by § 14(d) does not extend to any investigatory stage, not even to that being conducted here under § 13(a) following issuance of a complaint by the commission itself. 1

If, as we held in Banach, the subpoena power delegated to the commission by § 14(d) extends to the preliminary investigation preceding the issuance of a commission complaint, it is clearly available following the issuance of such a complaint. At that point the staff becomes engaged in an investigation pursuant to the command of § 13(a) that may lead directly to a finding of probable cause to believe that a discriminatory act has been committed, and may conceivably eventuate in the quasi-judicial hearing contemplated by § 14.

In Banach, we underscored the legislative intent, immediately apparent in the language of § 14(d) itself, that the subpoena power was granted for the 'administration and enforcement' of the several subtitles in Art. 49B, and for 'proceedings,' not merely 'hearings.' The word 'proceedings,' we said, imports a broader scope than 'hearings,' encompassing both the investigative and adjudicative functions of an administrative agency. We concluded in Banach, as, of course, we do here, that the General Assembly used the word 'proceedings' in its broad sense in § 14(d). Manifestly, just as the Legislature insured that no one would be subjected to a commission complaint prior to a meaningful preliminary investigation, it was careful to provide for an effective investigation prior to the quasi-judicial stage.

We hold, therefore, that the Human Relations Commission possesses statutory authority to issue a subpoena duces tecum during an investigation being conducted in accordance with § 13(a) of Art. 49B.

(2)

The chancellor declined to entertain appellants' prayers for declaratory relief on the authority of Code (1974) § 3-409(b), Courts & Judicial Proceedings Article, which requires that a statutory remedy, where provided for a specific type of case, be followed in lieu of a proceeding for declaratory relief. Notwithstanding appellants' claim to the contrary, we think it clear that § 15 of Art. 49B and § 255(a) of Art. 41, part of the Administrative Procedure Act, combine to provide the 'special form of remedy' contemplated by § 3-409(b) of the Courts & Judicial Proceedings Article. 2 Section 15 of Art. 49B deals with enforcement of commission orders and is couched in such language as to persuade us that judicial review may be sought by either the commission or the respondent in accordance with §§ 255 and 256 of Art. 41.

The general rule, as appellants recognize, is that where a statute provides a special form of remedy, the plaintiff must use that form rather than any other, Hartman v. Prince George's Co., 264 Md. 320, 323, 286 A.2d 88 (1972); Pressman v. State Tax Commission, 204 Md. 78, 84, 102 A.2d 821 (1954); Tanner v. McKeldin, 202 Md. 569, 577, 97 A.2d 449 (1953); and if he is unsuccessful, he must seek the judicial review provided by the Legislature rather than invoke the...

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