Southwestern Bell Telephone Co. v. Miller
| Decision Date | 15 September 1978 |
| Docket Number | No. 50125,50125 |
| Citation | 583 P.2d 1042,2 Kan.App.2d 558 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee, v. Vern MILLER, District Attorney, 18th Judicial District, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
A prosecuting attorney conducting an inquisition without judicial supervision under K.S.A.1977 Supp. 22-3101(2) may issue a subpoena commanding a witness to produce unprivileged books and documents under the control of the witness.
Stuart W. Gribble, Kiehl Rathbun, Asst. Dist. Attys., and Curt T. Schneider, Atty. Gen., for appellant.
Jerry G. Elliott of Foulston, Siefkin, Powers & Eberhardt, Wichita, for appellee.
Before FOTH, C. J., and SWINEHART and MEYER, JJ.
The sole issue in this case is whether the grant of authority to prosecuting attorneys conducting inquisitions under K.S.A.1977 Supp. 22-3101(2) to issue "subpoenas" includes the authority to issue subpoenas Duces tecum. We hold that it does.
The action was precipitated by a subpoena issued by the district attorney of the eighteenth judicial district (Sedgwick county) in connection with an investigation of alleged violations of the narcotics laws. The subpoena commanded the security manager of the Southwestern Bell Telephone Company to appear before the district attorney and bring with him all records in possession of Bell showing telephone numbers charged with making calls to certain telephone numbers in Kansas for a specified three month period.
The response from Bell was this suit for a declaratory judgment, seeking to enjoin the enforcement of this subpoena and the issuance of any more like it. The trial court, reading the statute as authorizing a subpoena for a witness to testify but not a subpoena Duces tecum, granted the injunction prayed for. The district attorney has appealed.
K.S.A.1977 Supp. 22-3101, the "inquisition" statute, has three subsections. The first applies to the investigation of any crime, and provides for subpoenas to be issued by a judge upon application by a prosecutor. Subsection (3) deals with taking testimony and provides that refusal to testify may be adjudged contempt of court. Subsection (2), under which this subpoena was issued, authorizes subpoenas by the prosecutor, without the necessity of judicial action, in the investigation of certain specified crimes. It provides:
The case was submitted below on stipulated facts and the arguments of counsel. The trial court reached three conclusions of law:
On appeal the district attorney challenges the first conclusion. Bell relies solely on that conclusion; it filed no cross-appeal, and does not seek to support the judgment on any alternative ground or reasoning. Bell concedes it has the information sought. Hence we do not consider whether this particular subpoena was overbroad or oppressive, or whether it was issued in good faith for a legitimate law enforcement purpose. The parties are agreed that the judgment below must stand or fall on a pure question of statutory interpretation.
The parties devote a good deal of their briefs to the question of whether the civil code provisions for subpoenas are incorporated into the inquisition statute by virtue of references to them elsewhere in the code of criminal procedure. We do not find this discussion of much help in answering the question posed by this case, although we would probably agree with Bell that the inquisition statute stands on its own even though it is part of the code of criminal procedure. The trial court apparently relied on the inquisition statute alone, and gave a strict construction to its language permitting subpoenas for "persons" to appear and "testify." Bell argues that such a construction is warranted because, it says, the statute is penal in nature, and because subpoenas Duces tecum are specifically authorized elsewhere in the statute book.
The first argument we view as fallacious; the power to investigate crimes and issue subpoenas has nothing penal about it. The statutes defining crimes are obviously penal, and are strictly construed because people are entitled to fair notice of what conduct may subject them to penalties. Here, a contempt of court penalty may be imposed for failure to comply with the subpoena, but not for violation of the statute. The subpoena itself may be strictly scrutinized to see if there has been willful disobedience justifying punishment, but we do not see that as a reason to strictly construe the authorizing statute. If we must categorize it, we would think it a remedial statute which should be liberally construed to effectuate its purpose.
The second argument, invoking the doctrine of Expressio unius, has more substance but does not convince us. It is true that under K.S.A. 50-153 the attorney general, when conducting an inquisition in antitrust cases, is specifically authorized to issue subpoenas Duces tecum. However, the grand jury statute (K.S.A.1977 Supp. 22-3008), enacted at the same time as our present inquisition statute as part of the 1970 code of criminal procedure, also speaks only of process to bring "witnesses to testify," and makes no mention of the production of documents. Likewise, subsection (1) of K.S.A.1977 Supp. 22-3101, dealing with judicially supervised inquisitions, also speaks only of subpoenas for "witnesses" to "appear and testify." Yet we would suppose no argument would be made that subpoenas issued under either statute could not command the production of documents. Indeed, the court below in its second conclusion of law specifically recognized the right of a judge to issue subpoenas Duces tecum under 22-3101(1), despite the fact that its language is no broader than that of 22-3101(2).
The only justification for distinguishing between the subpoena powers under the grand jury and judicial inquisition statutes on the one hand, and the prosecutorial inquisition statute on the other, is to recognize and rely on the inherent right of courts to issue subpoenas a right not possessed by prosecutors. While the authorities generally recognize that proposition, we doubt that the legislature chose its language with that in mind. It strikes us as more probable that in employing similar language in all three cases the legislature expected the power granted to be construed as being the same in all three.
As we see it, the real task in this, as in all statutory construction cases, is one of determining legislative intent. Expressio unius and all other "rules" of statutory construction are merely aids to assist in that chore, and are to be applied only where they are helpful in achieving that end. Commerce Trust Co. v. Paulen, 126 Kan. 777, 271 P. 388 (1928); Harkrader v. Whitman, 142 Kan. 186, 46 P.2d 1 (1935). In this case we are to determine simply whether the legislature intended a prosecutor who was conducting a criminal investigation to be able to compel the production of documents, or whether it meant to limit him to the interrogation of witnesses.
On this issue the district attorney makes an argument which we find compelling. There can be no doubt that the county prosecutors of this state, along with the attorney general, have a duty to investigate all criminal activity which comes to their attention, and that the inquisition statute is a primary tool entrusted to them by the legislature to assist in that function. State ex rel. v. Rohleder 208 Kan. 193, 490 P.2d 374 (1971); State v. Brecheisen, 117 Kan. 542, 232 P. 244 (1925). If information about criminal activity is in the hands of an individual, it can clearly be acquired by compelling that individual's testimony. If, as here, the information is in the hands of a corporation in the form of corporate records, the construction adopted below would mean it is beyond the reach of the official charged with the duty of investigating and prosecuting. We find it hard to believe the legislature intended the forces of law enforcement to go into the battle against crime with half their guns spiked.
As we read the cases cited by Bell, they stand for the proposition that agents of the executive branch (such as a county prosecutor or attorney general) have no subpoena power in the absence of express statutory authority. We have no quarrel with that general proposition. For example, in State ex rel. Woodahl v. District Court, 166 Mont. 31, 530 P.2d 780 (1975), the trial court had declined the attorney general's request to convene a grand jury because, Inter alia, it found he had statutory subpoena power under which he could accomplish the desired...
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