Yellow Freight System, Inc. v. Kansas Commission on Civil Rights

• Decision Date: 02 March 1974
• Docket Number: No. 47150,47150
• Citation: 214 Kan. 120,519 P.2d 1092
• Parties: , 13 Fair Empl.Prac.Cas. (BNA) 855, 7 Empl. Prac. Dec. P 9201 YELLOW FREIGHT SYSTEM, INC., Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.
• Court: Kansas Supreme Court

Page 1092

519 P.2d 1092

214 Kan. 120, 13 Fair Empl.Prac.Cas. (BNA) 855,

7 Empl. Prac. Dec. P 9201

YELLOW FREIGHT SYSTEM, INC., Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.

No. 47150.

Supreme Court of Kansas.

March 2, 1974.

Syllabus by the Court

1. The provisions of K.S.A.1971 Supp. 44-1004 and K.S.A.1971 Supp. 44-1005 do not limit use of the subpoena power of the Kansas Commission on Civil Rights to preliminary investigations to determine probable cause and to hearings before the commission.

2. The provisions of K.S.A.1971 Supp. 44-1005 do not limit the general investigatory and subpoena power granted the commission in K.S.A.1971 Supp. 44-1004(5).

3. General tenets of administrative law recognize that an agency charged with investigatory duties to ferret out violations of the law can issue subpoenas and make such investigations, even though no formal administrative hearing is pending.

4. Where there is a possibility of relevancy in documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry.

David L. Ryan, Topeka, argued the cause, and Vern Miller, Atty. Gen., and Jerry Shelor, Asst. Atty. Gen., were with him on the brief for appellant.

Robert W. McKinley, Jr., of Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, Mo., argued the cause, and Richard K. Andrews, Kansas City, Mo., and Paul L. Armstrong, Columbus, were with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal from an order granting a permanent injunction in an action filed by Yellow Freight System, Inc., against the Kansas Commission on Civil Rights. The action is collateral to an action by the Kansas Commission on Civil Rights on the complaints of Bobby G. Ferrell, Wendell Phillips, and John W. Allen, charging employment discrimination by Yellow Freight System, Inc. Hereafter, the Kansas Commission on Civil Rights will be referred to is the commission; Ferrell, Phillips, and Allen, as complainants; and Yellow Freight System, Inc., as respondent. The issue on appeal is the authority of the commission to investigate and issue a subpoena after a finding of probable cause for crediting complaints of discrimination, but prior to issuing notice of a hearing on said complaints.

On November 21, 1970, the complaint of Ferrell was served upon respondent in Baxter Springs, Kansas, charging racial discrimination in its employee 'layoff' practices in violation of the Kansas Acts Against Discrimination. (K.S.A. 44-1001 et seq.) On December 17, 1970, the complaints of Phillips and Allen were served on respondent alleging similar acts of racial discrimination. The complaints were consolidated and investigated by a field representative of the commission and an investigating commissioner. On March 21, 1971, a finding of probable cause for crediting said complaints was made by the investigating commissioner and respondent was notified thereof. Conciliation was attempted at several meetings but was not successful. On March 9, 1972, the instant subpoena was served on respondent's manager of road operations in Baxter Springs ordering the production of employment histories of all over-the-road drivers hired by that terminal since January 1, 1960, for examination by the commission. On March 20, 1972, respondent filed this action for a writ of mandamus, prohibition, or, alternatively, injunction in the district court of Cherokee County. The respondent alleges the subpoena issued by the commission exceeded its statutory authority.

A hearing was held on respondent's motion and the district court granted respondent a permanent injunction on November 28, 1972. The court interpreted the complaint procedure outlined by K.S.A.1971 Supp. 44-1005 as follows:

'. . . (A)fter a finding of probable cause has been made by the Commission under this statute, that the Commission has no further power to investigate or to subpoena documents except after the statutory notice has been given to the employer for a hearing pursuant to the plain and expressed terms of the statute.'

On appeal, the commission contends the district court erred in concluding the statutes limit the commission's use of its subpoena power to preliminary investigations to determine probable cause, and to subpoenaing witnesses and documents in connection with hearings before the commission. The commission further contends it was error to enjoin its subpoena on the ground it was not issued in exercise of one of these functions. The question on appeal, then, is whether the complaint procedure outlined in K.S.A.1971 [214 Kan. 122] Supp. 44-1005 limits the commission's investigatory and subpoena powers authorized by K.S.A.1971 Supp. 44-1004(4) and (5).

The authority under which the commission was investigating the respondent is provided in K.S.A.1971 Supp. 44-1004:

'The commission shall have the following functions, powers and duties:

* * *

* * *

'(4) To receive, initiate, investigate, and pass upon complaints alleging discrimination in employment and public accommodations because of race, religion, color, sex, national origin or ancestry.

'(5) To hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, or in connection with the investigation to require the production for examination of any books or papers pertinent to the proceedings, where a complaint has been properly filed with the commission. . . .'

Subsection (5) has been amended to provide other tools of discovery. (K.S.A. 44-1004(5).) The amendment was not in effect at the time the subpoena in question was issued, but respondent contends the amendment is an important indication of the limitations on the commission's power of subpoena intended by the 1971 statute. As amended, subsection (5) reads:

'(5) To subpoena witnesses, compel their appearance, require the production for examination of records, documents and other evidence or possible sources of evidence and to examine, record and copy such materials and take and record the testimony or statements of such persons. The commission may issue subpoenas to compel access to or the production of such materials, or the appearance of such persons, and may issue interrogatories to a respondent to the same extent and subject to the same limitations as would apply if the subpoena or interrogatories were issued or served in aid of a civil action in the district court. . . .'

Respondent contends the 1972 amendment is significant because it deletes the phrase 'pertinent to the proceedings' which tied the exercise of the commission's power to investigate and issue subpoenas, to the complaint procedure in K.S.A.1971 Supp. 44-1005. The complaint procedure provides for the preliminary investigation by the commission of complaints filed by individuals. It also provides for issuance of complaints by the commission on its own behalf after investigation shows a pattern or practice of discrimination by an employer. After a preliminary investigation by a commission field representative convinces the investigating commissioner there is probable cause to credit the charges of an individual complaint, or after the commission investigates and files its own complaint, the employer is notified and conciliation meetings may be held to attempt to eliminate the discriminatory practice. If conciliation fails or is not attempted the commission may or may not schedule a formal public hearing on the complaint. If a formal hearing is scheduled, the commission shall issue a subpoena on the application of a complainant or respondent for the attendance of any person, or the production for examination of any books, records or documents pertinent to the proceedings. The hearing may lead to an order enforceable by court procedure to cease and desist from such practice, or a finding by the commission that there is no violation of the Act.

The district court has adopted respondent's interpretation, holding the complaint procedure authorizes investigations and the use of subpoenas in aid of investigation in three instances only: (1) To determine probable cause to credit an individual complaint (2) as a preliminary requirement to filing a complaint by the commission; and (3) to obtain witnesses or documents for a formal hearing after setting a date for such hearing. The commission contends K.S.A.1971 Supp. 44-1005, if it affects their powers of investigation and subpoena at all, merely adds to them by extending the subpoena power of the commission to complainants and respondents to secure witnesses and documents for hearings.

The State of New York has a similar act against discrimination and when presented with the same question the court held the commission's subpoena power was not limited to use in the particular procedures outlined for conduct of complaint proceedings, but could be used in general informal investigations to enable the commission to carry out all its statutorily assigned duties. (Mtr. of Broido v. St. Comm. for Hum. Rgts., 40 Misc.2d 419, 243 N.Y.S.2d 101.) The court said:

'. . . It cannot be argued from the fact that a particular procedure was outlined . . . in relation to verified complaints filed with the Commission by claimant . . . and that such procedure includes the subpoena power, that the subpoena power does not exist in connection with the power to investigate into matters before the Commission as covered by the provisions of Section 295 of the Law Against Discrimination. . . .' (p. 421, 243 N.Y.S.2d p. 104.)

New York Executive Law 295, McKinney's Consol.Laws, c. 18 referred to by the court is similar to K.S.A.1971...