Opinion
Nos. 1046, 1047, September Term, 1977.
Decided April 28, 1978. Refiled as reported June 7, 1978.
HUMAN RELATIONS COMMISSION — Subpoena Power — Article 49B, § 14(d) — Commission Has Statutory Authority To Issue Subpoena Duces Tecum In Conducting Preliminary Investigation Of Unlawful Employment Practices — Hearing Judge Not Clearly Erroneous In Finding Preliminary Investigation Of Complaint Conducted As To One Employer — Maryland Rule 1086 — Commission Has Statutory Authority To Issue Subpoena Duces Tecum During Investigation — Article 49B, § 13(a) — Contention Subpoena Power Is Limited To Post-Complaint Investigation And Hearing Stages Finds No Support In Statutory Language Empowering Commission To Issue Subpoenas. pp. 467-471
APPEAL — Question Not Decided Or Raised Below Is Not Reviewable On Appeal — Maryland Rule 1085 — Assuming Question Of Authorization And Conduct Of Preliminary Investigation As To One Employer Implicitly Decided By Hearing Judge, Trial Court Was Not Clearly Erroneous — Maryland Rule 1086. p. 471
J.A.R.
Appeal from the Circuit Court of Baltimore City (SULLIVAN, J.).
From separate orders directing The Augusta Building and Loan Association, Inc., and Thomas F. Costantini, executive vice president, and Vermont Federal Savings and Loan Association and Thomas E. O'Neill, Jr., president, to produce all documents and things specified in the separate subpoena duces tecum issued by the State of Maryland Commission on Human Relations with respect to investigations of complaints of unlawful employment practices, each building association appeals; and this Court granted the Commission's motion to consolidate the appeals.
Judgments affirmed. Costs to be paid by appellants.
The cause was argued before GILBERT, C.J., and MOORE and MELVIN, JJ.
Betsy G. Cunningham, with whom were William C. Rogers, Jr., and John Paul Rogers on the brief, for appellants.
Risselle R. Fleisher, Assistant General Counsel, with whom were George A. Shehan, General Counsel, and W. Stanwood Whiting, Assistant General Counsel, on the brief, for appellee.
These cases, consolidated on appeal by order of this Court, arise from the September 9, 1977, orders of the Circuit Court of Baltimore City (Sullivan, J.) that the appellants, The Augusta Building and Loan Association, Inc. (Augusta) and Vermont Federal Savings and Loan Association (Vermont) comply with the subpoenas duces tecum served upon the respective appellants on March 11 and 9, 1977, by the State of Maryland Commission on Human Relations (the Commission).
From the sparse record before us, we glean that on August 5, 1976, four (4) members of the Commission executed near-duplicate complaints against Augusta and Vermont. In pertinent part, the complaints charged:
House Bill 1344, would amend Md. Ann. Code art. 49B, § 12, by renumbering it as § 9 and changing the approval of the number of Commissioners required to file a complaint from the current four (4) to three (3).
"The . . . [appellants are] subject to the jurisdiction of the Maryland Commission on Human Relations. Acting in accordance with Section 12 (b) of Article 49B of the Annotated Code of Maryland, the Commission finds there is evidence to support an allegation that the . . . [appellants utilize] standards, terms, or conditions, with regard to hiring, recruitment, job assignment and promotional policies, which have a disparate effect on Blacks and women.
The Commission, therefore, has reason to believe that the . . . [appellants have] engaged in unlawful employment practices which have resulted in the exclusion of minority group persons because of their race and sex in violation of Article 49B of the Annotated Code of Maryland."
The complaints, accompanied by letters dated October 1, 1976, were received by the appellants "[o]n or about October 6, 1976. . . ."
As we have noted, the Commission served each of the appellants with a subpoena duces tecum "[i]n accordance with the authority contained in Article 49B, § 14(d) of the Annotated Code of Maryland," commanding the production of any and all records, documents, requisitions, memoranda and other writings pertaining to the employment practices of the appellants for the period of January 1, 1976, to December 31, 1976. Augusta and Vermont refused to produce the subpoenaed materials.
The Commission, seemingly of the belief that "[s]ince authority is the oldest means of persuasion known to man, it is also the most universally effective," pursuant to Md. Ann. Code art. 49B, § 14(d), filed in the circuit court petitions "For Order Directing Production of Documents" against Augusta and Vermont. Separate hearings were held on each case on September 7, 1977. Two (2) days later, the court ordered Augusta and Vermont to "produce all documents and things specified in the" subpoenas duces tecum at the Commission's offices within fifteen (15) days of the court's order. Dissatisfied by Judge Sullivan's decision, Augusta and Vermont have brought their cause to this Court. They shall, however, fare no better than they did in the circuit court.
R. Oliver, R. Cortright and C. Hager, The New Training for Effective Speech 358 (1946).
Md. Ann. Code art. 49B, § 14(d) provides in pertinent part:
"In case of disobedience to a subpoena, the Commission may apply to a circuit court in any county or to a court of appropriate jurisdiction in the Supreme Bench of Baltimore City for an order requiring the attendance and testimony of witnesses and the production of books, papers, records, and documents. . . . [T]he court may issue an order requiring the attendance and testimony of the witness and the production of the books, papers, records and documents. Any failure to obey such an order of the court may be punished by the court as a contempt thereof."
The appellants present four (4) questions which variously attack the statutory authority of the Commission to issue subpoenas duces tecum on the basis of allegedly defective complaints and supposedly prior to the conducting of properly authorized preliminary investigations. Md. Ann. Code art. 49B, § 12(b).
All the appellants' questions and supporting arguments were sunk on the shoals of Banach v. State of Maryland Comm'n on Human Relations, 277 Md. 502, 512-13 (1976), where the Court, speaking through Judge Levine, held "that the Human Relations Commission possesses statutory authority to issue a subpoena duces tecum in connection with a preliminary investigation under Art. 49B, § 12(b)." (Emphasis supplied.)
Md. Ann. Code art. 49B, § 12(b) provides:
"Whenever the Commission has received reliable information from any individual or individuals that any person has been engaged or is engaged in any discriminatory practice within the scope of this article, and after a preliminary investigation by the Commission's staff authorized by the chairman or vice-chairman it is satisfied that said information warrants the filing of a complaint, the Commission, on its own motion, and by action of not less than four commissioners, may issue a complaint in its name in the same manner as if the complaint had been filed by an individual." (Emphasis supplied.) But see n. 1, supra.
The same day that Banach was filed, the Court handed down its opinion in Soley v. State of Maryland Comm'n on Human Relations, 277 Md. 521 (1976). In Soley, the Court reiterated "that the commission possesses statutory authority to issue a subpoena duces tecum while conducting a preliminary investigation under Art. 49B, § 12(b)." (Emphasis supplied.) 277 Md. at 524. Furthermore, the Court extended its Banach holding to encompass Md. Ann. Code art. 49B, § 13(a) by flatly declaring, "We hold . . . that the Human Relations Commission possesses statutory authority to issue a subpoena duces tecum during an investigation. . . ." 277 Md. at 525.
It is patent from Banach and Soley, as well as the language of Md. Ann. Code art. 49B, § 12(b), that the authorization by the Commission's chairman or vice-chairman of a preliminary investigation, not the subsequent filing of a Commission complaint, is the sine qua non for the issuance of a valid subpoena duces tecum. Any alleged defects in the complaints in this case, which were filed after the initiation of the preliminary investigations, are irrelevant to the validity of the properly executed subpoenas duces tecum. The "contention that the subpoena power is limited to the post-complaint investigation and hearing stages finds no support in the language of" Md. Ann. Code art. 49B, § 14(d) which empowers the Commission to issue subpoenas. Banach v. State of Maryland Comm'n on Human Relations, 277 Md. at 509.
In addition to their assault upon the allegedly defective Commission complaints, Augusta and Vermont question whether the Commission may "validly issue and compel compliance with a subpoena duces tecum prior to conducting a properly authorized preliminary investigation as required by § 12 (b) of Article 49B of the Annotated Code of Maryland?" The appellants put the cart before the horse. It is apparent from Banach and Soley that the conduct or completion of the preliminary investigation is not a condition precedent for the issuance of Commission subpoenas. The preliminary investigation need only be authorized by the Commission chairman or vice-chairman under Md. Ann. Code art. 49B, § 12(b) in order for valid subpoenas duces tecum to issue. Although the Commission enjoys considerable discretion in authorizing the issuance of subpoenas duces tecum pursuant to a properly authorized preliminary investigation, "[t]hat the Legislature may validly confer upon administrative agencies such as the Human Relations Commission the power to compel production of information for purposes of preliminary investigation is well settled." Banach v. State of Maryland Comm'n on Human Relations, 277 Md. at 507.
Augusta and Vermont have failed to produce so much as a single gossamer of evidence that preliminary investigations were not authorized or conducted by the Commission. Indeed, the Commission's complaints and sworn petitions filed in the circuit court alleging the Commission's receipt of reliable information and the conduct of preliminary investigations of Augusta and Vermont evidences that preliminary investigations were approved and executed. Moreover, Judge Sullivan, in the Vermont hearing, found as a fact that a preliminary investigation had been conducted. We are unable to conclude from the record that Judge Sullivan's finding was clearly erroneous. Md. Rule 1086.
As to the Augusta hearing, the question of the authorization and conduct of a preliminary investigation was not plainly raised or decided in the hearing court. The matter is not properly preserved for our review. Md. Rule 1085. Even if the matter were considered to have been implicitly decided by the court, we would be unable to state, on the basis of the record before us, that the court was clearly erroneous. Md. Rule 1086.
Judgments affirmed.
Costs to be paid by appellants.
I concur in the result reached in the opinion of the majority of the panel.
In my view, however, the Order appealed from is not a "final judgment" within the meaning of Cts. Jud. Proc. Art. 12-301 or Art. 41, § 256 and, therefore, the appeal should be dismissed.