Augusta Building & Loan Ass'n v. State Commission on Human Relations

Gilbert, C. J., delivered the opinion of the Court. Moore, J., concurs and filed a concurring opinion at page 471 infra. 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 1 executed near-duplicate complaints against Augusta and Vermont.

In pertinent part, the complaints charged: “The ... [appellants are] subject to the jurisdiction of the Maryland Commission on Human Relations. Acting in accordance with Section 12 (b) of Article ⁴⁶⁸ 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, Section 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,” 2 pursuant to Md. Ann. Code art. 49B, § 14 (d), 3 filed in the circuit court ⁴⁶⁹ 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. 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, 271 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).” 4 (Emphasis supplied.) 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).” ⁴⁷⁰ (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