State Commission on Human Relations v. Baltimore County

Lowe, J., delivered the opinion of the Court. —background— So awesome was the power of the subpoena looked upon at common law that the English courts were only able to obtain it by subterfuge. It was "invented” by John Waltham, bishop of Salisbury and chancellor to King Richard II, by a strained interpretation of the statute of Westminster 2. This dangerous "novelty devised by the subtlety of Chancellor Waltham, against the form of the common law” caused "the commons [to be] repeatedly urgent to have the writ of subpoena entirely suppressed” throughout the reigns of both Henry IV and V. 1 Despite its illegitimate birth and legislatively precarious early life, it has over the centuries been accepted as so commonplace that in Maryland it is entrusted not only to the courts, but to over forty administrative agencies ranging ⁴⁷ alphabetically from the Aviation Commission to the Workmen’s Compensation Commission, and in scope from cosmetologists to county commissioners — for enforcement of dog license requirements. 2 Ironically, however, the Legislature has withheld the power not only from the Governor of Maryland but its Attorney General as well. The utility of the compulsion process as an investigatory device was acknowledged by Blackstone and is as broad in scope as its user’s imagination.

Its careful use and seldom abuse, up to now, whether ad testificandum (to give evidence), or duces tecum (to produce books or records), has substantially diminished the original public fear of any abuse of this power by government officials. Such complacent acceptance is seen most pronouncedly during the last half century in the attitude of courts in enforcing administrative investigatory subpoenas. Equitable Trust Company v. State of Maryland Commission on Human Relations, 287 Md. 80, 89-100 (1980). Between 1924 and 1950 the Supreme Court has moved from the limited enforcement view expressed by Mr. Justice Holmes in Federal Trade Com. v. American Tobacco Co., 264 U.S. 298, 306 (1924), "The right of access given by the statute is to documentary evidence, — not to all documents, but to such documents as are evidence.

The analogies of the law do not allow the party wanting evidence to call for all documents in order to see if they do not contain it. Some ground must be shown for supposing that the documents called for do contain it.”, to the language of Mr. Justice Jackson in United States v. Morton Salt Co., 338 U.S. 632, 652 (1950): "Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy ⁴⁸ themselves that corporate behavior is consistent with the law and the public interest.” The ephemeral fears of our forefathers appeared more substantial when this Court pointed out in Equitable Tr. v. State of Md. Comm’n, 42 Md. App. 53 (1979), that data subpoenaed from 63,000 accounts which would entail 9,600 work hours to supply, at a cost conservatively of $96,000, would have to be produced because: " 'If the information or records sought is relevant or material to the charge under investigation and the [agency] proceeds as authorized by the statute, then any inconvenience or difficulty (which is actually inherent in any compulsory process proceeding) must be considered as a 'part of the social burden of living under government.’ ’ ” Id. at 71 , quoting EEOC v. U.S. F. & G. Co., 414 F. Supp. 227 (D. Md. 1976) which, in turn, quoted from H. Kessler & Co. v. EEOC, 53 F.R.D. 330 (N.D. Ga. 1971). Fortunately for Equitable, the Court of Appeals reversed as (Equitable Trust Company v. State of Maryland Commission on Human Relations, 287 Md. 80 (1980)); but unfortunately for others who may be encumbered by this "social burden of living under government”, the Court of Appeals was compelled to acknowledge only limited means of relieving the oppressiveness of an agency subpoena. —the facts— On January 12, 1976, James H. Whye, a black male employee of nine years with the Baltimore County Department of Highways (the Department), filed with the Maryland Commission on Human Relations (the Commission) a sworn complaint pursuant to Md. Code, Art. 49B, § 9 (a), describing how the Department was maintaining racially segregated facilities for its employees to his detriment. He added a sentence expressing a "feeling” that the Department was discriminating against blacks in hiring practices.

On April 22, 1976, he amended his ⁴⁹ complaint that he "further believe[d]” that the discrimination extended to promotion practices. The amended complaint was as follows: "I have worked for the Department of Highways for 9 years as a chauffeur laborer. In the work area there are 2 buildings used by the men as assembling areas. One building is old & used by the Black workers.

The other building, which is new & has more facilities is used by the White workers. I believe the Department of Highways is discriminating against me and other Blacks by maintaining segregated facilities. I further believe the Department is discriminating against Blacks as a class in the areas of hiring & promotion.” 3 In its brief, appellant, State of Maryland Commission on Human Relations, states that both complaints "were duly authorized for investigation ... by then Executive Director of the Commission”, presumably referring to the procedure described in Md. Code, Art. 49B, § 10 (a) which states: "After the filing of any complaint the executive director shall consider the complaint and shall refer it to the Commission’s staff for prompt investigation and ascertainment of the facts. The results of the investigation shall be made as written findings.

A copy of the findings shall be furnished to the complainant and to the person, firm, association, partnership or corporation (hereinafter ⁵⁰ referred to as the 'respondent’), against whom or which the complaint is made.” The Commission’s staff then pursued the investigation. What then transpired is described by the appellant Commission in its brief. "During the early stages of the investigation, the Commission, after interviews with both black and white employees of Respondent, made a preliminary determination that the Baltimore County Department of Highways was not maintaining segregated facilities — i.e., that there was no probable cause to believe that the law was in that respect being violated. In order to complete its investigation and to make a determination as to the remaining allegations of the complaint, the Commission’s investigator requested from Appellee specific and detailed information regarding appellee employment practices.

Appellee, while supplying the Commission with a small portion of the information sought, continually and steadfastly refused to comply with the substantial portion of the Commission’s request. As a result of Appellee’s refusal to comply with the Commission’s requests for documents and information, the Commission issued, in accordance with Sec. 11 (d) of Article 49B, a subpoena duces tecum on August 26, 1976, requesting that the County produce for the Commission’s inspection specific documents concerning certain employment practices for the period June 1, 1975 to June 30, 1976.” The substance of the subpoena was as follows: "In accordance with the authority contained in Article 49B, Section 14 (d) of the Annotated Code of Maryland (1968 Replacement Volume), you are hereby directed to appear before the Maryland Commission on Human Relations, Suite 300, Metro ⁵¹ Plaza, Mondawmin Mall, Baltimore, Maryland 21215 at 10:00 a.m. on Friday, September 17, 1976 in the matter entitled James Whye vs. Baltimore County Department of Highways and deliver to Frederick J. Dalton, Intergroup Relations Representative the following documents. The documents are described on the attached 2 pages, on each of which the Executive Director’s signature appears. ALL QUESTIONS REFER TO THE BALTIMORE COUNTY BUREAU OF HIGHWAYS FOR THE PERIOD OF JUNE 1, 1975 THROUGH JUNE 30, 1976. 1.

Application of all persons who applied for any jobs with the Bureau. 2. Applications of all persons who were hired for any and all jobs with the Bureau. 3. Applications of all persons whose applications were rejected, with indications of reasons for rejection. 4. Any and all documents, memoranda and other writings or copies thereof describing the duties and qualifications for all vacancies which occurred, indicating how much weight is assigned to each qualification. 5.

Any and all written tests or copies thereof, indicating for which vacancies administered. 6. The validation study or copy thereof for any of the tests listed in response to question #5 above. 7. Any and all applications and other writings or copies thereof of persons applying for promotions, indicating names, race and dates of application. If rejected, indicate reason and name and race of the decision maker(s).

If selected, indicate dates of promotion and name and race of decision maker. ⁵² 8. Any and all documents, memoranda and other writings or copies thereof describing the duties and qualifications for all promotional openings which occurred, indicating how much weight is assigned to each qualification. 9. Any and all written tests or copies thereof, indicating for which vacancies administered. 10. The validation study or copy thereof for any of the tests listed in response to question #9 above. 11.

All records of or lists of employees as of June, 1976 by job category showing name, race, sex, date of hire, initial job classification and date present job classification became effective.” Upon the refusal of the County to respond, a second subpoena of like import was issued. The County’s refusal to comply this time was met with a petition to enforce filed pursuant to Art. 49B, § 11 (d) in the Circuit Court for Baltimore County. After an evidentiary hearing and argument, the trial judge denied the petition because he found that: 1. The petitioner was not a person aggrieved by either hiring or promotion practices within the contemplation of Art. 49B, § 9 (a). 2.

That neither the complaint nor evidence showed an occurrence of discrimination in hiring or promotion injurious to the complainant. 3. That the subpoena requisitions were neither " 'relevant’ ” nor " 'necessary’ ” to the investigation as required by Art. 49B, § 11 (d). The Commission has appealed that denial, contending that: "Where the Commission sought an Order to Compel Production of Documents pursuant to a validly issued Commission Subpoena Duces Tecum and ⁵³ produced evidence at the Circuit Court that the subpoenaed information was relevant and necessary for the Commission’s proceedings, the Circuit Court Order denying the Commission’s Petition for an Order Compelling Production of Documents was clearly erroneous”. The Commission argues that the court below "was without jurisdiction to rule upon the sufficiency of the allegations made in Mr. Whye’s complaint” because that prerogative was solely the executive director’s as indicated in Art. 49B, § 10 (a) above.

It contends that the court was limited to applying the threefold test in Banach v. St. Comm’n on Human Rel., 277 Md. 502 (1976), for determining the validity of a subpoena: 1. Whether the inquiry is authorized by statute. 2. Whether the information sought is relevant to the inquiry. 3. Whether the demand is too indefinite or overbroad.

Despite appellant’s contention to the contrary, the court applied that threefold test. The Commission overlooks that in order for the court to decide whether an inquiry is authorized by statute, or the information sought is relevant, it necessarily must review the scope of the complaint. It also overlooks the fact that § 10 (a) does not provide the executive director a discretionary prerequisite; it mandates that he "shall” consider and "shall” refer "any” complaint for a preliminary investigation. In this case, as pointed out by appellant itself, there has been full and satisfactory compliance and a conclusion to the segregated facilities charges in Mr. Whye’s complaint.

That which is at issue is the single sentence wherein Mr. Whye stated: "I further believe the Department is discriminating against Blacks as a class in the areas of hiring & promoting.” ⁵⁴ In order to determine whether the statute authorized the inquiry, Banach, supra at 506 , the complaint must comply with statutory prerequisites, one of which in this case is § 9 (a) elliptically providing that: "The complaint shall state . . . the act of discrimination together with the particulars thereof. ...” 4 The discriminatory act complained of in regard to segregated facilities was set forth along with the particulars thereof, and the Department admittedly cooperated with the investigation of that complaint. The Commission also admits that the subpoena is not relevant (Banach, supra) to that particularized portion of the complaint relating to segregated facilities. The trial judge must therefore look for "the act of discrimination” and "particulars thereof’ regarding hiring and promotion practices to see whether the inquiry, which is the subject matter of the subpoena, is authorized by statute. There was obviously no "particular” or specific "act” of discrimination relating to Mr. Whye’s hiring or promotion set forth in the complaint and it follows that the complaint, reflecting only the complainant’s "belief’ or "feeling”, is not a sufficient statutory compliance to authorize an inquiry. 5 In our version of Equitable Tr. v. State of Md. Comm’n, supra, we pointed out that the Court of Appeals in Banach ⁵⁵ addressed the "particulars” requirement of what is now § 9 (a), holding that the failure to particularize the complaints there did not preclude the Commission’s power to issue subpoenas while conducting a § 9 (b) preliminary investigation.

At first blush that conclusion would seem to support the Commission’s contention that Banach and its companion case, Soley v. St. Comm’n on Human Rel., 277 Md. 521 (1976), hold that the lack of particulars will not render unenforceable a validly issued investigatory subpoena. But there is a distinction in § 9 (referred to in those cases as § 12) glossed over in appellant’s brief, that was obscured in Banach and Soley because it was not at issue in either. Section 9 deals with two distinct types of complaints. Section 9 (a) authorizes and addresses an individual complaint, i.e., by "[a]ny person claiming to be aggrieved”, which complaint, the statute says, must be particularized.

Section 9 (b) authorizes a complaint issued by the Commission itself which it may do simply upon receiving "reliable information” and it is its own judge of reliability. Banach, supra. As previously noted, § 10 mandates a preliminary investigation by the