Kansas Commission on Civil Rights v. Sedgwick County Mental Health Clinic-South Center , 220 Kan. 653 ( 1976 )

The opinion of the court was delivered by

Harman, C.:

This is an appeal by the Kansas Commission on Civil Rights (KCCR) from a district court order summarily denying an application for an order directing the Sedgwick County Mental Health Clinic-South Center to comply with a subpoena duces tecum issued by KCCR.

The proceeding grows out of a complaint filed October 18, 1972, with KCCR by Shirley Naylor, a black American, wherein she alleged she had been employed on July 3, 1972, at the Sedgwick County Mental Health Clinic at its South Center and that agency had on October 13, 1972, discriminated against her by reason of her race in terminating her employment as receptionist-secretary and clerk-typist, in violation of the Kansas Act Against Discrimination (K. S. A. 44-1001, et seq., as amended).

According to KCCR’s brief the complaint was not assigned to a field representative for investigation until November 18, 1974— twenty-five months after it was filed — and presumably the respondent agency at that time received its first notice of the complaint. It denied KCCR voluntary access to its records. On February 11, 1975, KCCR issued and served on respondent a subpoena duces tecum pursuant to authority granted in K. S. A. 1974 Supp. 44-1004 (5). It requested production of the complainant’s personnel file and the personnel files of all receptionist-secretaries and clerk-typists employed by respondent from July 3, 1972, to date. Respondent did not comply with the subpoena and on March 7, 1975, KCCR initiated the present proceeding pursuant to 44-1004 (5) for an order directing respondent to comply with it.

The matter came on for hearing May 16, 1975. We are, told the hearing was conducted in chambers with no reporter present. Apparently no evidence was offered and the court had before it only KCCR’s application for an order to enforce a subpoena to which was attached the Naylor complaint and the subpoena duces tecum. The court’s denial order is contained in a journal entry prepared by respondent which merely recited:

“The Court being fully advised in the premises and after listening to arguments of counsel finds as follows:

“1. That no subpoena will be issued pursuant to the matter of Shirley Naylor vs. Sedgwick County Department of Mental Health-South Center; Kansas Commission’ on Civil Rights docket number E-169-73W.”

This appeal ensued.

During the time period relevant to the issue here, presented K. S. A. 44-1005 provided:

“After the filing of any complaint by an aggrieved individual, the commission, or by the attorney general, the commission shall prior to investigation of the complaint, serve a copy on each of the parties alleged to have violated this act, and shall designate one of the commissioners to make, with the assistance of the commission’s staff, prompt investigation of the alleged act of discrimination. . . .” (Emphasis added.)

The import of the foregoing is direction to KCCR to make prompt investigation of all complaints, prior to which the party complained against is to have notice of the matter by service upon it of a copy of the complaint. No particular time is specified in which the commission’s actions are to be taken (Effective July 1, 1975, the, foregoing statute was amended to require that the commission shall within seven days after the filing of a complaint by an aggrieved individual, the attorney general or by the commission, serve a copy upon any party alleged to have violated the act [Laws 1975, Chap. 264, §4]).

Appellant argues it should not be stymied by the delay because its general authority to investigate is not dependent upon the filing of a complaint by an aggrieved individual and the proceeding is one which is not adversary in nature. This is correct in the abstract; however, here a specific complaint by an allegedly aggrieved individual was made and it became the subject of the investigation. Appellant also asserts there is no contention the subpoena duces tecum called for the production of irrelevant matter or that it was unreasonable or oppressive. It urges there is no indication of slothfulness or dereliction on its part but says there was a backlog of fifteen months’ oases when the Naylor complaint was filed; that meanwhile the commission’s jurisdiction and mandate to investigate various types of complaints had been expanded so as to result in an increased caseload without a corresponding increase in personnel.

Appellee asserts that appellant’s failure to serve promptly a copy of the complaint upon it irreparably prejudiced its rights. The contention is that these serious difficulties would be encountered by appellee: Attempting to locate personnel records after such a long period of time, scattered records, changing personnel, faded memories as a result of passage of time, loss of opportunity for early conciliation if the complaint had merit, and finally, the possibility of reinstatement and payment of back wages for more than two years.

Effective December 28, 1973, KCCR adopted the following rule: “A copy of the complaint and any amendments shall be promptly served by the commission on the respondent”. (K. A. R. 21-41-11.) It cannot be said appellant complied either with its own rule or the statute directing prompt notification. .It is, of course, highly desirable that a party complained against be notified of the complaint as soon as possible and that the complaint be investigated promptly. In discrimination cases this is particularly important because in them intent usually is a material factor, something not always easy to prove or disprove. K. S. A. 44-1005 has always provided: “The purpose of the investigation shall be to resolve any such problems promptly”. (Emphasis added.) Thus a prime statutory objective is early resolution of the complaint which can include conciliation.

Here the complaint was filed five days after the alleged act of discrimination. A relatively simple and easily performed act, a short letter of transmittal to appellee of a copy of the complaint upon filing, would have given notice of the matter at issue and any claim to prejudice because of late investigation would have been largely dispelled. Appellee as a public body is obliged to follow the law and if it found some of its employees were in fact violating the anti-discrimination act it could upon notice of any complaint take steps to conciliate and rectify the matter. Yet appellee was given no notice of any kind for more than twenty-five months and it had no opportunity for prompt conciliation.

In Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P. 2d 1335, we held that 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. We were dealing there with enforcement of a subpoena duces tecum issued by KCCR and implicit in the decision is recognition of a district courts discretion in determining whether a particular subpoena is unreasonable or oppressive under the circumstances and should be enforced.

Under the particular facts we believe the trial court here, in which discretion is initially vested, could reasonably have found that appellee was prejudiced in the discharge of its own responsibilities by appellant’s long delay in giving notice of the complaint against it. Hence we cánnot declare abuse of discretion in the court’s action.

The judgment is affirmed.

APPROVED BY THE COURT.