Summary
In Gunn, the statute provided OCRC the authority to petition the court of common pleas for enforcement of an administrative subpoena if an individual refuses to obey it.
Summary of this case from Ohio Elections Comm. v. Ohio ChamberOpinion
No. 75-541
Decided March 17, 1976.
Civil Rights Commission — Proceedings on complaint — Subpoena duces tecum — Summary enforcement by court — — R.C. 4112.04(B)(6) — Allowed, when.
Upon refusal to obey a subpoena duces tecum issued by the Civil Rights Commission, the commission may petition the Court of Common Pleas for summary enforcement of the subpoena, pursuant to R.C. 4112.04(B)(6), without filing a complaint or causing issuance of summons.
APPEAL from the Court of Appeals for Summit County.
In October 1973, Michael Goodman, an employee of Roadway Express, Inc., filed a charge with the Ohio Civil Rights Commission, alleging that Roadway had engaged in unlawful discriminatory practices by disqualifying him for weekend work.
During the investigation, the commission issued a subpoena duces tecum to appellant, Daniel M. Gunn, Roadway's Vice-President of Employee and Labor Relations, demanding the production of attendance records and time cards for Goodman and two other employees of Roadway, covering a two month period in 1973, and the bid sheets for all weekends during this time period.
Roadway filed a petition with the commission to revoke the subpoena, contending that it did not relate to any matter before the commission and that compliance would be unduly onerous. The petition was denied and, because of continued noncompliance by appellant, the commission filed a petition to enforce the subpoena in the Court of Common Pleas.
After determining that the Rules of Civil Procedure were applicable, the court found that the commission had not caused issuance of a summons to appellant and dismissed the petition.
The Court of Appeals held that R.C. 4112.04(B)(6) allows for summary enforcement of commission subpoenas, and reversed and remanded the cause to the trial court to issue a show cause order without a summons.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. William J. Brown, attorney general, Mr. Andrew J. Ruzicho, Mr. Earl M. Manz and Mr. Gene W. Holliker, for appellee.
Messrs. Buckingham, Doolittle Burroughs, Mr. Edward C. Kaminski and Mr. David H. Shaffer, for appellant.
Appellant contends that a proceeding to enforce a subpoena duces tecum issued by the Civil Rights Commission, pursuant to R.C. 4112.04(B)(6), is governed by the Rules of Civil Procedure and, therefore, must be commenced by the filing of a complaint and issuance of summons.
R.C. 4112.04(B)(6) states:
"In case of contumacy or refusal to obey a subpoena, the commission or person at whose request it was issued may petition for its enforcement in the Court of Common Pleas in the county in which the person to whom the subpoena was addressed resides, was served, or transacts business."
The scope of the Civil Rules is found in Civ. R. 1, which provides, in subsection (A):
"These rules prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity, with the exceptions stated in subdivision (C) of this rule."
Subsection (C) states:
"These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (7) in all other special statutory proceedings * * *."
We agree with the view of both lower courts that an action to enforce a subpoena duces tecum under R.C. 4112.04(B)(6) constitutes a "special statutory proceeding" within the meaning of Civ. R. 1(C)(7). Hence, our inquiry must focus upon whether the nature of such an action renders the Civil Rules "clearly inapplicable."
In Cudahy Packing Co. v. National Labor Relations Board (C.A. 10, 1941), 117 F.2d 692, the NLRB had obtained an order from a district court compelling compliance with a subpoena duces tecum it issued to Cudahy. On appeal, Cudahy asserted that the suit to enforce the subpoena must be initiated by the filing of a complaint and issuance of process; however, the court rejected that argument and stated at page 694:
The order was issued pursuant to Section 161(2), Title 29, U.S. Code, which states:
"In case of contumacy or refusal to obey a subpoena issued to any person, any district court of the United States * * * within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the board shall have jurisdiction to issue to such person an order requiring such person to appear before the board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question * * *."
"The company's contention that a suit to enforce obedience to a subpoena must be begun by the filing of a complaint and issuance of process is not borne out by the act. The act specifically provides that upon refusal to obey a subpoena the board may file an application with the proper district court and thereupon the court shall have jurisdiction to issue to such person an order requiring him to appear before the board and to produce evidence touching the matter under investigation or in question."
In Goodyear Tire Rubber Co. v. National Labor Relations Board (C.A. 6, 1941), 122 F.2d 450, 451, the court stated:
"* * * We agree with the district court that the proceedings plainly are of a summary nature not requiring the issuance of process, hearing, findings of fact, and the elaborate process of a civil suit. * * *
"* * * Obviously, if the enforcement of valid subpoenas, the issuance of which is a mere incident in a case, were to require all of the formalities of a civil suit, the administrative work of the board might often be subject to great delay."
The concern of the Goedyear court regarding delay was reiterated by the Supreme Court of Colorado in People v. District Court (1968), 164 Colo. 385, 435 P.2d 374. There, after the state Commissioner of Agriculture obtained a court order directing compliance with a subpoena, the order was quashed because of the commissioner's failure to file a complaint and issue process. In finding that the order to quash was erroneous, the court noted that an enforcement proceeding under the statute was not an independent judicial proceeding, but was merely ancillary to the prior issuance of a subpoena by the commissioner and, at page 392, stated:
The order was issued pursuant to C.R.S. 1963, 7-3-19(3), which provided, in part:
"* * * Upon failure or refusal of any witness to obey any subpoena, the commissioner may petition the district court, and upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the order of court shall be punishable as a contempt of court."
Colorado Civ. R. 81(A) states that:
"* * * These rules do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute."
"* * * Our study of C.R.S. 1963, 7-3-19(3) convinces us that the legislature did not intend to make a so-called `federal case' out of the effort of * * * [the commissioner] to get an order of court that Tepper comply with its subpoena. To the contrary, in our view, by the very language it used the legislature intended that the procedure should be rather summary in nature. Certainly, if * * * [the commissioner's] request is to be treated in all respects as an ordinary civil proceeding, a recalcitrant witness, such as Tepper, could, as he has, slow down to a virtual standstill the operation of this particular administrative agency by taking advantage of the law's well known delay. If the legislature intended that such proceeding was to be handled as just another civil proceeding, it could have said so. But it did not, and from the language of the statute itself, it is apparent to us that the legislature intended to provide a simplified procedure for the judicial enforcement of administrative subpoenas."
In the case at bar, the commission's position is buttressed by the provisions of Civ. R. 1(B) and R.C. 4112.08.
Civ. R. 1(B) states:
"These rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice."
R.C. 4112.08 provides, in part:
"The provisions of Sections 4112.01 to 4112.08 of the Revised Code, shall be construed liberally for the accomplishment of the purposes thereof and any law inconsistent with any provision hereof shall not apply."
To render the enforcement provisions of R.C. 4112.04(B)(6) subject to the complaint and summons requirements of the Civil Rules would be contrary to the above mandates; such a result would cause significant delay in the commission's investigatory process and, in so doing, would frustrate its statutory duty of eliminating unlawful discriminatory practices. Additionally, as in Cudahy Packing Co. and District Court, supra, proceedings under R.C. 4112.04(B)(6) are ancillary to the commission's exercise of its investigatory function.
The necessity of a civil action to enforce a subpoena under R.C. 4112.04(B)(6) would require the filing of a complaint and service of summons (Civ. R. 3[A] and 4), and the defendant would be given 28 days in which to answer (Civ. R. 12[A][1]). The unwilling party could further delay the investigatory process through the use of motions which are permitted under the Civil Rules, and by filing appeals or other actions which, although subsequently dismissed, would consume potentially valuable time.
In view of all of the foregoing, it is our conclusion that the Civil Rules are not applicable to subpoena duces tecum proceedings under R.C. 4112.04(B)(6), insofar as they require the filing of a complaint and issuance of summons, and that summary enforcement was contemplated by the General Assembly. Thus, upon refusal to obey a subpoena duces tecum issued by the Civil Rights Commission, the commission may petition the Court of Common Pleas for summary enforcement of the subpoena, pursuant to R.C. 4112.04(B)(6), without filing a complaint or causing issuance of summons.
Of course, as in all such cases, a subpoena duces tecum which is brought to a court for enforcement is subject to the requirements of pertinency to the issues being litigated and reasonableness as to the difficulty and cost of production of the material sought ( Cf. Civ. R. 45 [B]); resolution of such questions is properly the subject of a hearing held pursuant to the show cause order mandated by the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.