Kansas Commission on Civil Rights v. Sedgwick County Mental Health Clinic-South Center

Prager, J.,

dissenting: I respectfully dissent. The result reached by the district court and the majority on the record before us is unduly harsh and is based upon a highly restrictive interpretation of the powers of the KCCR. At the outset it is clear to me that it is impossible for this court to resolve this case due to the state of the record on appeal. The appellee urges the court to view this as the commission’s failure to prepare a record on which an appeal could be based. I disagree. Clearly the trial court failed to comply with Supreme Court Rule No. 116, which requires a district judge to make findings of fact and conclusions of law in all contested matters where there is no jury. The requirements of this rule are mandatory. The purpose of the rule is to advise the parties, as well as this court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. (City of Council Grove v. Ossmann, 219 Kan. 120, 546 P. 2d 1399.) In the past the court has not hesitated to reverse and remand cases for failure to comply with this rule. (Hendrickson v. Drotts, 219 Kan. 435, 548 P. 2d 465; *657Mies v. Mies, 217 Kan. 269, 535 P. 2d 432.) There is simply nothing in the record to show how or why the trial court reached its decision that the KCCR should be denied the right to exercise its subpoena powers in this case.

I further disagree with ■ the majority’s holding that the KCCR as a matter of law did not act “promptly” in issuing the subpoena in question. “Promptly” is a relative term. Determination of what is “prompt” action requires the application of equitable principles and consideration of all of the relevant facts and circumstances for the purpose of doing justice for all the parties involved. The district court and the majority have apparently resolved this question in a vacuum of facts without having before it evidence to show that the appellee was or was not prejudiced by the commission’s delay in investigating the complaint.

Guidance on this point can be found in two cases decided by the United States Court of Appeals for the Fifth Circuit. In Chromcraft Corp. v. United States Equal Emp. Op. Com'n, 465 F. 2d 745, it was held that a delay of more than one year in serving an employer with notice of a discrimination charge was not unreasonable, where the delay was the result of insufficient personnel to process the workload of the EEOC. At the time this case arose the Civil Rights Act of 1964 (42 U. S. C. A. 2000, et seq.) contained a provision calling for “prompt” investigation of complaints similar to that of old K. S. A. 44-1005. The court refused to apply the doctrine of laches to a governmental agency acting to vindicate a public right. There was, of cdurse, no statute of limitations involved. In finding there was not an unreasonable delay the court relied heavily on the excessive backlog of cases before the EEOC and the fact that there was no evidence of a dilatory attitude on the part of the commission.

In E. E. O. C. v. Exchange Security Bank, 529 F. 2d 1214, no unreasonable delay was found in a case involving an unexplained delay of twenty-one months in the issuance of a subpoena, coupled with an additional delay of eighteen months in seeking enforcement of the subpoena. The decision was based in part upon Chromcraft. The court also relied upon the federal Administrative Procedure Act (5 U. S. C. A. 706), which limits judicial review of agency action to require a showing of prejudice before such action can be set aside for lack of punctuality. Passage of time alone did not make the delay unreasonable. The court found no suggestion of “slothfulness, lethargy, inertia or caprice.”

*658Similarly, in the case at bar, no prejudice has been shown by the appellee. The prejudicial effects mentioned by the majority are matters outside the scope of the record. These apparently come from the brief of appellee and oral argument. There is no evidence to show whether the appellee’s records sought by the subpoena are unavailable or whether the granting of a subpoena would otherwise prejudice the rights of the appellee.

A final point should be noted with regard to the order of the district court. This order appears to be injunctive in nature, prohibiting the KCCR from issuing further subpoenas in this matter. In my judgment the district court abused its discretion in issuing such an order. The KCCR, under K. S. A. 44-1005, may on its own initiative investigate possible acts of discrimination. It has the same powers during this type of investigation as are conferred when an individual complaint is involved. Among these powers is the power of subpoena. Unless a subpoena is found to be unreasonable or oppressive, the statutes granting subpoena power are to be liberally construed to permit inquiry. (Kansas Commission on Civil Rights v. Carlton, 216 Kan. 735, 533 P. 2d 1335.) It is therefore clear that the KCCR could on its own motion conduct an investigation of the incident in question here. The order of the trial court was overly broad and improper under the circumstances.

The opinion of the majority results in a summary denial of relief to a complainant who has no control over the time schedule of the KCCR. The complainant has been made the victim of the delay of a third party, delay which may well have been unavoidable and which may not have prejudiced the rights of the appellee. The majority notes that a prime statutory objective of the Kansas Acts Against Discrimination is early resolution of complaints. There is no evidence in the record tending to indicate an earlier resolution was possible here. Another prime objective of the statute is the elimination and prevention of discrimination and to assure equal opportunities to persons covered by the act. The majority opinion serves only to stifle this objective. I would reverse the case with instructions to the trial court to conduct an evidentiary hearing and make findings of fact and conclusions of law as required by Supreme Court Rule No. 116.

Kaul and Miller, JJ., join in the foregoing dissenting opinion.