Banach v. State Commission on Human Relations

Murphy, C. J.,

dissenting:

While I agree completely with the majority that “the Legislature may validly confer upon administrative agencies such as the Human Relations Commission the power to compel production of information for purposes of preliminary investigation,” I respectfully dissent from the Court’s holding that the Legislature has in fact granted such authority to the Commission in the conduct of the “preliminary investigation” mandated by Code, Article 49B, § 12 (b). In holding that the Commission has the power to issue subpoenas in connection with a § 12 (b) “preliminary investigation,” the majority overlooks the statutory framework which evidences a clear statutory purpose to grant subpoena power to the Commission only after the filing of a complaint by either an aggrieved person under § 12 (a) or by the Commission itself under § 12 (b).

This case originally involved four complaints filed pursuant to § 12 (a) by individuals alleging discrimination by The A. S. Abell Company. The Commission attempted to obtain detailed data from the personnel manager, Mr. Banach; on advice of counsel, he refused to supply the data on the ground that the complaints lacked the particularity which § 12 (a) requires. With these complaints in hand, *518however, and based in particular on the information contained in the Swagger1 and Dickman2 complaints, the Commission decided to utilize the alternative procedure available to it under § 12 (b); that subsection requires a “preliminary investigation” by the Commission’s staff as a condition precedent to the filing of a complaint by the Commission on its own motion. As part of this “preliminary investigation,” the Commission issued a subpoena duces tecum which it deemed authorized by § 14 (d). Therefore, the central issue in the case became whether § 14 (d) provided for the issuance of a subpoena in a § 12 (b) “preliminary investigation” by the Commission.

That each part or section of a statute should be so construed that all its parts harmonize with each other and are consistent with the statute’s general object and scope is well settled. Associated Acceptance Corp. v. Bailey, 226 Md. 550, 556, 174 A. 2d 440 (1961); Pittman v. Housing Authority, 180 Md. 457, 464, 25 A. 2d 466 (1942). “[I]f there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, *519meaningless or nugatory.” Thomas v. Police Commissioner, 211 Md. 357, 361, 127 A. 2d 625 (1956).

When these principles are applied to the statutory scheme of §§ 12-14, it is plain that the Commission’s subpoena power does not attach until after a proper complaint is filed under § 12 (a) or 12 (b). The statutory scheme provides for investigation, conciliation, and hearing processes for alleged instances of discrimination. We are here concerned with the investigation process, for which §§12 and 13 provide dual procedures. First, if an individual files a particularized complaint under § 12 (a), § 13 (a) instructs the Commission’s staff to then make a “prompt investigation and ascertainment of the facts,” and it is authorized by § 14 (d) to issue subpoenas in aid of its investigation. The § 12 (b) procedure, under which the Commission proceeded in this case, is activated by the reception of “reliable information” (as determined by the Commission), which need not be in the form of a particularized complaint. Before a § 13 staff investigation is warranted, however, § 12 (b) requires a “preliminary investigation” by the Commission’s staff to determine whether the information warrants the filing of a complaint by the Commission itself. That the “preliminary investigation” mandated by § 12 (b) is not the same as the “prompt investigation” of § 13 is wholly apparent. The § 13 investigation occurs “after the filing of any complaint.” Since the § 13 investigation would follow after a “preliminary investigation” and the Commission’s filing of a § 12 (b) complaint, by permitting the subpoena power to be used in a “preliminary investigation” prior to the filing of a Commission complaint the majority has rendered the full-blown § 13 investigation nugatory and duplicitous. To avoid this needless result, the Court should have recognized that the subpoena power attached only to a post-complaint § 13 investigation; the pre-complaint § 12 (b) “preliminary investigation” would consist of staff appraisal of the information which the Commission received and its suitability for incorporation into a particularized Commission complaint.

That the statutory scheme does not properly permit the § 14 (d) subpoena power to attach to a § 12 (b) “preliminary *520investigation” is also indicated by the history of § 12 (b). That subsection was not enacted until 1969, six years after the enactment of § 12 (a). See Chapter 153 of the Acts of 1969. It was intended to permit the Commission to initiate action when it received reliable information not cast in proper complaint form under § 12 (a), or information provided by persons other than those authorized to file complaints of discrimination under § 12 (a). Just as the Commission is not invested with subpoena power prior to the jurisdictional basis of the filing of an individual’s complaint under § 12 (a), neither does it have any subpoena power prior to the jurisdictional basis of the filing of the Commission’s own complaint under § 12 (b).

Support for this interpretation is further provided by the origin of the § 14 (d) subpoena power and its placement by the Legislature within the statutory scheme. Section 14 (d) was enacted into law in 1963, concurrently with § 12 (a) and § 13. See Chapter 228 of the Acts of 1963. At that time the subpoena power could only attach to a § 13 investigation (after a particularized individual complaint was filed), since § 12 (b) did not exist before 1969. That § 14 (d) continued after 1969 to apply only to § 13 investigations following the filing of a formal complaint is indicated by its continued placement within § 14, which is focused entirely on the hearing process, from preparation for a public hearing in § 14 (a) to Commission review of the hearing tribunal in § 14 (g). Thus, the word “proceeding” in § 14 (d) is clearly limited by its origin and placement to post-complaint “prompt investigations” under § 13, and does not extend to the “preliminary investigation” of § 12 (b).3

The majority’s contrary interpretation ascribes to the General Assembly an intent to create needless duplication of Commission investigations, and injects the subpoena power into an area where it was not intended to apply. I would, therefore, reverse the judgment of the lower court.

. The Swagger complaint, in its entirety, states: “The company hires and retains fewer minority group people than could be reasonably expected in the community which has approximately 1/t minority population. Women employees are retained in lower-paid and least responsible positions compared with male employees. Employees who are black or otherwise obviously members of racial minorities or of other national origin are in lesser-paid or less responsible positions compare [sic] with whites. The company has relatively very few supervisors who are women or racial minority members and the few they have supervise other women or minority members. The company indicates it will not change the practices in hiring and promotion which have led to these conditions. Prom personal knowledge, I feel the A. S. Abell Co. has discriminated in hiring & promotion, to the detriment of employees, based on sex, race or national origin. I represent members and people eligible for membership in the Washington-Balto. Newspaper Guild.”

. The Dickman complaint, in its entirety, stated: “I believe the A. S. Abell Co. has discriminated in the areas of race and sex involving hiring, promotion, transfer, on-the-job segregation. The general policies and practices of the company do not reflect the statements put forth in an affirmative action program published January, 1974. Although the company has said it would make efforts to change such practices that have continued for decades, no major improvements have occurred. The discriminatory practices are continuing. I am bringing these charges on behalf of the fair employment practices committee of the Baltimore-Washington Newspaper Guild as the chairperson of the committee and on personal knowledge of discrimination.”

. The Commission’s own Rules of Procedure recognize that the statute grants subpoena powers only in connection with an investigation after a §roper complaint has been filed, or with respect to a Commission hearing, ee Commission Rule XI, XIV.