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2006-2263. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., Slip Opinion No. 2008-Ohio-1261.
Fayette App. No. CA2006-01-006, 171 Ohio App.3d 476, 2006-Ohio-5509. Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1261.pdf
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(March 26, 2008) The Supreme Court of Ohio ruled today that the Ohio Civil Rights Commission (OCRC) has a “clear legal duty” to issue a subpoena at the request of a respondent (a party accused of unlawful discrimination) at any stage of a commission proceeding, including during the preliminary investigation of a complaint. In a 7-0 decision written by Justice Judith Ann Lanzinger, the Court held that an administrative rule adopted by the commission restricting the issuance of subpoenas on behalf of a respondent until after conciliation attempts have failed and a formal complaint has been filed is invalid because it conflicts with a provision of state law.
The case involved a former employee of American Legion Post 25 in Washington Courthouse, Carol Van Slyke, who filed a complaint with the OCRC alleging that the executive director of the post had sexually harassed her and, when she complained about the harassment, had fired her in retaliation. When contacted by the OCRC, the Legion asserted that it fired Van Slyke after receiving an anonymous letter identifying her as a former felony offender.
Before a probable cause determination had been made in the case, the Legion’s attorney sent a letter to the OCRC requesting that it issue a subpoena on the Legion’s behalf compelling Van Slyke’s parole officer to meet with a Legion representative and produce various documents related to Van Slyke’s prior criminal case. The commission refused, citing its administrative rule, Adm.Code 4112-3-13(B), that authorized the issuance of a subpoena on behalf of a respondent only after probable cause of a violation had been found, conciliation efforts had failed, and a formal complaint had therefore been filed against the respondent. The commission later issued a subpoena to the parole officer on its own behalf and interviewed him. The Legion’s attorney asked to review the information the parole officer had provided to the commission, but OCRC denied that request.
The legion’s attorneys filed suit in the Fayette County Court of Common Pleas seeking a writ of mandamus to compel OCRC to issue a subpoena on the legion’s behalf compelling the parole officer to meet with them, answer their interrogatories and provide them with copies of certain documents. The trial court denied the writ. The commission subsequently found probable cause that the legion had engaged in discriminatory conduct and attempted unsuccessfully to negotiate an agreement between the parties to remedy that conduct. An administrative complaint was then filed against the legion.
The legion’s attorneys appealed the trial court’s denial of the requested writ, and asked the 12th District Court of Appeals to invalidate the commission’s complaint. They argued that the legion had been unlawfully denied a subpoena that would have allowed it to interview Van Slyke’s probation officer and obtain information from relevant documents during the preliminary investigation stage, and that this information could have changed the outcome of the probable cause or conciliation stages of the case. The court of appeals reversed the trial court and issued a writ requiring the commission to issue the subpoena requested by the legion. In its decision, the 12th District noted that a provision of state law, R.C. 4112.04(B)(3)(b), requires the OCRC to issue subpoenas requested by a respondent “to the same extent and subject to the same limitations as subpoenas issued by the commission.” It also held that the commission’s failure to issue the requested subpoena had prevented a “completed attempt” to eliminate the discriminatory practice through conciliation before a formal complaint was initiated.
The OCRC sought and was granted Supreme Court review of the 12th District’s decision. Writing for a unanimous Court in today’s decision, Justice Lanzinger affirmed the rulings of the court of appeals, holding that the plain language of R.C. 4112.04(B) mandates that the commission issue subpoenas requested by respondents under the same conditions that it issues subpoenas on its own behalf, and that the statute therefore invalidates the commission’s administrative rule imposing two different standards.
“The commission is authorized to adopt rules to implement the provisions of R.C. Chapter 4112. However, an administrative rule may not add to or subtract from a legislative enactment. ... If it does, the rule clearly conflicts with the statute, and the rule is invalid,” wrote Justice Lanzinger.
“In this case, the administrative rule adds to the legislative enactment by requiring a party before the commission to wait for the complaint phase of the proceedings before it can request that a subpoena be issued. The rule’s limitation on the timing of requesting a subpoena, which makes a party before the commission wait until an investigation has ended, conciliation has stalled, and a formal complaint has been issued, is the extra step that conflicts with the statute, which expressly allows for subpoenas to be issued on behalf of a party before the commission ‘to the same extent and subject to the same limitations’as those issued on behalf of the commission. The rule improperly adds to the statute, thus creating a clear conflict, and must fail. The Legion thus had a clear legal right to request that the commission issue a subpoena during the preliminary investigation.”
Contacts
William P. Marshall, 614.466.8980, for the Ohio Civil Rights Commission and Ohio Attorney General’s office.
James A. Kiger, 740.335.5271, for American Legion Post 25.