Maryland Law Review Volume 37 | Issue 1 Article 5 Survey of Maryland Court of Appeals Decisions 1975-1976 Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Recommended Citation Survey of Maryland Court of Appeals Decisions 1975-1976, 37 Md. L. Rev. 61 (1977) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol37/iss1/5 This Recent Decisions is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Survey of Maryland Court of Appeals Decisions 1975-1976 I. ADMINISTRATIVE LAW 1. MARYLAND COMMISSION ON HUMAN RELATIONS - INVES- TIGATORY AND ENFORCEMENT POWERS - Banach v. State Commis- sion on Human Relations,' State Commission on Human Relations v. Amecom. 2 - Article 49B of the Maryland Annotated Code prohibits discrimination on the basis of race, color, religion, sex, national origin, marital status, or physical or mental handicap, and establishes the Commission on Human Relations, an administrative agency, to enforce the statutory anti-discrimination provisions. 3 The Commission has jurisdiction 4 over alleged discriminatory practices involving public accommodations, 6 7 employment,5 housing, and financing. When an individual believes that he is a victim of discrimination, he may file a complaint with the Commission.8 Moreover, the Commission. itself is authorized to file a complaint in its own name upon receipt of reliable information of a discriminatory practice, provided a preliminary investigation discloses that the filing of a complaint is warranted. 9 Once a complaint is filed, either by an individual or by the Commission, it is referred to the Commission's staff for a "prompt investigation."' 0 The Commission has the power to subpoena witnesses, books, papers, records, and documents relevant for proceedings designed to administer and enforce the anti-discrimination provisions of the statute." If the investigation reveals probable cause for believing that a discriminatory act has been committed, the Commission's staff must attempt to resolve it through "conference, conciliation and persuasion."' 2 In the event that no conciliation agreement can be reached, the respondent is served with notice to appear at a hearing to answer the charges in the complaint.' 3 If the Commission finds 4 at the hearing that the respondent has engaged in a discriminatory act,' the Commission shall issue an order requiring the respondent to cease and 1. 277 Md. 502, 356 A.2d 242 (1976). 2. 278 Md. 120, 360 A.2d 1 (1976). 3. MD. ANN. CODE art. 49B (1972, Cum. Supp. 1976). 4. See id. § 11 (1972). 5. See id. §§ 17, 18, 19, 20 (Cum. Supp. 1976). 6. See id. § 21 (Cum. Supp. 1976). 7. See id. § 23 (Cum. Supp. 1976). 8. Id. § 12(a) (Cum. Supp. 1976). 9. Id. § 12(b) (1972). 10. Id. § 13(a) (1972). 11. Id. § 14(d) (1972). 12. Id. § 13(b) (1972). 13. Id. § 14(a) (Cum. Supp. 1976). 14. Id. § 14(e) (1972). (61) MARYLAND LAW REVIEW [VOL. 37 desist from the discriminatory act and "to take such affirmative action as will effectuate the purposes of the particular subtitle [prohibiting that discrimination]. ' 5 Recent decisions of the Court of Appeals and legislative amendments to article 49B have resulted in a significant expansion of the powers of the Commission on Human Relations. In Banach v. State Commission on Human Relations16 the Court of Appeals considered whether the Commis- sion's subpoena powers extended to preliminary investigations. The Commission had attempted to obtain information regarding employment practices from the A.S. Abell Company, publisher of the Baltimore Sun newspapers, pursuant to section 12(b), which requires a preliminary investigation before the Commission may issue a colnplaint in its own name.17 After Banach, the personnel manager, refused to provide the Commission with the requested information, the Commission issued a subpoena duces tecum directing him to appear with the desired records. 18 When Banach failed to produce the records, the Commission obtained enforcement of the subpoena in the Circuit Court of Baltimore City. 19 The Court of Appeals granted certiorari prior to consideration of Banach's 2° appeal by the Court of Special Appeals. Banach contended that section 14(d) did not give the Commission the power to issue subpoenas in connection with a section 12(b) preliminary investigation, arguing, instead, that subpoena power attends only to the prompt investigation mandated by section 13 and to the section 14 hearing.21 In analyzing the language of the statute authorizing the Commission to issue subpoenas, the Court of Appeals found the use of the word "proceedings" in section 14(d) to be significant,22 noting that this term is one of broad scope which encompasses the investigatory as well as the adjudicatory process. 23 Reasoning also that the General Assembly would not 15. Id. If, on the other hand, it is determined that the respondent has not committed the alleged discriminatory act, the Commission shall issue an order dismissing the complaint. Id. § 14(f) (1972). The statute makes the filing of an unfounded and malicious complaint a misdemeanor. Id. § 15(b) (1972). 16. 277 Md. 502, 356 A.2d 242 (1976). 17. Section 12(b) provides: Whenever the Commission has received reliable information from any individual or individuals that any person has been engaged or is engaged in any discriminatory practice within the scope of this article, and after a preliminary investigation by the Commission's staff authorized by the chairman or vice-chairman it is satisfied that said information warrants the filing of a complaint, the Commission, on its own motion, and by action of not less than four commissioners, may issue a complaint in its name in the same manner as if the complaint has been filed by an individual. MD. ANN. CODE art. 49B, § 12(b) (1972). 18. 277 Md. at 505, 356 A.2d at 245. 19. Id. at 504, 356 A.2d at 244. 20. Id. 21. Id. at 506, 356 A.2d at 245-46. 22. Id. at 509, 356 A.2d at 247. 23. Id. at 509-10, 356 A.2d at 247; see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 3.01, at 159-60 (1958). 1977] ADMINISTRATIVE LAW require the Commission to conduct a preliminary investigation yet deny it the necessary tools with which to investigate,24 the court concluded, over the dissent of Chief Judge Murphy, 25 that the Commission has the power to issue subpoenas in connection with a section 12(b) preliminary investiga- 26 tion. A more significant problem is that of fashioning an appropriate remedy for the victim of discrimination. The Court of Appeals first considered the remedies provided by article 49B in the 1974 case of Gutwein v. Easton Publishing Co.27 Following discharge by Easton Publishing Co. from his employment as a newspaper reporter, Paul Gutwein, a white male, filed a complaint with the Human Relations Commission, alleging that his employment had been terminated because Easton had discovered that his fiancee was black. 28 After investigation and a hearing, the Commission concluded that Gutwein's allegation was true and determined that the discharge constituted a violation of article 49B, section 19(a), which makes discharge of an individual because of his race an unlawful employment practice. 29 On the basis of this determination, the Commission ordered Easton to pay the complainant compensatory damages for lost pay and 24. 277 Md. at 512, 356 A.2d at 249. 25. Chief Judge Murphy focused mainly on the structure of article 49B. Id. at 517-20, 356 A.2d at 251-54. Because § 13 requires the Commission to refer any complaint to the staff for an investigation, a complaint filed by the Commission itself after a § 12(b) investigation would undergo a second investigation, with each investigation being subject to subpoena powers. Chief Judge Murphy asserted that the majority's interpretation therefore results in a duplication of procedures, rendering the § 13 investigation "nugatory and duplicitous." Id. at 519, 356 A.2d at 253. But even with accompanying subpoena powers, there is no reason to expect that a § 12(b) preliminary investigation will be as extensive as a § 13 investigation. The second investigatory procedure would be duplicitous only to the extent that the Commission sought the same information. 26. 277 Md. at 512-13, 356 A.2d at 249. In Solely v. State Comm'n on Human Relations, 277 Md. 521, 356 A.2d 254 (1976), a companion case to Banach, the Court of Appeals held that the Commission clearly has the authority to issue subpoenas pursuant to a § 13 investigation. Id. at 525, 356 A.2d at 257. More recently, the Court of Appeals held that the Commission has authority to investigate discriminatory employment practices allegedly committed by public agencies of the state's political subdivisions. State Comm'n on Human Relations v. Mayor of Baltimore, 280 Md. 35, 371 A.2d 645 (1977). Additionally, the General Assembly has brought state agencies within the ambit of article 49B. See ch. 706,1977 Md. Laws. 27. 272 Md. 563, 325 A.2d 740 (1974), cert. denied, 420 U.S. 991 (1975). 28. Id. at 565, 325 A.2d at 741. 29. Section 19(a) provides: (a) It shall be an unlawful employment practice for an employer: (1) to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, age, national origin, marital status, or physical or mental handicap unrelated in nature so as to reasonably preclude the performance of the employment ...