State ex rel. American Legion Post 25 v. Ohio Civil Rights Commission

117 Ohio St. 3d 441
CourtOhio Supreme Court
DecidedMarch 26, 2008
DocketNo. 2006-2263
StatusPublished
Cited by8 cases

This text of 117 Ohio St. 3d 441 (State ex rel. American Legion Post 25 v. Ohio Civil Rights Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. American Legion Post 25 v. Ohio Civil Rights Commission, 117 Ohio St. 3d 441 (Ohio 2008).

Opinion

Lanzingek, J.

{¶ 1} This discretionary appeal presents the question of whether R.C. 4112.04(B), the Ohio Civil Rights Commission’s subpoena statute, creates a duty for the commission to issue subpoenas at the request of a party charged with a discriminatory practice at any stage of its administrative proceedings. We hold that the clear language of the statute mandates the commission to issue subpoenas at the party’s request.

I. Case Background

{¶ 2} Carol Van Slyke filed a complaint with the Ohio Civil Rights Commission against her former employer, the American Legion Post 25 (“the Legion”), claiming that its executive director had sexually harassed her. Van Slyke alleged that she was fired in retaliation for complaining about the harassment.

{¶ 3} When contacted by the commission, the Legion explained that it had fired Van Slyke shortly after receiving an anonymous letter that she was a felony offender.

{¶ 4} During the investigation, the Legion requested, by letter from its attorney, that a subpoena be issued on its behalf compelling Van Slyke’s parole officer to meet with its representatives. In addition, the Legion requested that the parole officer provide all documents pertaining to Carol Van Slyke’s sentence in Arizona, the transfer of her case to Ohio, and all documents pertaining to her parole or probation along with the dates and length of her supervision.

{¶ 5} The commission did not issue the subpoena as requested. The commission did, however, during the investigatory phase, issue a subpoena on its own behalf to the parole officer, who provided the commission with requested information. The Legion was not permitted to review that information. The commission issued a determination that it was probable that the Legion had engaged in an unlawful discriminatory practice under R.C. 4112.02 and scheduled the case for conciliation. Ultimately, after attempts at conciliation failed, the commission issued a complaint against the Legion.

{¶ 6} When the commission did not issue the requested subpoena, the Legion filed a complaint in the Fayette County Court of Common Pleas that sought a writ of mandamus to compel the commission to issue the requested subpoena to [443]*443the parole officer. The commission filed a motion to dismiss the complaint, arguing that the Legion had no clear legal right to the subpoena, the commission had no clear legal duty to issue the subpoena, and the Legion had an adequate remedy at law. The trial court granted the motion to dismiss and denied the writ.

{¶ 7} On appeal, the Twelfth District Court of Appeals reversed and held that the Legion was entitled to a writ of mandamus. The appellate court stated that the commission’s argument that it had the right to issue a subpoena on its own behalf during an investigation, but not on the behalf of the party who had been charged with a discriminatory practice, ran counter to the plain language of R.C. 4112.04(B)(3)(b): “Upon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.” Furthermore, the court held that by refusing to issue the subpoena requested by the Legion, the commission failed to engage in a “completed attempt” to eliminate the discriminatory practice by conference, conciliation, or persuasion before it issued a complaint and thus lost jurisdiction to issue the complaint against the Legion.

{¶ 8} We accepted this discretionary appeal on the commission’s two propositions of law. The first deals with the interplay between the statute, R.C. 4112.04(B), and the administrative rules, Ohio Adm.Code 4112-3-12(A) and 4112-3-13(B), that authorize the commission to issue subpoenas. The commission asserts that the two are complementary and that it is authorized to issue a subpoena on the behalf of a party before it only after a formal complaint has been issued. The second proposition of law suggests that the commission properly engaged in conciliation and thereby retained jurisdiction over Van Slyke’s claim of discriminatory conduct even though it did not issue the subpoena requested by the Legion.

II. Analysis

{¶ 9} Before we discuss the merits of the commission’s claims, it is important to review the steps involved when the commission receives a claim of discriminatory treatment. The process has three steps. Upon receipt of a complaint alleging discriminatory conduct, such as harassment, the commission is authorized to investigate the allegations. R.C. 4112.05(B)(2). In the first step, the preliminary investigation, the commission’s function is to discover evidence to determine if it is probable that an unlawful discriminatory practice has occurred. Id. If the commission finds that it is probable that a discriminatory practice has occurred, then the second phase begins. R.C. 4112.05(B)(4). During this phase, the commission must try to eliminate the discriminatory practice through “informal methods of conference, conciliation, and persuasion.” R.C. 4112.05(B)(4). Both the preliminary investigation and attempts at conciliation must be complet[444]*444ed within a specified time frame. R.C. 4112.05(B)(3)(a) and 4112.05(B)(7). If attempts at conciliation fail, a formal complaint is entered, with notice of the allegations and an opportunity for a hearing for the party charged with the civil-rights violation. R.C. 4112.05(B)(5). During this third and final phase, the attorney general represents the commission and prosecutes the charge of discrimination. R.C. 4112.05(B)(5) through (7).

A. The Right to Mandamus

{¶ 10} We are asked to decide whether the commission is entitled to deny a respondent’s written request for a subpoena when the request is made during the preliminary investigation. If the commission may deny such a request, the Legion was not entitled to a writ of mandamus compelling the issuance of a subpoena on its behalf during the preliminary investigation.

{¶ 11} A writ of mandamus is “a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty.” R.C. 2731.01. For a writ of mandamus to issue, the relator must demonstrate “ ‘(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.’ ” State ex rel. Westbrook v. Ohio Civ. Rights Comm. (1985), 17 Ohio St.3d 215, 215, 17 OBR 449, 478 N.E.2d 799, quoting State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42, 8 O.O.3d 36, 374 N.E.2d 641.

{¶ 12} The Legion argues that R.C. 4112.04(B)(3)(b) confers on it a clear legal right to request that the commission issue a subpoena during the preliminary investigation. R.C. 4112.04(B)(3)(b) provides that “[u]pon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.” The Legion contends that the subpoena must be issued because the plain language of the statute places the commission and a party before it on equal footing when it comes to subpoena power.

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Cite This Page — Counsel Stack

Bluebook (online)
117 Ohio St. 3d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-american-legion-post-25-v-ohio-civil-rights-commission-ohio-2008.