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Housing commission can subpoena records in bias case

Virginia Lawyers Weekly//December 4, 2020

Housing commission can subpoena records in bias case

Virginia Lawyers Weekly//December 4, 2020

Where respondent Fairfax Human Rights Commission issued a subpoena duces tecum for petitioner Capital Investment Advisors relating to racial discrimination in an apartment complex, the court, on the commission’s motion to reconsider, now concludes that the commission has subpoena power when investigating housing discrimination claims.

Respondent’s motion to compel is granted in part. The subpoena is “overbroad.”

Parties’ positions

“Petitioner argues the HRC has no authority to issue a Subpoena Duces Tecum while investigating this complaint of housing discrimination. Petitioner relies on Va. Code Ann. § 15.2-853(4), which states, in relevant part, a ‘[human rights] commission shall have no power itself to issue subpoenas.’ In response, the HRC argues that the Fairfax County Fair Housing Ordinance, enacted pursuant to Va. Code Ann. § 36-96.21, is an express grant of power to the HRC to issue subpoenas when investigating complaints of housing discrimination.”

Statutory authority

“Fairfax County enacted its Fair Housing Ordinance as part of a broader ‘Human Rights Ordinance’ in 1974. Fairfax County’s Human Rights Ordinance has always empowered the Human Rights Commission to issue subpoenas for production of documents or for testimony from witnesses. 

“Fairfax County’s Human Rights Ordinance, with such subpoena power, was in place on January 1, 1991 — the base requirement for Va. Code Ann. § 36-96.21 to be relevant to this Court’s inquiry. Furthermore, it bears noting that, as long as Fairfax County has had a Fair Housing Ordinance, the language of that ordinance has nearly verbatim matched the General Assembly’s language in the Virginia Fair Housing Act found in Va. Code Ann. § 36-96.1 et seq. 

“The Virginia Fair Housing Act provides that the relevant investigating authority (namely, the Virginia Fair Housing Board) has subpoena power while investigating complaints of discrimination. The conflict between Va. Code Ann. § 36-96.21 and Va. Code Ann. § 15.2-853 becomes apparent when looking to Va. Code Ann. § 36-96.21’s reference to a ‘substantial equivalency’ determination from the Department of Housing and Urban Development (‘HUD’). 

“When the General Assembly enacted Va. Code Ann. § 36-96.21 in 1991, one of the requirements for a partner agency to be considered ‘substantially equivalent’ under the Civil Rights Act was that the partner agency ‘must have authority to … issue subpoenas.’ … 24 C.F.R. § 115.3 (1990). A court must ‘harmonize apparently conflicting statutes to give effect to both.’ … In doing so, the Court’s primary objective is to ‘ascertain and give effect to the intention of the legislature, [and] that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity.’ …

“‘Where two statutes are in apparent conflict they should be construed, if reasonably possible, so as to allow both to stand and to give force and effect to each.’ … Moreover, when the General Assembly adopts a statute with substantially similar language as exists in another jurisdictions, there is a presumption that the General Assembly is aware of any construction placed on that language in the other jurisdictions, and that the General Assembly intends the Virginia law to receive similar construction. …

“When the General Assembly invokes or refers to the Civil Rights Act and a substantial equivalency determination from HUD, the General Assembly intends that localities actually have the ability to obtain substantial equivalency status from HUD. A manifest absurdity results if this Court accepts Petitioner’s interpretation. If there can never be subpoena power for the HRC, then the General Assembly’s instructions and guidance regarding submitting ordinances to HUD for substantial equivalency determinations become utterly meaningless.”


“For the above reasons, this Court grants Respondent’s Motion to Reconsider, and vacates the October 16, 2020 order. The Court denies Petitioner’s Petition to Quash the Subpoena Duces Tecum, and grants in part and denies in part Respondent’s Cross-Petition to Compel Responses to the Subpoena Duces Tecum.”

Capital Investment Advisors v. Fairfax Human Rights Comm’n, Case No. CL-2020-6566, Nov. 24, 2020, Fairfax County Cir. Ct. (Kassabian). Ryan Probasco for petitioner Capital Investment Advisors, Patrick Foltz for respondent Fairfax Human Rights Comm’n. VLW 020-8-135, 6 pp.

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