SOUTHWESTERN BELL TEL. CO. v. MILLER

FOTH, C.J.:

The sole issue in this case is whether the grant of authority to prosecuting attorneys conducting inquisitions under K.S.A. 1977 Supp. 22-3101(2) to issue "subpoenas" includes the authority to issue subpoenas duces tecum. We hold that it does.

The action was precipitated by a subpoena issued by the district attorney of the eighteenth judicial district (Sedgwick county) in connection with an investigation of alleged violations of the narcotics laws. The subpoena commanded the security manager of the Southwestern Bell Telephone Company to appear before the district attorney and bring with him all records in possession of Bell showing telephone numbers charged with making calls to certain telephone numbers in Kansas for a specified three month period.

The response from Bell was this suit for a declaratory judgment, seeking to enjoin the enforcement of this subpoena and the issuance of any more like it. The trial court, reading the statute as authorizing a subpoena for a witness to testify but not a subpoena duces tecum, granted the injunction prayed for. The district attorney has appealed.

K.S.A. 1977 Supp. 22-3101, the "inquisition" statute, has three subsections. The first applies to the investigation of any crime, and provides for subpoenas to be issued by a judge upon application by a prosecutor. Subsection (3) deals with taking testimony and provides that refusal to testify may be adjudged contempt of court. Subsection (2), under which this subpoena was issued, authorizes subpoenas by the prosecutor, without the necessity of judicial action, in the investigation of certain specified crimes. It provides:

The case was submitted below on stipulated facts and the arguments of counsel. The trial court reached three conclusions of law:

On appeal the district attorney challenges the first conclusion. Bell relies solely on that conclusion; it filed no cross-appeal, and does not seek to support the judgment on any alternative ground or reasoning. Bell concedes it has the information sought. Hence we do not consider whether this particular subpoena was overbroad or oppressive, or whether it was issued in good faith for a legitimate law enforcement purpose. The parties are agreed that the judgment below must stand or fall on a pure question of statutory interpretation.

The parties devote a good deal of their briefs to the question of whether the civil code provisions for subpoenas are incorporated into the inquisition statute by virtue of references to them elsewhere in the code of criminal procedure. We do not find this discussion of much help in answering the question posed by this case, although we would probably agree with Bell that the inquisition statute stands on its own even though it is part of the code of criminal procedure. The trial court apparently relied on the inquisition statute alone, and gave a strict construction to its language permitting subpoenas for "persons" to appear and "testify." Bell argues that such a construction is warranted because, it says, the statute is penal in nature, and because subpoenas duces tecum are specifically authorized elsewhere in the statute book.

The first argument we view as fallacious; the power to investigate crimes and issue subpoenas has nothing penal about it. The statutes defining crimes are obviously penal, and are strictly construed because people are entitled to fair notice of what conduct may subject them to penalties. Here, a contempt of court penalty may be imposed for failure to comply with the subpoena, but not for violation of the statute. The subpoena itself may be strictly scrutinized to see if there has been willful disobedience justifying punishment, but we do not see that as a reason to strictly construe the authorizing statute. If we must categorize it, we would think it a remedial statute which should be liberally construed to effectuate its purpose.

The second argument, invoking the doctrine of expressio unius, has more substance but does not convince us. It is true that under K.S.A. 50-153 the attorney general, when conducting an inquisition in antitrust cases, is specifically authorized to issue subpoenas duces tecum. However, the grand jury statute (K.S.A. 1977 Supp. 22-3008), enacted at the same time as our present inquisition statute as part of the 1970 code of criminal procedure, also speaks only of process to bring "witnesses to testify," and makes no mention of the production of documents. Likewise, subsection (1) of K.S.A. 1977 Supp. 22-3101, dealing with judicially supervised inquisitions, also speaks only of subpoenas for "witnesses" to "appear and testify." Yet we would suppose no argument would be made that subpoenas issued under either statute could not command the production of documents. Indeed, the court below in its second conclusion of law specifically recognized the right of a judge to issue subpoenas duces tecum under 22-3101(1), despite the fact that its language is no broader than that of 22-3101(2).

The only justification for distinguishing between the subpoena powers under the grand jury and judicial inquisition statutes on the one hand, and the prosecutorial inquisition statute on the other, is to recognize and rely on the inherent right of courts to issue subpoenas — a right not possessed by prosecutors. While the authorities generally recognize that proposition, we doubt that the legislature chose its language with that in mind. It strikes us as more probable that in employing similar language in all three cases the legislature expected the power granted to be construed as being the same in all three.

As we see it, the real task in this, as in all statutory construction cases, is one of determining legislative intent. Expressio unius and all other "rules" of statutory construction are merely aids to assist in that chore, and are to be applied only where they are helpful in achieving that end. Commerce Trust Co. v. Paulen, 126 Kan. 777, 271 Pac. 388 (1928); Harkrader v. Whitman, 142 Kan. 186, 46 P.2d 1 (1935). In this case we are to determine simply whether the legislature intended a prosecutor who was conducting a criminal investigation to be able to compel the production of documents, or whether it meant to limit him to the interrogation of witnesses.

On this issue the district attorney makes an argument which we find compelling. There can be no doubt that the county prosecutors of this state, along with the attorney general, have a duty to investigate all criminal activity which comes to their attention, and that the inquisition statute is a primary tool entrusted to them by the legislature to assist in that function. State, ex rel., v. Rohleder, 208 Kan. 193, 490 P.2d 374 (1971); State v. Brecheisen, 117 Kan. 542, 232 Pac. 244 (1925). If information about criminal activity is in the hands of an individual, it can clearly be acquired by compelling that individual's testimony. If, as here, the information is in the hands of a corporation in the form of corporate records, the construction adopted below would mean it is beyond the reach of the official charged with the duty of investigating and prosecuting. We find it hard to believe the legislature intended the forces of law enforcement to go into the battle against crime with half their guns spiked.

As we read the cases cited by Bell, they stand for the proposition that agents of the executive branch (such as a county prosecutor or attorney general) have no subpoena power in the absence of express statutory authority. We have no quarrel with that general proposition. For example, in State ex rel. Woodahl v. District Court, 166 Mont. 31, 530 P.2d 780 (1975), the trial court had declined the attorney general's request to convene a grand jury because, inter alia, it found he had statutory subpoena power under which he could accomplish the desired investigation. On this issue the Montana Supreme Court construed the applicable subpoena statute as applying only to cases actually pending in court, and held that a grand jury should be convened. The scope of such subpoenas was not in issue. The same kind of reasoning led the Georgia court to deny the subpoena power in Williams v. Bolton, 227 Ga. 671, 182 S.E.2d 440 (1971). There the attorney general was authorized to investigate the "affairs of any department" of state government. This was held not to include an investigation of individual wrongdoing by a single state employee. Again, the scope of the subpoenas was not considered. In the same vein, Com. ex rel. Margiotti, Aplnt. v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951) holds that under the Pennsylvania Administrative Code the subpoena power was granted to administrative agencies (including the department of justice) only in connection with a hearing, and not a mere investigation.

Only one of Bell's cases bears directly on the question before us. In Donatelli Bldg. Co. v. Cranston Loan Co., 87 R.I. 293, 140 A.2d 705 (1958), a city council committee issued a subpoena duces tecum under a statute authorizing it to "issue subpoenas to witnesses to testify" in any matter pending before it. The court held that the statutory grant extended only to subpoenas ad testificandum, and not to subpoenas duces tecum. Further, it held that a court could not lend its own subpoena power to assist an agency not possessing it. Although our research has been limited, the case is the only one we find which takes such a restrictive view of the extent of the subpoena power, once it is determined that the power exists.

Bell's final case on this subject, In re McGowen, 303 A.2d 645 (Del. 1973), does nothing for its position and in fact cuts the other way. There the attorney general had issued a subpoena duces tecum directing a news photographer to turn over a photograph to a policeman. The court held the subpoena should have been quashed because it did not comply with the authorizing statute, in that it was not returnable at the attorney general's office and was not issued as part of an attorney general's investigation.

The statute in question authorized the attorney general to "subpoena witnesses and evidence." The court saw no substantial difference between this statute and its progenitor which had merely authorized process to "compel the attendance of witnesses." The court said:

The Hawkins case, quoted in McGowen, dealt with whether the power to issue "process" for "witnesses" included the power to compel the production of documents. As noted, the answer was yes, the court saying:

New Jersey takes the same view as to the identity of the two types of process. In Catty v. Brockelbank, 124 N.J.L. 360, 12 A.2d 128 (1940), the court considered a statute dealing with proceedings in aid of execution, authorizing "process of subpoena ad testificandum." The question was whether a subpoena under that statute could require the production of documents. Yet in the face of such apparently restrictive language the court held a subpoena duces tecum was authorized, observing:

Catty was quoted approvingly in In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954), in construing the subpoena provisions of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. The term there used was "summons," which was statutorily defined to include "a subpoena, order or other notice requiring the appearance of a witness." Relying on Catty and other cases of the same tenor, the court found a subpoena duces tecum was authorized, saying:

(Contra, In re Grothe, 59 Ill.App.2d 1, 208 N.E.2d 581 [1965].)

Finally, among foreign cases, we are impressed by State ex rel. Pollard v. Marion Crim. Ct. et al., 263 Ind. 236, 329 N.E.2d 573 (1975). The issue there was whether the Indiana statutes governing grand juries authorized subpoenas duces tecum or only subpoenas ad testificandum. The statutes used the term "subpoena" without qualification, and spoke of requiring witnesses "to appear and testify." The Indiana Supreme Court did not rely on the inherent power of courts to issue subpoenas, but looked at the problem as one of statutory interpretation in which it was required to meet the same kind of "expressio unius" argument made here.

In doing so it discussed at length the investigative role of the grand jury throughout the history of this country, noting that "[i]t has long been recognized that a primary function of the grand jury is to conduct investigations which have been pejoratively called inquisitions." (Id. at 245.) The court concluded that the function was still a vital one, and recognized as such by the legislature when it charged the grand jury with its ongoing duty:

The analysis, it will be seen, is the same as ours in this case.

In practice in this state grand jury investigations are relatively rare, while prosecutorial investigations are relatively frequent. We ordinarily commence our prosecutions by complaint and preliminary hearing rather than by indictment. We think it may be fairly said that the inquisition statutes we deal with here have largely replaced the grand jury investigation as a working tool of law enforcement, and that fact was surely known to the legislature when it enacted the 1970 code of criminal procedure. If we are to give a common-sense construction to the statute we must hold that the power to subpoena a witness to testify encompasses the power to compel the production of unprivileged documents in the possession of the witness.

Bell makes some argument that the conclusion we reach would be unconstitutional. United States v. Miller, 425 U.S. 435, 48 L.Ed.2d 71, 96 S.Ct. 1619 (1976), cited by Bell, establishes that bank customers have no Fourth Amendment interest in their bank records, so that such records could be lawfully obtained by a grand jury through subpoenas duces tecum addressed to a bank. We would suppose this disposes of any claim which might be made by Bell's customers. More recently, in Zurcher v. Stanford Daily, 436 U.S. 547, 56 L.Ed.2d 525, 98 S.Ct. 1970 (1978), it was held that documentary information about suspected criminal activity could be obtained from an innocent third party — even a newspaper — by means of a search warrant. The Court there rejected the argument (accepted by the courts below) that the prosecutor should have first proceeded in a less drastic fashion, by way of a subpoena duces tecum. That case would appear to dispose of Bell's interests, which surely do not rise to the level of the First Amendment rights of a newspaper. And cf. United States v. New York Telephone Co., 434 U.S. 159, 54 L.Ed.2d 376, 98 S.Ct. 364 (1977).

Bell also points to the possibility of abuse if the prosecutor's discretion is unfettered. The short answer is that there is no claim of abuse in this case. Beyond that, the courts are always open to prevent abuse in suits such as this one, if the need arises. In the meantime, we indulge in the customary presumption that public officers will act in good faith.

The judgment is reversed and the case is remanded with directions to dissolve the injunction and render a declaratory judgment in favor of the district attorney.