TN: Administrative subpoena statute requires judicial enforcement, and that provides due process

The state unemployment office subpoenaed records from the plaintiff and it sued in state court under § 1983. The subpoena power is not unlimited and it is construed to comply with due process. Plaintiff refuses to comply, and the agency has to seek judicial enforcement. Plaintiff can then assert its defenses to complying or unreasonableness. Blue Sky Painting Co. v. Phillips, 2016 Tenn. App. LEXIS 499 (July 15, 2016):

Under the statutory scheme at issue in this case, if the subpoenaed party believes that the subpoena is unreasonable, the party can refuse to comply without penalty; in order to enforce the subpoena, the commissioner must then apply to a court of competent jurisdiction and secure an order to produce the records. The imposition of any penalties for not producing the records is considered only after an order has been issued and the party does not comply. Thus, there is a judicial determination of the reasonableness and legality of the request and an opportunity to comply prior to the imposition of any sanction for failure to produce the records. The commissioner does not impose any penalties, and it is the failure to comply with the court’s order, not the failure to comply with the subpoena, which produces the penalties. This procedure is not unconstitutionally coercive and therefore satisfies the Fourth Amendment and the requirements of State ex rel Shriver v. Leech; Tenn. Code Ann. §§ 50-7-703 and -712 are not unconstitutional.

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