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50-153. Attorney general powers and duties; enforcement of act. (a) Whenever the attorney general has reason to believe that any provision of this act has been violated or that any announced conduct of two or more business entities, announced by an authorized agent of one such business entity in which the combined annual gross sales of such business entities involved exceed $500,000,000, will substantially lessen competition or tend to create a monopoly in violation of this act, the attorney general, or any deputy attorney general or assistant attorney general, may:

(1) Administer oaths and affirmations;

(2) subpoena witnesses or matter, propound written questions to be answered under oath;

(3) take testimony under oath;

(4) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violations; and

(5) collect evidence.

(b) The attorney general may designate representatives, including officials of the state in which the matter is located, to inspect the matter on the attorney general's behalf, and the attorney general may respond to similar requests from officials of other states.

(c) Service by the attorney general of any subpoena shall be made by:

(1) The mailing thereof by certified mail to the last known place of business, residence or abode within or without this state; or

(2) in the manner provided in the code of civil procedure as if a petition has been filed.

(d) The attorney general may request that an individual who refuses to comply with a subpoena, on the ground that testimony or matter may incriminate the individual, be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter after asserting a privilege against self-incrimination to which the individual is entitled by law, may not be subjected to a criminal proceeding or to a civil penalty to the transaction concerning which the individual is required to testify or produce relevant matter.

(e) If any person willfully fails or refuses to obey any subpoena issued by the attorney general pursuant to this act, the attorney general, after notice, may apply to the district court, and, after a hearing thereon, the district court may issue an order:

(1) Granting injunctive relief restraining the sale or advertisement of any merchandise or services by such persons;

(2) vacating, annulling or suspending the corporate charter of a corporation created by or under the laws of this state or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to the person which are used to further the allegedly unlawful practice; or

(3) granting such other relief as may be required, until the person obeys the subpoena.

History: L. 1919, ch. 316, § 1; R.S. 1923, 50-153; L. 1973, ch. 134, § 45; L. 2000, ch. 136, § 22; July 1.

Cross References to Related Sections:

Inquisition in criminal cases, see chapter 22, article 31.

Law Review and Bar Journal References:

Antitrust investigatory powers discussed, Kenton C. Granger, 8 W.L.J. 1, 8 (1968).

"Antitrust-Inquisitions—Right to Counsel," Timothy E. McKee, 9 W.L.J. 146 (1969).

CASE ANNOTATIONS

1. Procedure does not violate the bill of rights; documents should be returned to witnesses producing them; documents are not instruments used in violating antimonopoly laws. The State v. Smithmeyer, 110 Kan. 172, 202 P. 638.

2. Nature of documents which may be retained by attorney general discussed. Smithmeyer v. Hopkins, 111 Kan. 329, 207 P. 655.

3. Corporation could not raise question of denial of counsel to employee testifying at inquisition; corporation had no constitutional right to counsel at inquisition where employee questioned. State, ex rel., v. American Oil Co., 202 Kan. 185, 189, 446 P.2d 754.

4. Comparison between fact finding investigations and inquisition procedures in opinion referred to (dissenting opinion). Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 926, 529 P.2d 666.

5. Referred to in holding prosecuting attorney conducting inquisition under K.S.A. 22-3101(2) authorized to issue subpoenas duces tecum. Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 560, 583 P.2d 1042.


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