HomeMy WebLinkAbout02 13 2012 Open Minds Closed Records Meaningful Hearings documentOpen Minds,
Closed Records &
Meaningful Hearings
.ow 'Yudicial " must a quasi-judicial action be
john M. Baker
Greene Espel P.L.L.P.
200 S. Sixth Street, Suite 1200
Minneapolis, N4N 55402
(612) 373-0830
JBaker@greeneespel.com
2011 Minnesota City Attorneys
Educational Conference
Feb. 11, 2011
Bloomington, Minnesota
Table of Contents
Background: Procedures 'or land use decisions in Minnesota .... � ...�... ■ r . �
II. The source of'the problem: divergent approaches between
the U.S. Supreme Court and other (usually state) courts) ... . . . ............... 4
IIS■ The Key Minnesota case: Continental Pro ty Group, Inc,
v. City o M nne o sr (awaiting argument before the Court
of Appeals on February17, 2011 •+• # rt ■ a rt a • • • ■ ■ # # f # r ■ ■ i ■ rt w ■ r • • ■ • • r r i ■ ■ i ■ rt • ■ ■ ■ ■ ■ # r •
7
IV. The domino -effect of reclassifying a kind of rezoning from
Legislative to quasi-judicial: Albuquerque Commons PShip
v. City Council {N.M. 2008} and (N.M. Ct. App. 2409) .............. . . . . . . . 10
V. When a decision maker has held peacemaking and adjudicative
Roles in the same controversy: Armstrong . urner Co. Board
ofAdjustment(S.D. Aug. 26, 2009)
Attachments
The Iowa City Approach-, Feb. 28, 2007 Memo to the
City Council of Iowa City fi-om City Attorney Eleanor Dilkes on
"Rezonings, Due Process and Ex Pare Communication"
Liability ruling of the Hon. Stephen Aldrich in
Continental Property Group Inc. v. City of Minneapolis
(Henn. Co. Dist. Ct. Sept. 1.6, 2009)
Amicus brief of the American Planning Association in
Continental Property Group Inc. v. City of Minneapolis
Amicus Brief of the League of Minnesota Cities in
Continental Property Group Inc. v. City of Minneapolis
ii
I. Background: Procedures for land use decisions in Minnesota
A. Quasi-judicial hearings need not be trials:
1. The Minnesota Supreme Court has held that quasi-judicial
proceedings on land -use applications "do not invoke the full
panoply of procedures required in regular judicial proceedings,
civil or criminal, many of which would be plainly inappropriate
� in these quasi-judicial settings," Barton Contracting v. City of
Afton., 268 N,W,2d 712,716 {Minn. J.978}.
B. However, both state law, and constitutional law, can impose
certain procedural requirements:
1. Public hearings are mandated by the Municipal Planning Act
for most major types of land -use' actions, whether legislative or
quasi-judicial:
a. See Minn. Stat. § 462.355 subd. 2 (public hearing
required on the adoption of a comprehensive pian)
b. § 4b2.357 subd. 3 (public hearing requited on the
adoption of a zoning ordinance or amendment)
C, § 462.358 subd. 3b (unless otherwise provided by law or
charter, a public hearing is required on all subdivision
applications, where "all persons interested shall be given
an opportunity to make presentations")
d. § 462.3595 subd. 2 (public hearing required on the
granting of CUPS)
e. § 462,3597 subd. 3 (public hearing required on the
granting of interim use permits)
f. § 462.354 (subd. 2) (hearings before a board of appals
and adjustments, vested by § 462.357 subd. 6 with the
power to hear appeals and requests for variances)
I
2, The Municipal Planning Act has been interpreted to require
certain types of procedures, at least ii on -the -record review is to
occur.
a. "The municipal body ... mush, at a minimum, have the
reasons for its decision recorded or reduced to writing
and in more than just a conclusory fashion. By failing
to do so, it runs the risk of not having its decision
sustained." Honn v. City of Coon Rapids, 313 N.W.2d
409 (Minn. 1981).
{i) An approval, however, can survive judicial review
even if not accompanied by findings, because a
court may infer from the act of approval that "the
-decision-making body has implicitly determined
that all requirements for the issuance of the permit
have been met. Therefore, express written findings
are unnecessary." Haen v. Renville County Bd. of
Commis, 49S N.W.2d 466, 471 (Minn. App.
1993).
3, Indirectly, Minnesota's automatic approval statute imposes a
requirement of written reasons (applicable to denials of written
requests related to zoning):
a. § 15.99 subd. 2 ("If an agency denies the request, it must
state in writing the reasons for the denial at the time that
it denies the request."}; subd. 2(c) {"Except as provided
in paragraph (b), if an agency, other than a multimember
governing body, denies the request, it must state in
writing the reasons for the denial at the time that it denies
the request. If a multimember governing body denies a
request, it must state the reasons for denial on the record
and provide, the applicant in writing a statement of the
reasons for the denial. If the written statement is not
adopted at the same time as the denial, it must be adopted
at the next meeting following the denial of the request
but before the expiration of the time allowed for making
a decision under this section. The written statement must
be consistent with the reasons stated in the record at the
2
time of the denial. The written statement must be
provided to the applicant upon adoption."}
4. As a matter of constitutional due process, if the decision will
result in the deprivation of liberty or property,, then some level
of "process" is constitutionally due.
a. That will rarely, if ever. be the case when the decision is
"legislative," such as —
(i) a decision on adoption or amendment of a
comprehensive guide plan (Mendota Go6rv. City of
Mendota Heights, 708 N, W.2d 162, 179 (Minn.
2006)); and
(ii) A decision on adoption or amendment of a zoning
ordinance (State, by Rochester Assn of
Neighborhoods v, City of Rochester., 268 N.W.2d
885, 888 {Minn. I978}; Honn, 313 N.W.2d at 416).
b. But with "quasi-judicial" decisions, however, "/t/he
basic rights of procedural due process required in that
case are reasonable notice of hearing and a reasonable
opportunity to be heard." Barton Contracting, 268
N.W.2d at 716.
{i) In Minnesota, quasi-judicial actions include
decisions on variances (Krummenacher v. City of
Minnetonka, 768 N.W.2d 377 (Minn. 2010),
conditional use permits . (Trisko v. City of Waite
Park, 566 N,W,2d 349 (Minn, Ct, App. 1997), and
(in an unfortunately unpublished opinion) a
decision on a planned unit development (Prior
Lake Oaks v. City of Prior Lake, 1998 WL 51590
(Minn. Ct. App. Feb. 10, 1998)).
3
��. The source of the problem: divergent approaches between the U.S.
Supreme Court and other (usually state) courts
A.the V.S. Supreme Court -- balancing tests, not bright lines:
� Since the U.S. Supreme Court adopted a three-part balancing test for
what process is "due" as a matter of constitutional taw in Mathews v.
Eldridge, 424 U.S. 3i9 (1976), the Supreme Court has avoided
making categorically statements of what types of procedures are
sufficient to provide that "reasonable opportunity to be heard."
1. As past of the application of the balancing test, the Supreme
Court has stopped far short of holding that procedural due
process entitles applicants to "blank slate" decision. makers.
a. Forexample, in Hortonville Jt. Sch. Dist. No. 1 v.
Hor�tanville Educ. Ass'n. 426 U.S. 482 (1976), the
Supreme Court recognized that "mere familiarity with the
facts gained by an agency in the performance of its
statutory role," and "taking a position, even in public, on
a policy issue related to the dispute," do not
constitutionally require disqualification absent a showing
that the decisionmaker "is not capable of judging a
particular controversy fairly on the basis of its own
circumstances." 1`d. at 492-93.
2, Even when considering what procedural due process requires of
judges, where presumably the constitutional requirements are at
their high -wafer point, the U.S. Supreme Couit has stopped
short of stating that a judge cannot preside if he or he has a
predisposition regarding particular issues in the case before him
or her:
a. - Where a judge has a direct, personal, substantial, and
pecuniary interest in a case, it certainly violates
procedural due process for that judge to preside over that
matter. Tumey v. Ohio, 273 U.S. 510 (1927).
b. However, that a judge has no predisposition regarding
particular legal issues in a case before her "has never
been thought a necessary component of equal justice [in
.part because] it is virtually impossible to find a judge
who does not have preconceptions about the law."
Republican Party of Minnesota v. White, 536 U.S. 765
(2002).
c, As the Supreme Court seemed to demonstrate two terms
ago in Capterton v. A.T. Massey Coal Co., 129 S. Ct.
2252 (2009), the type of Was sufficient to constitutionally
require a judge's recusal must either be
financialinterest ire the case's o tcomee
(ii) the commingling of roles in a criminal contenpt
proceeding arising when the decision maker has
charged the defendants with contempt of the same
decision maker's ruling; and
(to a majority of five justices) when a third party
with a personal stake in the case's outcome has
had a significant and disproportionate influence in
placing the judge on the case. Id. at 2254-55.
B. By contrast, many lower courts (usually state courts) make
sweeping generalizations regarding "fairness," that go well
beyond anything the U.S. Supreme Court has actually held is
constitutionally required by procedural due process:
1. "In such quasi-judicial proceedings, it is incumbent upon the
authority to comply with the requirements of due process in its
proceedings. Thus, the proceedings must be fair, open, and
impat`tral." McPherson Landfill Inc. v. Bd. of Shawnee County
Commis, 49 P.3d 522 (Kan. 2002).
2. Indiana statutes and case law "require that Indiana boards of
zoning appeals ("BZAs") comply with the requirements of due
process. Although BZAs are not held to technical legal
requirements, they must comply with the constitutional
standards of being
fundamentally fair."
Institute of Indiana,
2003),
5
orderly, impnYtial, judicious, and
Hobart Common Council v. Behavioral
'SS N.E.2d 2385 246-47 {Ind. Ct. App.
a. In that case the court found that the City violated the
applicant's "due process rights" because a city engineer's
"proposed findings" went beyond his "brief statement [at
the public hearing] explaining that he believed the land
use variance did not meet Three out of the five" variance
criteria, because the applicant "was unable to respond to
these specific factual allegations" embodied in the
proposed findings. Id. at 252.
3. "Administrative tribunals must be unbiased and must avoid
even the appearance of bias to be in accordance with the
principles of due process." Thornbury Twp. Bd. of Supervisors
v. W.D.D. Inc., S46 A.2d 744 (Pa. Commw. 1988).
G In land -use law treatises, lover court decisions, rather than the
U.S. Supreme Court's general analysis, receive greatest emphasis
1, The survey of land use law in treatises (such as Rathkopfs TIIE
LAW OF ZONING AND PLANNING, §32.13 and 32.14 (4th ed.
2009)), tends to emphasize the most specific — and in many
cases, the most extreme — statements of what "due process
requires," while giving little attention to doctrinal differences
between the way that those courts arrived at those conclusions
about what "due process requires," and the way that the U.S.
Supreme Count's decisions require such decisions to be made.
2. As a result, treatises tend to overstate what the U.S. Supreme
Court is likely to hold is constitutionally required.
0
xII. The key Minnesota case: Continental Properly Group Inc. v. Cit
y of
Minneapolis, (awaiting argument before the Court of Appeals on
February 17, 201.1)
A. Background facts:
1. A developer wanted to build ahigh-rise tower in the low-rise
Loring Park neighborhood {where the zoning placed a 2 Y2story
limit)
2. He requested —
a. CUPS, to exceed the high limit and to allow for 104 units;
and
b. variances, to cut the side setbacks fi-om 48 feet t0 16 and
4 feet, and the rear -yard setback from 45 feet to 19 and 8
feet
3. He approached Council member Lisa Goodman and tried,
unsuccessfully, to persuade her in advance to support the
project, but received the opposite answer from her.
4. Staff recommended "no."
5. Planning Commission did loo.
b. A five -member subcommittee of the Council (including Lisa
Goodman) voted no, 5-0.
7, The full City Council voted no, 1.3-0.
8. Plaintiff then purchased the property, and sued the City.
B. Permit/variance denials were upheld, but the decision was deemed
unconstitutional by Judge Stephen Aldrich (recently retired):
1. $23.6 million in damages were sought by the plaintiff after an
adjudication of unconstitutionality.
2. $165,369.88 awarded, plus $357,523.45 in Section 1988
attorneys' fees.
7
C. Judge Aldrich's liability analysis:
1, As part of its state -law judicial review, he concluded:
a. It was reasonable for the Council to find that --
(i) it would block some views of the historic
landscape and structures on Loring Hill and views
of and from Loring Hill and Pond; and
(ii} "The proposed 21 -story glass facade slender tower
is not consistent with the scale and character of the
neighborhood" of low-rise residential and office
buildings.
2. The City lost on an unpleaded procedural due process claim,
however.
a. It was all about the role played by a single City Council
member — Lisa Goodman.
D. The "bad facts" for the City, according to Judge Aldrich:
1. Council member Goodman came out early against the project
(in her district).
2. Five months before she voted, she told the developer she
intended "to turn down the project."
3. One month before, she emailed constituents that she was not
supportive of the high rise.
4. Weeks before, she helped constituents target supposed
undecided members.
5. She also emailed colleagues on this,
6. She voted on the CUP and variance requests , despite her role
as an advocate.
0
E. Judge AIdrich's procedural due process analysis of extra -record
communications
1. Procedural due process includes "thy ability and opportunity to
confront and respond to issues raised that may impact the
decision-making process," {citing Rathkopf).
2, The "official record" should have included Goodman's
"critical" emails to other Council members, and "in response to
her constituents voicing her staled position."
F. Judge Aldrich's procedural due process analysis of when Council
member Goodman made up her mind
1. Goodman "took a position in opposition and exhibited a closed
mind ..Prior to hearing Plaintiff s -appeal ..."
2, Goodman adopted an advocacy role:
a. "Such actions were improper and impermissible for
someone acting in a quasi-judicial capacity."
� 3. Aldermanic courtesy ... is given substantial weight.
G. Judge Aldrich's bottom dine
I . "Goodman's actions, coupled with
2. the lingering effects of aldermanic courtesy and
3. the reliance, on the part of the City Council in general, on
undisclosed communications and evidence not made a part of
the official record
4-V vitiated Plaintiff's right to a fair hearing and violated its right to
procedural due process."
H. So how is the City — the only defendant -- liable for this?
1. Footnote 4 {last page}: Citing a 1960 New York case, Judge
Aldrich stated that "participation in the deliberation by a
member who should have been disqualified vitiates the entire
proceeding."
J
a. He did not follow a 1966 Minnesota Supreme Court
decision to the contrary.
2. "The City condoned or otherwise ratified the unlawful conduct
of Goodman and others," making it liable for the decision.
IV. The domino -effect of reclassifying a kind of rezoning from legislative to
quasi-judicial: Albuquerque Commons P -Whip v. City Council (N.M.
2Q08) and (N.M. Ct. App. 2009)
A. A developer owned a 28 -acre former school site within a 460 -acre
"Uptown Sector," which is governed by a 1981 Uptown Sector Plan
"("USP"). The developer submitted a site plan for "big box"
-(/, development of the 28 acres while the City was re -thinking its USP.
The City paused : to await preparation of the revised USP. 4n an
expedited basis, a draft 1995 USP was drafted and circulated,
B. The City Attorney considered a Sector Plan a form of legislative
zoning, and therefore advised the Council to consider the proposed
revisions in a legislative proceeding.
C. The President of the Uptown Association (a private citizen) then
contacted a City Council member after she hadproposed amendments
to the draft .1995 USP to ease its impact on the 28 -acre parcel, and
encouraged her to drop those amendments. He told the council
member that, ifshe worked at it, she could get the four votes needed to
pass USP amendments favored by the Uptown Association.
D. Through a text amendment, the USP was revised. It limited the
intensity of development on the 28 acres. The site plan was denied.
E. Thirteen years later, the New Mexico Supreme Court held that the
City Council incorrectly classified the USP amendment as
"legislative," because the changes were confined to only about six
percent of the total Sector area and affecting only three landowners,
and were tailored to affect only the 28 -acre parcel, while exempting
existing businesses.
F. The. next year, the New Mexico Court of Appeals held that the City
deprived the developer of procedural due process, citing the Supreme
Court's conclusion the previous year that the decision was quasi-
judicial.
It held the balance of interests "weighs in favor of providing
10
a property owner with an impartial tribunal — one free from ex parte
contacts — prior to implementing a piecemeal rezoning." Citing the
Uptown Association President's contact with one council member, the
Court of Appeals noted that "this ex parte contact had a direct,
negative effect on" the developer's protected property right.
G. The jury's award to the developer of over8 milDon n Section 1 983
damages was upheld, along with an award of attorneys' fees. The
U.S. Supreme Court denied certiorari,
V. When a decision maker has held peacemaking and adjudicative rotes in
the same controversy: Armstrong Y. Turner Co. Board of Adjustment
(S.D. Aug. 26, 2009)
A. A grain elevator company proposed to construct a new storage facility
on property just outside the city limits of Viborg, South Dakota. It
abutted single-family residences {within the city}. The facility was a
conditional use, so the elevator needed the County Board of
Adjustment to issue a CUP.
B. Instead of seeking a CUP, the elevator applied for a building permit,
which the zoning administrator issued by mistake. The administrator
caught the mistake, but only after the elevator spent $44,000 on the
facility. This caused members of the County Board to worry about the
County's possible liability. One Board member, Mr. Van Hove, made
contact with attorneys for the elevator and homeowners in an attempt
to negotiate conditions that would satisfy the homeowners.
C. The elevator applied for a CUP. At the Board of Adjustment hearing,
homeowners complained about the effect of the facility on the
residential atmosphere. The Board denied the CUP because the
application was incomplete.
D. While the elevator resubmitted its application, a vacancy arose on the
board, filled by County Commissioner Van Hove. He then
participated in the second CUP hearing, and moved to approve the
CUP (which was unanimously approved).
E. On certiorari, the homeowners complained they were deprived of due
process- because Van Hove did not disqualify himself because of his
efforts to negotiate a solution before joining the Board of Adjustment.
11
F. The South Dakota Supreme Court held that "the due process standard
for disqualification in a quasi judicial proceeding is that an official
"must be disinterested and free from bias or predisposition of the
outcome and the `very appearance of complete fairness' must be
present."
G. Because of Van Hove's attempt to get the parties to negotiate a
settlement (which was not disclosed at the hearing where he voted), he
should have been disqualified.
H. Although it was unanimous, his active role, and his position as County
Commissioner, possibly influenced the other members' votes. The
CUP was therefore vacated.
iz
IP2
CITY O IOWA CITY
MEMORANDUM
DATE: 2128/2007
TO; City Council
FROM: Eleanor* Dllk s, City Attorney
E: Rezonlngs, Due Process And Ex Parte Communication
INTRODUCTION ISSUE
In Sutto v. Dubugue Cl!y Council, Slip Op. No. 85104-1067 (September 29, 2006) the Iowa
Supreme Court held that the Dubuque City Council's rezoning of a parcel of property from a
commercial recreation distrifct to a planned unit development PUD district was a "quasi-judicial"
s opposed to legislative proceeding. The issue in was the nature of the proceeding one
must use to challenge a zon[ng decision. However, the court's characterization of the rezoning
as Uq a 1-j lel l" has prompted an examination of the extent to which the due process
requirements that apply to quaslvjudiclal Modica e.. Board of Adjustment) apply to a ftislative
body lithe City Council when it is makIng a rezoning decision that Is quasi-judicial In nature.
CONCLUSION
Due process requirements apply to quasi-judicial proceedings and generally not to legislative
proceedings. In Button, the court explained that zoning decisions can be either legislative or
quasi judicial In nature. 'When -a muAcipai legislative body enacts a comprehensive plan and
zoning rode It acts in a policy making capacity. But In amending a zoning code, or reclassifying
lard thereunder, the same body, in effect makes ars adjudication between the rights sought by
the proponents and those claimed by tete opponents of the zoning change.' Slip Op. p. (quoting
Fleming v. Tc ma, 81 Unlash. 2d 292, 299, 502 P,2d 327, 331+ (1972)). Under the standards set
forth in the Sutton, case, the majority of zoning decisions made by the Iowa City City Co ncaro
quasi- judicial In nature, with respect to these decisions, I advise that the following charges be
made in order to assure that the participants are afforded due process;
I. Ex parte.communlotions. In the light of the differences between quasiludicial bodies
and iegisraUv bodies raking quasi-judicial decisions, I do not agree with the position of some
commentators that the mon case requires that Council members have no ex parte
communications. unications. , e. . '"l cent court case decision charges rezoning process", February
2007.) However, In order to assure due process, a Council member who has had an enc parte
communication concerning the rezoning must disclose the identity of the person(s) with whom he
or slue has communicated and the substance of each communication. Such disclosure should
occur at the public hea ng. If a commu is tion occurs after the public Bearing it should be
disclosed the next time the item Is on the Councils agenda. A Council member may discuss the
rezoning with a staff member outside the public forum but 6 discussion with a staff r ern r � r
than, city alLorney rust be disclosed as an ex parte communication.
2. Im r0al decislo makers. Council members must remain impartial. An impartial
decislonmaker is a critical component of due prooess, Council members must keep an
open mind. Statements by council members indicating that they have made tip their mind before
they vote are not acceptable and will subject the rezoning #o challenge.
Staff r enta ori . Staff presentafioris and queaflons for staff should occur at the public
earIng, not at the work session. A staff presentation rade at the work session is on the
record, and therefore, is not ex parte. H eve , other interested parties are not able to
participate at the work session. Having all presentations and responses thereto at the public
hearing will help assure the impartiality of the decsionmakers.
DISCUSSION
E ars of fx carte Cor mu icatlo. "Ex parte' means; "Done or made at the instance and for
the benefit of one party only, andwithoutnobs to, or argument y, any parson adversely
interested,'Blacks Lair Dictionary (1999 ed.
Assume the c urx Ws agenda includes the consideration of an ordinance to rezone a particular
city black owned by John Dae. The following are examples of ex parte communications:
. John Doe calls Council member A and tells him why the rezoning Is a good Idea.
2. Neighboring propel owner Jane Smith calls Council member 13 and tells her the
rezoning is a bad idea.
. Council member C talks to Planner A to find out why Planner A thirds the rezoning I
a good idea or a bad idea.
Although It is not always clear If the matter before Council Is ie islati a/adr inistrative in nature or
q asivjudiciai, the distinction is constitutionally significant because the dine process clause applies .
to quasi-judicial l matters. Keir principles and rl ing procedural due process are notice,
opportunity to be heard, and an impartial decision maker. MatthWys v. ELdrld 424 U.S. 3191
333 (1976).
In Sutton -, the Iowa Supreme Court listed three factors that must be considered in determining
whether a zoning dcilon is quasi-judicial:
'7ho a factors include 1 rezoning ordinarily o cons in response to a citizen
application followed by a statutorily mandated public hear ; as a result of
such applications, readily identifiable proponents and opponents weigh In on the
process; and the decision is localized in its application affecting a particular
group of citizens more acutely than the public at lare.,p
Slip Op. at P.5
Most of the zoning decisions the City CouncM makes a are "quasi-judicial" because they involve a
citizen application of a localized nature that is supported by some and opposed by others.
lExceptions to this would be comprehensive amendments to the comprehensive plan or zoning
code.
The Iowa Court of Appeals has concluded that a Board of Adjustment must not engage in enc
parte communications with interested parties, see Roth a . ZoniM board of AdfustInent of Polk
County, 434 N.W. 2d 124 Jilowa Ctt App. 1988). However, the appellate courts in Iowa have not
considered whether ex pane co r unioation by city councils and boards of supervisors In quasi-
judicial ratters violates the Consfitution, Other state courts that have considered the issue
generally have not Issued a complete prchlbRio , but rather, have loomed to whether the enc pane
information was disclosed such that all panes had ars opportunity to address it and whether the
decision maker was predisposed to a decision
In a case before the Idaho Supreme Court, a limed partnership filed an appiicafxon whin the
Boise City Historic Preservation Commission for a certificate of appropriateness to demolish e
warehouse building. Idaho Historic Preservation Council inc. v. Cily,Council of Boise, 134 Idaho
1, 8 P.3d 646 (2000). After the Co mlsslon denied the application, the limited partnership
appealed to the city council. At the hearing before the city council,, certain members of the city
council stated that they had received numerous telephone calls conceming the issue but did not
identify who contacted them and' did not state what was said. The city council approved the
certificate of appropriateness, and an appeal ensued. The Court found that the Mus process
clause was violated for the following reasons:
The members of the City Council who accepted phone calls falled to disclose the
name and other Identifying inforrnatio M of the callers, and also failed to reveal
the nature of the conversation, making it impossible for the Commie lon to
effectively respond to the arguments ents that the callers may have advanced. See
Tierney, 536 P.2d at.44, while the district court found that it "(d1dj not appear
that any of these telephone contacts improperly influenced any ultimate opinion
given by the individual [City] Council members," ber ," there was no evidence to
support this conclusion because of .the City Council's failure to sufficiently identify
the callers and provide a general description of what they said in favor of or in
opposition to the destruction of the Foster Building. We hold, therefore, that the
receipt of phone calls in this case, without more specific disclosure, A01ated
procedural due process.
Its. at 655-656, 650-651 .
As explained by the Idaho Supreme Court in another case, Eacret v. Bonner qpunly, 139 Idaho
7801 787, 86 P.3d 4941 501 (2004), "the purpose of the dl olosure requirement is to afford
opposing parties with an opportunity to rebut the substance of any ex parte communications."
Most recently, the Idaho Supreme Court wrote that:
[Me recognize that due process "entitles a person to ars Impartial and
disinterested tribunal[jo but we require a slowing of actual bias before
disqualffying a deVision maker even when a litigant maintains a d cion maker
has deprived the proceedings of the appearance of fairness. DaWsco Foods Intl,
Inc.,141 Idaho at 1 18 P.3d at 123.
Cowan v. Board of CoMmissionere gf Fremonto nt # 143 Idaho 5011 5 12 j 148 R3d 1247, 1260
(2106). y
to a case from Oregon, , e bgrL ery. City, * ...�ortl�, 288 Or, 585, 607 R d 722 (1980),
opponents challenged a decision by the Portland City Council to chane the zone of a parcel of
undeveloped land based, in part, on oo ncll members' ex parte communication. The Oregon
Supreme Court wrote that the "issue is not whether there were any ex parte contacts, but
whether the evidence shows that the tribunal or its members were biased." Ld. at 590, 1254,
Thus, when a pity council discloses the information and remains an unbiased decision maker,
both the Idaho and the Oregon Supreme Courts have found that the fundamental principles of the
due process clause are met. McPherson Lwdfil Inc. v. Board of Coun Com of
Shawnee Counly,27Ken. 303, 322, 49 P.3d 522, 534 (2002) 'Wth respect to the ex parte
communications, nications, It should be noted that the pat les rust be informed of the evidence submitted
for consideration and most be provided an opportunity to respond and rebut the evidence."),*
Aan teach Defense Lund fir. Cltyo ncl it. and County of H nolu u, 7 Haw �� ,
7-73 P.2d 250, 261 (1989) 'D a process is not a fixed concapt requHiig a specific procedural
coarse In even} situation..... The full rights of due process present in a court of law, including
presentation of witnesses and cross-examination, do not automatically aattach to a quasi-judicial
h ring.' : and County of Lancaster S.0 v. Mec# len r n N.C.} 334 N.C,, 496, 511, 434
S. .2d 604, 614 (1993) " Due process requires ars It decision maker.... A fixed opinion
that Is not susceptible to charge may well constitute impermissible bias, as will undisclosed e
parte communication or a close fa itial or business retaftnship with an applicant.). t �
Massey y.. City of Chart ttet 2000 WL 339158441 *8 n. 8 KC.S per. 2000) 'When quasi-judicial
procedures are Invoked, ex Parte commun!cation 's prohibitedl,
Additionally, courts have recognized that a council member engaging in ex parte communication
is different than a district court judge doing so because councilors are elected. officials with
constituents. In Hougbam y. Le in ton -Fayette Urban County Goyernmegnt29 8W3d 370, 374
(KyAppJ999), the Kentucky c} Court of Appeals explains why elected officials are not held to the
salve standard as judges: .
We agree with the trial. court that members of co rcli do not lure in a vacuum nor
are they required to. They are elected officials who represent the community and
will be subjected from time to time to contact from constituents concerning issues,
upon which they must ultimately decide. The mere fact that they are exposed to
various information from competing groups does not make it impossible for toner
to serve and Grote. Mere contact with neighborhood groups, letters from
constituents, information gathered from staff, etc. does not, by itself, constitute
"Improper ex parte contact." if this were the vase, seldom could an elected official
make ars informed decision without 'being accursed of improper ex parte
conduct.,, . 4
This decision does not hold the City Council to a standard of Judiclal
disinterestedness. As explained above, members of the City council are free to
take Phone calls from concerned cOzens and listen to their opinions and
arguments prior to a quasl- udi l l proceeding. to order to satisfy due process,
however, the identity of the callers rust be disclosed, as well as a g8neral
description of ghat each caller said....
Florida court also acknowledged this pDliticral reality when it stated:
[Me recognize the reality that (county] commissioners are elected officials In
which capacity .they may u navoldahly be the recipients of unsolicited ex parte
communications regarding quaslajudlcial metters they are to decide. 'rine
occurrence of such a communication In a quasi-luftlal proceeding does not
mandate automatic reversal. LennjMs v. DadeW„C 589 S . d 1337, 1341
(Fla.App. 3 Dist, 1991)4
Finally, In Sutton the Iowa Supreme Court relied heavily on the opinion of the Washington
Supreme Court in ,Fl ins v. Cijy of Tacoma, to that case the WashIngton Supreme Court held
that the appearance of fairness doctrine applied to all hearings conducted by municipal legislative
bodies aimed at amending exlsflno zoning odes or reclassifying land thereunder. It is notable
4
that the falmess doctrine, wlchhas singe been codified in Washington, Ones not completely
prohibit enc parte communication, but rather, requires disclosure of the communication at the
hearing. Wash. Rev. Code Section 42.36.060.
Steve Atkins, City Manager
Dale Helling, Assistant City Manager
Marl
ana ar-
are Karr, City Cid
K n'n Franklin, Director of Planning & Community Development
Sarah Holecek, First Assistant City Attorny
Mitch Behr, Assistant My Attorney
Sue Dulek, Assistant City Attorney
Eric Goers, Assistant City Attorney
5