A quasi-judicial land use proceeding requires an impartial
decisionmaker, like any courtroom proceeding. State law does its
best to spell out what constitutes an "impermissible
violation of due process":
A member of any board exercising quasi-judicial functions
pursuant to this Article shall not participate in or vote on any
quasi-judicial matter in a manner that would violate affected
persons' constitutional rights to an impartial decision maker.
Impermissible violations of due process include, but are not
limited to, a member having a fixed opinion prior to hearing the
matter that is not susceptible to change, undisclosed ex parte
communications, a close familial, business, or other associational
relationship with an affected person, or a financial interest in
the outcome of the matter. If an objection is raised to a
member's participation and that member does not recuse himself
or herself, the remaining members shall by majority vote rule on
It is not common to see an effort to recuse, or disqualify, a
member of a board sitting in a quasi-judicial proceeding. It
is even less common to see a boardmember recuse himself or herself.
And it is even less common to see an effort to recuse, an
objection from the boardmember to the effort to recuse, and a vote
by the board to recuse that objecting boardmember.
This happened recently in the City of Statesville, North
Carolina, over a City Council's quasi-judicial approval of a
site plan for a highway-side travel plaza. In
Campbell v. City of Statesville, No. COA16-101 (October 4,
2016), the North Carolina Court of Appeals affirms the trial
court's agreement that the City Council correctly disqualified
one of its own members -- over his objection -- from his
participation in the City Council's consideration of an appeal
of the City's approval of the travel plaza site plan.
The North Carolina Court of Appeals determined that the trial
court looked, correctly, at the recusal issue de novo
(that is, "anew"), and the Court affirmed the trial
court's decision. Here are the circumstances under which
the trial court affirmed the City's decision to recuse the
quasi-judicial boardmember, which seem to be "OK" with
the North Carolina Court of Appeals:
The evidence here shows Councilman Schlesinger had both a fixed
opinion not subject to change and a financial interest in the
outcome of this proceeding. Councilman Schlesinger has participated
in prior litigation opposing the truck stop as a sort of
"named Plaintiff", and he purchased an Internet domain
("Nosvltruckstop.com) devoted to opposing the truck stop and
promulgated a message on this website in opposition to this
development. This website even went so far as to say, "we are
firmly against any action which may lead to the approval of a
truckstop at the intersection of Old Mocksville Road and Highway
64." He also testified in a prior hearing that he believed the
value of his home would decline if the truck stop were developed on
this site. Therefore, and to keep safe the Constitutional Due
Process rights of these Applicants, this Court has no choice but to
hold that the Statesville City Council rightfully recused
Councilman Schlesinger and committed no error of law. This court
further holds that, in addition to the implications of the listed
reasons for recusal in § 160A- 388(e)(2), to permit Councilman
Schlesinger to have heard and voted on this matter would have been
akin to allowing a Judge who had previously expressed vocal, public
opposition to a particular party to litigation – and
participated in that litigation extensively – to later sit in
judgment of that party in the same or any closely related
litigation. Insofar as the N.C. Code of Judicial Conduct would
prohibit similar behavior, and insofar as common sense would
demonstrate that allowing Councilman Schlesinger to
participate would have given a clear and distinct impression of
impropriety, the City Council's vote to recuse him was valid
and not erroneous.
"Recusal" is an important tool to maintain the
integrity of legal proceedings -- it's as much about perception
of fairness as it is about actual fairness -- but it is not a tool
to be used lightly. When factually and legally justified,
however, it is an important tool to consider.
"The bad news is that you've been DQ'd. The good
news? Well, you've been DQ'd."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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