North Carolina Court of Appeals Affirms Local Government Board's Recusal of One of Its Own Members In Quasi-Judicial Proceeding
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 the objection.
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 an approval of a site plan for a highway-side travel plaza and the City Council's quasi-judicial affirmance of that approval. In Campbell v. City of Statesville, No. COA16-101 (October 4, 2016), the North Carolina Court of Appeals affirms the trial court's affirming of the City Council's decision to disqualify 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."