Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

This is the last in a four-part series on the Rhode Island Supreme Court’s decision in the Champlin’s Marina decision, where the court affirmed in part and reversed in part an extensive trial court opinion finding that the Coastal Resources Management Council had adversely impacted the rights of an applicant seeking a permit to expand its Block Island marina. See Champlin's Realty Associates  v. Michael Tikoian et al. (PDF).

Impermissible Ex Parte Contacts

The trail court, after extensive hearings, found impermissible ex parte contacts by several Council members, some of which ex parte contacts were found by the trail judge to have demonstrated bias on the part of three Council members. (One finding of which was overturned by the Supreme Court as to one Council member). 

While these extensive findings may be seen by some as not exactly covering the CRMC in glory, this deserves to be put in perspective. And just such perspective is found in the opinion of Justice Robinson, concurring in part and dissenting in part in the majority opinion.

Motivation and Intent

The thrust of Justice Robinson’s dissent was that he did not believe the CRMC Chairman should have been disqualified for bias and thus not permitted to consider this matter when it comes again before the CRMC pursuant to the Supreme Court’s remand. 

In his dissent, Justice Robinson noted his understanding that the majority does not suggest the Chairman had ignoble motivation or was unethical but rather that at some point during the administrative proceeding the Chairman’s “thought processes became fixed to such an extent that he could no longer render an unbiased decision”. 

Justice Robinson stated his view that the Chairman’s motivation “was simply to attempt to bring about a compromise solution with respect to a highly controversial application”, and that he “is a sincere and well-meaning public official”. Justice Robinson stated that based on his review of the record,  the Chairman was “a conscientious public official” and he believed the Chairman could have properly considered the matter on remand.

Is Clairvoyance Required of Public Officials?

Justice Robinson made a further contribution to putting the Champlin’s Marina case in perspective when he noted that the case on which the trial court and the Supreme Court principally relied, Arnold v. Lebel, which articulated impermissible ex parte contacts, was decided after the events complained of in the Champlins Marina CRMC proceeding had occurred.

        As Justice Robinson said:  

“I take no issue with the more exigent considerations relative to ex parte contacts which are the result of the clarifications that were spelled out in the quite recent Arnold  case.  However, I think it is fundamentally unfair to apply those more exigent considerations to the pre-Arnold actions...We as a society expect a great deal of our public officials--including integrity and an acute sensitivity to ethical standards.  However, I consider it unwarranted that such officials be clairvoyant as to not yet clearly promulgated expectations and norms."   

One Perspective    

It is important to keep in perspective that there are in fact real people behind these decisions, and that events don't occur in a vacuum--they occur in a context.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent talk to a regional conference of planners held in Connecticut, that is how I described a trial court's findings that a coastal permitting agency failed to follow appropriate administrative procedures.

The trial court relied on these findings to effectively reverse the decision of the Coastal Resources Management Council denying a permit for Champlin's Marina to expand its Block Island marina. See Champlin's Realty Associates v. Michael Tikoian et al. (PDF).

The Rhode Island Supreme Court has now spoken, affirming in part and reversing in part that trial court decision, in what is one of Rhode Island's most significant decisions on administrative law in recent years. (Read a copy of the high court's decision.)

It will take several posts on this blog to deal with all the issues addressed by a divided Court in this complex decision, but one thing is clear. Administrative officials, including administrative hearing officers and tribunals, such as zoning boards, will ignore this far-reaching decision at their peril.

Ex Parte Contacts

The ex parte contacts came to light in a court evidentiary hearing sought by the applicant to determine the existence of procedural irregularities. These ex parte contacts included:

• the CRMC Chairman's discussion of the pending case with the Governor’s office and with subcommittee members hearing the case;
• efforts of the CRMC chairman, along with the chairman of the hearing subcommittee, to support a much reduced expansion plan that was not presented to the hearing subcommittee and was not subject to cross-examination and challenge by the applicant and other parties
• ex parte contacts by certain subcommittee members hearing the case which the trial judge found demonstrated bias

On the subject of ex parte contacts, the Court was unequivocal. Quoting from its recent decision in Arnold v Lebel, 941 A.2d 813(R.I. 2007), which was issued after the evidentiary hearing held by the Champlin's Marina trial court, the Supreme Court reiterated that "no litigious facts should reach the decision maker off the record in an administrative hearing".

Moreover, the Court said that if the decision maker "intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal", it must notify the parties and give them the opportunity to challenge any such evidence and cross-examine anyone consulted. And this limitation applies to consultation with agency staff members as well, although general discussions with staff members on procedural matters, scheduling, etc. are not impermissible.

Lessons for Administrative Hearing Officers

What does this mean for administrative hearing officers, agencies holding administrative hearings, zoning boards and planning boards? Very simple--if you rely on any evidence that has not been put on the record in a quasi-judicial proceeding in such a manner that the parties can challenge it during the proceeding, the proceeding is defective and the decision is subject to reversal or remand.

When in doubt, put it on the record, notice the parties, and allow them to challenge.

What's Next?

In subsequent posts, we will examine the subjects of quasi-judicial immunity for agency officials, and remedies for defective proceedings. Finally, we will also try to put the case in perspective. Rhode Island administrative officials will be living with these issues for some time.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

That in effect was one of the questions facing the Rhode Island Supreme Court in its recent Champlin's Marina decision. Does a quasi-judicial hearing officer receive only a limited scope of judicial immunity? See Champlin's Realty Assocates v. Michael Tikoian et al.(PDF)

CRMC's Argument

The issue was first raised by the Coastal Resources Management Council in opposing an evidentiary hearing by the trial court to probe alleged procedural irregularities in the CRMC’s tie vote effectively denying a permit to expand Champlin’s Block Island marina.

CRMC argued that allowing such an inquiry would inevitably expose the Council members to questioning about their mental processes and decision-making, that such inquiries are barred of judges under judicial immunity and should be barred of administrative hearing officers under quasi-judicial immunity.

Protecting Hearing Officers

From my perspective in following the case, that was one of the most interesting issues raised.  Were these Council members, and others serving in quasi-judicial capacities, such as zoning board officials and members of administrative tribunals, often lawmen serving in part-time capacities, going to be protected like judges from being hauled into court and questioned about “what in the dickens were you thinking” when you voted for this or that.  And if they are not going to be protected, how are you going to get anyone to volunteer for those positions.

At the time CRMC raised the immunity argument, Rhode Island had recognized quasi-judicial immunity for administrative hearing officers only in the context of immunity from lawsuit, and not in the context of immunity in a judicial fact-finding.  Nevertheless, the trial judge clearly indicated she was aware of the potential problem and would ensure that boundaries would not be crossed.

The Supreme Court first found that the Administrative Procedures Act, R.I. Gen. Laws 42-35-15(f), provided the right to an evidentiary court hearing to explore alleged procedural irregularities.  But the Court was insistent that in any such hearing, inquiring into the mental process or decision-making of administrative hearing officers was out of bounds, for the first time formally recognizing the protections of quasi-judicial immunity in such evidentiary hearings in Rhode Island.

The Court found that the trial judge allowed questioning of the chairman of the CRMC and the chairman of the hearing subcommittee which in several instances delved into mental processes and decision-making and was therefore impermissible.

In fact, the trial judge's finding of bias against one Council member was reversed by the Supreme Court because it found that support for the finding of bias was rooted in questioning of the Council member that impermissibly intruded into quasi-judicial immunity.

So all in all, quasi-judicial immunity had a very good day in the Champlin's decision. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If there is a weakness in the Supreme Court’s thoughtful decision in the Champlin’s Marina case, in my judgment it is in the remedy imposed by a divided Court.  See Champlin's Realty Associates v. Michael Tikoian et al. (PDF)

Recall that the Coastal Resources Management Council denied Champlin’s requested permit to expand its Block Island marina because the Council voted 5 to 5 on the application; a tie vote was effectively a denial.

Trial Court Remedy

The trial court found, after 23 evidentiary hearings and one show cause hearing, that the decision-making process had been infected with impermissible ex parte contacts, and some of these contacts by Council members were found by the trial court to evidence bias. The trail court’s remedy was to disqualify the votes of the three members she found evidenced bias, leaving a vote of 4 to 3 in favor of a permit allowing expansion, albeit not of the magnitude the applicant requested.

Supreme Court Remedy

The Supreme Court rejected that remedy, holding that the proper remedy was remand to the CRMC for more hearings. The Court noted that one of the principal impermissible ex parte contacts, a compromise marina expansion plan prepared by CRMC staff at the request of the chairman of the subcommittee hearing the application, tainted the full Council vote on the application, yet that plan was never introduced nor subject to challenge.   Remand to the agency was thought to be the best remedy as it would allow for hearings on the compromise marina expansion plan.

Remedy Urged by Former Chief Justice

Former Chief Justice Williams, who was sitting on this case because Justice Goldberg recused herself, concurred in the decision in part but dissented as to the remedy. First, Justice Williams phrased his objection as to “that portion of the majority’s opinion that suggests that our decision in Arnold v. Lebel…..requires the Superior Court to remand a case in which ex parte contacts are found to have occurred to the administrative agency in every instance.” (Emphasis in original.)

Chief Justice Williams was correct to refer to this as a suggestion, as the majority noted prior precedent where the Court had refused to remand a case which had been pending for seven years because the parties have a right to have a matter decided in a reasonable period of time. But the Champlin’s majority distinguished that case because it involved only a single family house lot as opposed to the far more environmentally significant issue of significantly expanding a marina in Block Island’s sensitive Great Salt Pond.

Chief Justice Williams found that the remand to CRMC would have resulted in the matter not being resolved in the seven year time period the Supreme Court had found excessive for a petitioner to wait for resolution. He would have upheld the trail judge’s decision, without the necessity for more hearings, bringing finality to the process.

What Right is Being Protected?

There are a lot of business owners and home owners who may well agree with Justice Williams. 

As lawyers are taught in law school, “Ubi Jus Ibi Remedium” – “Where There is a Right, There is a Remedy”.

But when the remedy is nearly endless hearings, one may question just what is the right being protected.

• Email This
• Print
• Comments
• Trackbacks
• Share Link