Friday, December 31, 2004

Due Process On Its Ear

An LA strip club advocate has smacked down the Los Angeles City Council. His complaint: councilmembers' inattentiveness violated his client's due process rights:

Armed with the videotape, Diamond filed a motion in Los County Superior Court arguing that the council's decision should be overturned because members violated his client's due process rights. When the council members are acting in a quasi-judicial capacity, as they are when hearing appeals on land-use decisions and other matters, they are required to listen, he argued.
The trial court sided with the city, but Diamond won on appeal. The
LAT article is quite funny (perhaps only if you're a leg-minded law student). Due process, however, especially when applied to legislative bodies in "quasi-judicial" situations is quite tricky. Another fatal flaw of the administrative state. At least the city tried hard, though:

In a footnote, the appellate judges scoffed at "the city's argument that the hearing was 'fair' because council members treated [the strip club] and its opponents alike."

The judges said both "had the right to be equally heard, not equally ignored."
And, of course, the article correctly points out that the ruling applies only to quasi-judicial, not legislative, proceedings. They don't have to appear to pay attention when passing ordinances. The article also quotes a local law professor who astutely asks whether the members' attentiveness would've changed the outcome. Most members in any body are fully briefed before the proceeding and already know which way they will go. Before anyone leaps at "prejudicial" charges, there is something to be said for deliberation before an emotional plea. It's not any better for one savvy actor to win over the better argument presented by a not-so-hot public speaker.

This kind of conflict captures several problems: 1) the aforementioned administrative state shortcomings, 2) the neverending battle between the perfect and the practical, 3) the shortcomings of political journalism (perhaps the writer here has practical experience working for a leg body, but likely not).

One councilmember said "It's impractical for us to sit there like students in a classroom paying attention to the professor."

Is that a true statement? Yes. Is it a oppo-commercial waiting to happen? You betcha.

There's no good answer. The realities of the job do demand that members' do 8 things at once or more. But a meaningful chance to be heard is important too . . . .

Mainly, however, I hate stories that make electeds look like monkeys, when, at the heart of it, they were doing their jobs to the best of their ability.

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