Town residents and politicians stand at odds over the conversion of a driving range and ice cream shop—a local favorite—into a big-box supermarket. The town zoning board’s decision on an appeal of the store’s permit will determine the practical fate of a neighborhood, and the metaphorical fate of the town. The supermarket, during an appeal of its granted permit, brings in new “local counsel,” an attorney-politician who ultimately meets with four of five zoning board members individually, in-person. He claims these meetings were merely to discuss “procedural questions.” Circumstantial evidence suggests otherwise. Upon judicial review of the board’s affirming the permit on appeal, the trial judge finds that bias played no role in the board’s decision, yet articulates no standard for when a finding of bias should be made in such circumstances.
These facts are drawn from a real situation, and similar situations occur in different factual settings before municipal boards. Despite this, Massachusetts (along with roughly forty-five other states) has no established law governing the effect of such ex parte communications on those quasi-judicial proceedings, a constitutional issue of due process.
Four other jurisdictions—Florida, Idaho, Oregon, and Washington—have addressed this problem, each reaching a different resolution. Idaho has a rule implying that undisclosed ex parte communications made to municipal boards in quasi-judicial settings are fatal to the outcome of the proceedings. A Washington statute requires disclosure to avoid nullification. Florida imputed a presumption of bias onto ex parte communications, whereas Oregon takes the approach that no such presumption results from such communications.
This Note describes the issue presented by ex parte communications in the municipal context; identifies the current rules and approaches adopted by jurisdictions that have addressed this issue, weighing their various strengths and weaknesses; and considers what guidance federal administrative law can provide. Ultimately, it synthesizes, proposes, and justifies a model rule for jurisdictions that have not yet addressed this issue: a rebuttable presumption of bias, curable by disclosure on the record.
Ryan K. O’Hara, CONSTITUTIONAL/LAND USE—SMALL-TOWN POLITICS, BIG-TIME PROBLEM: ADDRESSING THE DUE PROCESS IMPLICATIONS OF EX PARTE COMMUNICATIONS IN QUASI-JUDICIAL MUNICIPAL PROCEEDINGS, 39 W. New Eng. L. Rev. 101 (2017), https://digitalcommons.law.wne.edu/lawreview/vol39/iss1/4