Strib online today, here, this excerpt:
Judge says Minneapolis council member Goodman showed bias against developer
By STEVE BRANDT, Star Tribune - Last update: September 17, 2009 - 6:28 AM
A Minneapolis City Council member's old e-mails now could cost the city millions if a developer has his way.
A judge ruled Wednesday that Council Member Lisa Goodman displayed such bias against a proposed 21-story residential tower near Loring Park that he set a hearing on potential damages; developer Brad Hoyt wants $23.6 million.
Hennepin County District Judge Stephen C. Aldrich determined that Goodman improperly organized neighborhood opposition to Hoyt's Loring Hill project and tried to sway fellow council members against it while she was supposed to keep a quasi-judicial neutrality. He cited a series of Goodman's e-mails that an investigator for Hoyt dug out of the city's electronic archives shortly before a nine-day civil trial that began in June.
Aldrich set a Sept. 29-30 hearing on whether the city should pay damages to Hoyt.
The judge dismissed two of Hoyt's claims but agreed with his argument that Goodman's bias violated his procedural due process rights and deprived him of a fair hearing before the council.
Aldrich wrote: "The city condoned or otherwise ratified the unlawful conduct of Goodman and others whose conduct directly injured plaintiff, thereby making [the city] liable for her actions."
The city said it was pleased by the dismissals and was analyzing the impact of Aldrich's ruling on the procedural issue.
Hoyt wanted to build his slender condominium tower in the Loring Hill neighborhood, with townhouses around its base. He applied for city permits and variances in 2004, but the Planning Commission denied his requests. He appealed, but the council unanimously denied it. Hoyt submitted a revamped proposal but then withdrew it and filed suit.
Aldrich found that the city acted reasonably on the merits in that denial, and he didn't buy Hoyt's argument that the city approved similar proposals. The city argued that the project was too tall for the six-story scale of the Loring Hill area. Aldrich found that argument reasonable after touring the neighborhood and considering the city's downtown-area plan.
Mike Christenson, who heads the city's development arm, said Goodman's view of the project was based on planning staff findings and city plans. "I don't think it's about bias by any council member against the developer. It's about the height of the building," he said, noting Goodman supported Hoyt's revamped proposal for a shorter structure.
Goodman represents the downtown and Cedar-Isles area, and the ward's concentration of businesses and affluent residents has given her a $116,000 campaign treasury, which dwarfs those of other council members. She has been twice reelected with more than 80 percent support, and has developed a reputation as a knowledgeable but sometimes brash council member. Her office referred calls to the city attorney's office.
"I think this is extremely damaging to her and to the city," said Pat Scott, who chaired the zoning committee during her eight years representing the ward, before Goodman. "I think it damages the credibility of any public official when this kind of thing happens."
Michael Katch, one of Goodman's challengers for reelection, said the decision reinforces that council members can't take sides in zoning disputes.
[italics added] There's more to the Strib item, so have a look. Last excerpted sentence, WHY NOT? Taking sides because of a personal animosity to an individual, independent of what is at issue, clearly that is wrong. But to have an opinion based on prior knowledge, and to have exercised protected rights, should not disenfranchise a council member. This not where a deep jury pool exists. This is where you have a legislative body, doing its job. You cannot as with a jury, rule out anyone who has heard things about a situation before a hearing on it, otherwise you'd probably have to disqualify all council members on all determinations. It is their DUTY, to be well informed, and not to merely listen to two sides disagree over what is best, independent of what citizens think best, and council members believe is best policy after having run for office articulating policy and issue beliefs.
It is nonsense. Beyond that, the council was unanimous with a slam down of the proposal. Assuming for the sake of argument that Goodman's conduct was procedurally improper, as the judge apparently felt, how can the donkey of a developer and his attorney with a straight face argue millions of dollars as a damages bonanza is due because some right of the developer was impaired in a way that caused damage? In this reporting, the judge indicated the discretionary denial of a variance was proper; and how far does a "right" to a variance extend? If it's a right, then it's not a variance to anything, it's due as a right then, and not as a matter of permission.
It's strange, and I do not think there is any dead-on-point precedent, with facts so comparable that the issue is not novel and needing appellate review.
This decision seems to imply that I could not run for a seat on the City of Ramsey council on a platform of protecting existing neighborhoods (by being almost always against variances to build new housing that could be viewed as intrusive or unfit for existing neighborhoods, without suitable density transition, etc.), and that if I ran on the issues beyond a vague "Trust me" I could be putting myself in a position of being ineligible to do a part of the job. Were I running on issues and were I elected, this outcome suggests I could be sued for subsequent exercise of my citizen 's right to speak out and to organize community feeling for a position I believe right, if I then also sit on a panel making decisions consistent with my conscience and campaign promises, while the panel considered a variance which was of the type that I ran generally in opposition to, and about which I had lobbied community opposition.
It is a Mad Hatter's Tea Party decision, that way.
League of Minnesota Cities should have its own policy on the proper reach of sovereign immunity and on the constitutional free speech and free assembly rights of council members. Have a look here, for their advisory handbook chapter on legal liability [including info on the concept of sovereign immunity], for assisting city officials. This Google gives LMC website links for the search word "variance."
This is not a conflict of interest situation such as where a family member's property development hopes are considered and the relative sits in judgment of whether or not kin get a shot at a big profit. Goodman in the article was not reported to have any interest in the project, or any competing one, and only wanted to protect the integrity of existing neighborhoods from grossly differing development that threatened such integrity.
The story will grow, an appeal will arise from this, and the very notion of sovereign immunity is at issue, as well as the protected constitutional rights of elected representatives. It's a very strange result and I hope Strib posts the Judge's written order and opinion to see the "reasoning" underlying such a result. (Also, seeing the briefing of each side might show how the thing was argued, which often can lead to off-the-wall results if things get side-tracked by fancy lawyering away from "First, judge, make sense, please.")
Would this mean that an abortion foe would be wrong in sitting on a hearing of whether a clinic that intended to offer abortion services would be granted a variance to locate at a particular site? Would a Muslim's religion bar him from sitting in a hearing about a dog kennel? At Ramsey meetings on zoning matters, I have heard one council member say, "I drove to the property and had a look, walked it with the owner, and ...". Would that be a bias, since it depends on facts outside of the hearing record? It seems exceptional diligence would be penalized.
All the mischief hinges, strangely, but legal precedent can be strange, on whether the council member wears a "quasi-judicial" hat on zoning matters, including discretionary variance from zoning regulations on a case-by-case basis, or is acting quasi-legislatively, where the courts yield and deny review jurisdiction except to review an ordinance or charter provision as consistent with or inconsistent with preemptive statutes or constitutional precedent, etc. To every "rule" there are "exceptions" and often the exception swallows the rule.
For anyone inclined, Minnesota has online cases with a search feature; here, with the search page here. A bit of a search yielded the following cases as interesting and arguably having bearing, here, here, here and here, (ignoring distinctions of published and unpublished cases, and official reporter citation for published cases). Nothing in those cases, is directly on point as to whether "bias" in this instance disqualifies sitting in a "quasi-judicial" variance hearing; but it seems the court is taking too wooden a view of the discretion a local council member has, after having faced an electorate that chose that person by ballot to represent the electorate, in making decisions affecting the electorate.
Nobody in this case is contending Councilmember Goodman did not base her decision entirely upon her belief of what was best for the neighborhood and the entire electorate. The developer did not like the result, and alleges prejudgment, but not wrongful motive [as with conflict of interest situations].
__________UPDATE____________
To help add to your confusion, there are cases explaining concepts of immunity for discretionary decisions - no one claiming Goodman acted with malice or that, as a citizen she is barred from nondefamatory opinion-mongering and community orgainzing - the claim being that her activities of that kind biased her review of a zoning variance matter when she subsequently put on her council hat and sat and ruled. The notion is roughly that ministerial acts done wrong are not immune, but discretionary matters of policy making are immune; and with that rough rule of thumb, five online cases are: here, here, here, here and here.
So, there's a lot of generic pontificating over this and that being immune or not, and then a basically arbitrary ad hoc decision is made, and given ex post facto window dressing.
Enjoy.
A coincidental question - would you want your representatives to be as informed as possible and to be wise and experienced and up to current happenings and moves and proposals in the community from the start; or is it best that putting on the now-we-are-a-council-reviewing-a-variance hat one only weighs what the city staff says, what the applicant says [via a usually slick obnoxious attorney], and what is said by any neighbors showing up at hearing [even if you know many, many others hold a range of differing opinions]?
If the staff controls the info fed to the council, along with the applicant, and the decision is to be based only on that; then has the system moved the legislative function and its discretion to the executive - because control of what facts are developed is control of what decision will result so that if staff and the developer want the thing built, only the neighbors showing up and making semi-articulate to sound objections will counter. Is that proper?
Should those not elected by any vote of people be given de facto control of the decision making of those who were elected, by being an information gate and/or bottleneck?
Is that sound government? Is that what this judge is missing, as a relevant thought?