By Tami Tanoue, CIRSA Executive Director
In my earlier blog post on electronic meetings, I pointed out that quasi-judicial hearings don’t lend themselves to “calling it in” in an electronic format. However, these are unprecedented times. Many localities have already been under “stay at home” coronavirus/COVID-19 orders, and the Governor recently issued a statewide “stay at home” order. And even if governing body proceedings may not be subject to such an order, the underlying public health rationale for limiting in-person gatherings is still pertinent. So, what’s a governing body (or other body with quasi-judicial functions) to do?
What’s the problem, anyway?
The concerns about doing a quasi-judicial hearing electronically arise from (1) the need to afford affected parties and individuals procedural due process; and (2) the practical problems involved in trying to replicate a “meatspace” hearing in an electronic format. If these concerns can be addressed, then perhaps an electronic quasi-judicial hearing is feasible. But the devil will be in the details, and there are a lot of devilish details.
Procedural due process.
In a nutshell, the US Constitution requires notice and a fair hearing before an impartial body prior to taking an action that affects the property rights of an individual or business. So, you say, all we need to do is to give notice to the affected person or entity that the hearing will be held electronically, make sure there aren’t any obstacles for participation by the person or entity, and then it’s business as usual, right? Well, let’s look at some of those devilish details.
In the context of a quasi-judicial matter that has only one affected party, it’s easy enough to ensure that notice and an opportunity to be heard are afforded. An example might be a hearing on an alleged delinquency in remittance of a local tax; the affected party is the taxpayer. But what about a hearing on a new liquor license application? Is it sufficient to ensure that the applicant is notified and has an opportunity be heard electronically? What about others in the affected neighborhood, who may want to and are legally permitted to have a say? Will you be able to ensure an opportunity to be heard for them? What if someone in the neighborhood really wants to testify, but can’t use your chosen electronic format? And how will you ensure that those who are testifying really are within the scope of the defined “neighborhood”?
These questions can get even more complicated in the context of a site-specific land use application. In liquor license matters, at least you have a “neighborhood” that creates parameters around those who potentially may have a right to testify. Land use ordinances vary greatly, but it’s very possible that the issue of who can or must be allowed to testify is not defined as clearly as it is in the liquor code and regulations. For example, while your land use code might say all landowners within a few hundred feet of the property subject to an application get a mailed notice of the hearing, that probably doesn’t mean those surrounding landowners are the only ones with a right to testify.
Moreover, if you’re like many municipalities you likely have been very inclusive and allowed any citizen who desires to speak at a land use hearing to do so. Perhaps you’ve held them to a time limit and reminded them to speak to the issues at hand. But otherwise, you’ve let them speak, and then given their testimony the appropriate weight when it comes to deciding the case. If you’re a municipality that uses this approach, haven’t you already set an expectation that anyone can testify at your land use hearings? So, if you’re contemplating an electronic land use hearing, will your citizens expect that you’ll continue with an inclusive approach?
And what if you have a party who really, really doesn’t want an electronic hearing? Can you hold the hearing that way over the party’s objections? I know, I’m asking a lot of questions here…but when we’re in uncharted territory, there are bound to be more questions than answers.
But wait, there’s more! If the due process issues didn’t give you a headache, some of the practical considerations surely will.
“Meatspace” hearings deal with people in the room effectively. You know who the parties are, and you can see who’s signed up to testify. You probably have in place a signup sheet, and it may even divide witnesses neatly into “pro” and “con” categories. If you’re not currently in the practice of having a signup sheet, it’s a handy tool to consider. It’s a useful way for parties, other witnesses, and the presiding officer to gauge how much time is available or will be needed. In an electronic hearing, how will you provide the cyber-equivalent of a signup sheet? You’ll want to explore the ways in which your web conferencing app can work for this purpose.
Documents and other exhibits can also be dealt with effectively in meatspace. People bring handouts, which can be marked and numbered with labels. They can be passed out to the decision-makers. If there’s an opposing side, they can be passed over to the other side of the room, where the opposing side can make an objection to a specific exhibit. The presiding officer can rule on the exhibit, and then the exhibit can be admitted for further viewing, or not. How’s all that going to work in cyberspace? Exhibit management is an important part of the hearing, and without some heavy-duty advance planning, you could have some problems.
The social dynamics, and their effect on a hearing transcript.
My prior post addressed the problem of social dynamics in an electronic setting. How do you keep people from interrupting one another? What is the electronic equivalent of a gavel to bring order when the hearing may be slipping into chaos? What about all of the electronic bugs and flubs that accompany every web conference meeting – people muting themselves inadvertently, not muting themselves inadvertently, dogs barking, bad wifi, etc., etc.?
We can laugh off this problem in an ordinary web conference call. But one of the high-stakes issues in an electronic hearing is the protection of the transcript! A transcript of the hearing will become necessary in the event of an appeal. The transcript will be used by the reviewing judge to decide the issues on appeal; the judge decides whether you arrived at the right decision by reviewing the transcript of the testimony that you heard, and the documents that were entered into the record of your hearing. So an accurate transcript is a critical piece of any appeal. How can you expect an accurate transcript to be made if the hearing is riddled with interruptions, garbled voices, etc.?
Avoidance. The first and best suggestion remains avoidance. If you can wait on holding a quasi-judicial hearing until it can be done in meatspace, then you can avoid a host of headaches!
How can you avoid a deadline that’s already set in your own code? Another good question! One option might be the approach taken in this Town of Lyons ordinance, which gives the applicant the choice to hold off on having the hearing, or to go ahead and do it electronically. Giving the applicant the choice is a great idea, in that the applicant can’t then complain about a delay that he or she chose! But fingers crossed the applicant doesn’t call your bluff by opting for an electronic hearing, especially if you’re not yet fully prepared.
As another option, how about a brief (30-60 day) moratorium on all quasi-judicial hearings? You’ll have to ask a smarter person than me, like your City or Town Attorney, on whether and how this can be accomplished. But the current state-wide stay-at-home order might be a reasonable basis for a temporary time-out on conducting hearings. While similar in effect to a moratorium, another more focused option would be to temporarily suspend (or extend) those deadlines in your own code that foreseeably will be problematic during this crisis.
Rules, rules, rules. If you’re going to have to do one or more quasi-judicial hearings electronically, then you’ll likely need some rules of procedure that specifically address the problems inherent in an electronic format. Exhibit management would be one big problem, as described above. If you had in place a process that called for all proposed exhibits (and perhaps witness lists) to be submitted 10 or more days before the hearing and made accessible to parties and other participants, that might be helpful. Perhaps you could have a rule in place for lettering/numbering of exhibits, or the City/Town could letter/number all received exhibits before making them accessible. These kinds of rules are easy enough for parties who have attorneys, but you’ll have to think about how citizen-witnesses unrepresented by counsel are going to navigate them. Perhaps you can provide an informational guide on your website for your citizens.
Objections! Another thorny issue is dealing with objections to testimony or exhibits at the hearing. It’s tough for a presiding officer who isn’t an attorney or judge to deal with objections under the best of circumstances, when the attorney is by your side. How will you deal with objections in cyberspace? Will you allow them, not allow them, note all objections for the record but not decide on them, refer them to your attorney for a ruling…or what? There are ways to deal with objections in cyberspace, but your rules may need to specify how your city or town plans to approach them.
Script it. If you’re the presiding officer, does your municipal attorney provide you with a “hearing script” for each type of quasi-judicial hearing you conduct? If you operate with such scripts, you know how helpful they can be in keeping everyone on track and on the same page. If you don’t, you might need to consider putting this practice in place. You’ll also want to tailor the script to proactively address issues unique to a virtual hearing, with the goal of replicating, to the extent feasible, the levels of due process and good order that are afforded in meatspace.
Similarly, are you provided with a staff memo that includes staff recommendations, pros and cons, and perhaps even draft “approve” or “disapprove” motions? If things like this aren’t already in practice, they may become more important in cyberspace. Your attorney is accustomed to stepping in and helping you do the right thing when the social dynamics in meatspace seem to indicate confusion or uncertainty. That luxury may be denied in cyberspace, so structure and guidance need to be provided in advance. Or perhaps your new procedural rules could specify that the body will recess after the hearing and direct the city/town attorney to prepare draft “approve” and “disapprove” motions or decisions for later consideration by the body.
Think of your citizens. As noted above, it’s one thing for parties represented by counsel to navigate this brave new world. Indeed, analogues for electronic hearings already exist in various judicial and administrative venues. But for your citizens who are unrepresented? Your hearings were already scary, intimidating, or confounding to them. Multiply that by several times for citizens who are unfamiliar with technology, who have disabilities that may prevent ready use of the technology, or have no technology newer than the telephone! Perhaps a member of your IT department could serve as a rudimentary call-in or web-based “help desk” for citizens trying to access the technology. You’ll want to make sure that the technology includes a plain old phone-in option for those who don’t otherwise have the necessary hardware.
Do your quasi-judicial processes include a means for citizens who don’t want to testify to submit their views in writing or via email? If you don’t have such a process in place, this is another thing to consider. It would give citizens a route to be heard if the demands of technology are too daunting for them.
Protect the transcript. As noted above, the transcript is critical! Presiding officers need to keep in mind, during every moment of the hearing, that someday a human being may need to listen to the recording of the hearing (yes, don’t forget to record the hearing!) and make a word-for-word transcript. Any interruptions, noise, etc. will make it difficult or impossible to create an accurate transcript, and will increase the cost and time required. Step in if interruptions are occurring and try to put a stop to them. Figure out some way to “recognize” individuals so that they can be given a chance to speak without interrupting someone else. Perhaps the “chat” function of your web conferencing app could be used for people to ask to be recognized. If people are talking about a document, be sure that document is identified on the record so that a reviewing judge will know which document is being referenced.
Presiding officers: you got 99 problems. Needless to say, if you’re the presiding officer, you’ll be in charge of a three-ring circus. And you’re still a voting member, right? You’re going to have to juggle all of your chairperson duties AND try to follow the substance of the hearing so that you have the information you need for your vote. I can only say, “I feel bad for you, son.” (You got 99 problems and an electronic hearing is all of them.) Members, please be aware of your presiding officer’s challenging role, provide support where you can, and don’t add to the burdens.
Start small. And one last suggestion: if you possibly can, start small, with a matter that you think (or hope) will be straightforward and non-controversial. That way, you can work your way up to more complex and lengthy matters, and get your “practice” in with a shorter, simpler matter.
I was going to refer to this post as “best practices” for conducting an electronic quasi-judicial hearing. But you can’t really have “best practices” for the bleeding edge of a new and largely untested approach. You can only have “mitigation suggestions.” So please view this post in that spirit. And if you’re designing procedures for electronic quasi-judicial hearings, approach that effort in the spirit of providing the same due process you would in meatspace.
The other thing I’ve learned in this crisis is that a perspective that seems to be the right one today may need to be re-visited and re-tooled tomorrow. So please continue to check back as needs and thinking evolve. Check in regularly with your municipal attorney for his or her opinions; at the end of the day, your municipal attorney’s opinions are the ones that count! Use the great resources that CML provides. Call or email Sam Light, CIRSA’s General Counsel, too; he and I are both providing our thoughts regularly on the CIRSA blog. Your comments, reactions, push-back, and experiences are always welcome; please share them with Sam or me.
And finally, let’s be clear: I’m not necessarily advocating for a shift to electronic quasi-judicial hearings. Quasi-judicial matters don’t lend themselves to an electronic format! Did I say that already? But necessity is the mother of change as well as invention. I hope this post alerts you to least some of the issues to address, if you think you might need to move in this direction.
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