(Nov. 22, 2010) -- LBReport.com provides a link below to a CA Court of Appeal ruling in a case in which Los Angeles City Councilmembers were captured on video by an appellant not paying attention during a quasi-judicial appeal (and then voted to deny the appeal).

The lawyer representing an adult entertainment venue (appealing a zoning administrator's denial of a requested action) brought a videographer to the City Council hearing...who recorded the L.A. Councilmembers' behavior during the hearng.

The full text of the Appeal Court's ruling (Lacy Street Hospitality Service v. City of Los Angeles) can be viewed here and we excerpt salient text below.

...A picture is worth a thousand words, and here the picture was a videotape. LSHS [the appellant] recorded the city council hearing, slowly moving the camera’s gaze back and forth from one end of the council table to the other, at times lingering on particular council members, capturing their behavior at that moment. The tape shows that when the council president summoned LSHS to the speaker’s lectern to present its case, eight council members--three of whom were absent--were not in their seats. Only two council members were visibly paying attention. Four others might have been paying attention, although they engaged themselves with other activities, including talking with aides, eating, and reviewing paperwork.

One minute into LSHS’s presentation, a council member began talking on his cell phone and two council members, one of whom had been paying attention when the hearing opened, started talking to each other. A minute later, two other council members struck up their own private conversation. Three minutes into his presentation, LSHS’s counsel complained "it doesn’t appear that too many people are paying attention," an observation the videotape verifies, as only a few council members were sitting in their seats not talking to others...

Despite LSHS’s public reproach of council members, their private conversations and pursuit of other activities continued. For example, the council member with the cell phone started another conversation on it and four council members talked among themselves or with others. One council member was especially peripatetic, walking from one side of the council chamber to the other to talk to different colleagues. Only five council members and the council president sat at their desks spending most of their time not talking to anyone--but even some of them turned their attention to other things from time to time.

After 10 minutes, LSHS’s presentation ended and those opposed to the zoning modifications began. Although the speakers changed, the council’s behavior did not. [footnote text: The city’s argument that the hearing was "fair" because council members treated LSHS and its opponents alike is unavailing because LSHS and its opponents had the right to be equally heard, not equally ignored.] Some members paid attention, but even some of them divided their attention among things such as reviewing paperwork and getting up from their seats to talk to others. At one point, the camera zoomed out for a wide angle shot of the entire council table. At that moment, only five members were at their seats, and only one member appeared to be focusing on what the speakers were saying.

We do not presume to tell the city council how it must conduct itself as a legislative body. Here, however, the city council was sitting in a quasi-judicial role, adjudicating the administrative appeal of constituents. A fundamental principle of due process is "he who decides must hear." (Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 276.) The inattentiveness of council members during the hearing prevented the council from satisfying that principle. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1024 ["due process requires fair adjudicators in administrative tribunals"]; Henderling v. Carleson (1974) 36 Cal.App.3d 561, 566 [takes as a given that administrative decision maker listens at hearing] disapproved on another point by Frink v. Prod (1982) 31 Cal.3d 166, 180; Chalfin v. Chalfin (1953) 121 Cal.App.2d 229, 233 [fact finder must listen to the evidence before making a decision].) Sitting as "judges" in the appeal, the council was obligated to pay attention as is the obligation of sitting members of the judiciary. (Accord, In re Grossman (1972) 24 Cal.App.3d 624, 629 ["Members of the bar have the right to expect and demand courteous treatment by judges . . ."]; Model Code of Judicial Conduct Canon 3 (B)(4) (American Bar Association 2000) ["A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . ."].) The council’s distraction with a multitude of other things during the hearing is especially troubling because it was reversing its own zoning administrator who took great care to reach his decision. It is not our province to insist that the council members consider every word of every witness. Good judgment and common sense are entitled to prevail. (Vollstedt v. City of Stockton, supra, 220 Cal.App.3d at p. 276.) Here, however, the tape shows the council cannot be said to have made a reasoned decision based upon hearing all the evidence and argument, which is the essence of sound decision making and to which LSHS was entitled as a matter of due process. Accordingly, we reverse and remand.

We reverse and remand to the city council for a hearing that satisfies appellant Lacy Street Hospitality Service’s due process right to be heard. The parties are to bear their own costs.

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