City Council Says Listening Requirement is Bad Precedent

Los Angeles City Hall (image: Ken Lund via flickr, CC 2.0 cropped)

The Los Angeles City Council has asked the California Supreme Court to “depublish” a decision in which the Court of Appeal rebuked it for not paying attention during a hearing. See Lacy Street Hospitality Service, Inc. v. City of Los Angeles, No. B170716, 22 Cal. Rptr. 3d 805 (2004). In other words, it doesn’t want people talking about its failure to listen.

The court held that attorney Roger Diamond’s client, which operates an “adult cabaret known as The Blue Zebra,” was not afforded due process of law because council members ignored Diamond’s arguments during what was supposed to be a hearing on a zoning issue. Diamond produced a video showing the council members conversing, walking around, and talking on their cell phones as he made his argument, with most paying no attention at all. The council later ruled against his client. An appeal followed.

The Blue Zebra was entitled to a hearing, the court noted, and pointed out that it’s not a “hearing” if nobody’s listening. “We do not presume to tell the city council how it must conduct itself as a legislative body,” the court said. “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.'” The court reversed for a new hearing and strongly suggested the council should pay attention this time.

In doing so, it rejected the council’s argument that it had not violated due process because (as the video also showed) it hadn’t been favoring one side or the other—it ignored everybody. You’re still not getting it, the court explained. “The city’s argument that the hearing was ‘fair’ because council members treated [The Blue Zebra] and its opponents alike is unavailing,” it held, because both sides “had the right to be equally heard, not equally ignored.”

Last week, the council voted to ask the California Supreme Court to “depublish” the appellate decision, which would mean it couldn’t be cited as precedent in other California cases. According to the report, the city is concerned that the result could be interpreted to mean “that the council must always sit ‘still and silent’ during any proceeding.'” The court didn’t order them to sit frozen like statues, just to pay attention like they’re supposed to during a hearing. But a spokesperson for the city attorney’s office said she still thought the order was a bad idea. “We don’t think it [listening] is a good precedent for any time a government body is meeting,” she said.

UPDATE: In June 2005, the California Supreme Court agreed to depublish the opinion. This didn’t change the result, it just meant that now no one is allowed to “cite or rely upon” the opinion in other California cases. So, yes, in a sense, the court has ordered us to keep quiet about an opinion that says the government has to listen when we speak.