Quasi-judicial role can cause consternation

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With the resurgence of development in Littleton, the term “quasi-judicial” pops up a lot. However, it doesn't mean much to most people.

Basically, city council performs two types of functions. In its legislative role, it creates or amends laws that apply to everyone — traffic or littering ordinances, for example. Its quasi-judicial role, on the other hand, requires it to act as a judge, interpreting and applying existing laws to specific cases — like whether a private-property owner can rezone his lot from commercial to residential.

A simple way to understand the term is to understand that “quasi” means “resembling,” so council is acting in a capacity similar to that of a judge.

“Procedural due process is critical in quasi-judicial hearings,” reads council’s legislative policies. “This includes the right of all directly impacted parties to participate in a pre-decision hearing, their right to present evidence, to see all the evidence that will be considered by the decision-making body, and their right to confront adverse evidence.”

Residents are often frustrated by council’s lack of comment on quasi-judicial matters like rezones and liquor hearings — things that people seem to have the most passionate opinions on. But council members are only allowed to base their decisions on evidence presented during the public hearing, which is held on the matter’s second reading and must be publicly posted.

It can be frustrating for councilors, too. As those who are supposed to represent all the citizens, they spend a lot of time soliciting opinions; quasi-judicial situations run counter to that.

Rebecca Kast, a former reporter for the Littleton Independent, was mayor pro tem in 2006 when Walmart created a huge controversy with its plan to build near the South Platte River. Kast said at the time it was tough when she ran into someone at the grocery store or church who wanted to talk about it.

“The average person doesn’t understand that we’re supposed to base our decision on what we hear (during the public hearing),” she said.

Then-mayor Doug Clark said it didn’t bother him that much.

“It hopefully brings the decision process out into the open,” he said at the time. “It forces everything that’s going to be used as a convincing argument to be said where everybody can hear it and rebut it.”

People could sue the city if they felt the ruling was inappropriate, but they would have to prove council exceeded its jurisdiction or abused its discretion. To determine that, the court would only look at whether council based its decision on good evidence, not at the decision itself.

Councilors open themselves up to charges of using bad evidence when they engage in “ex parte” contact outside the presence of the opposing party — meeting with hopeful developers, for example.

“That happens sometimes,” said Kast. “I think you have to be kind of careful about that. You have to be kind of skeptical. … I never let them buy my lunch. I always say, ‘Rezoning is hard in Littleton. Make sure you talk to the neighbors.’ I kind of shy away from talking to developers in general.”

An example of an ex parte meeting gone awry is when, in 2004, then-mayor John Ostermiller had lunch with real-estate agent Kirk Douglas. Douglas was trying to broker a deal between Marathon Oil and South Suburban Parks and Recreation. He later sent a letter purportedly from Ostermiller to Marathon representatives, in which Ostermiller appears to be emphatically supportive of the deal. Douglas originally claimed Ostermiller signed the letter during that lunch, but later admitted he forged it and was found guilty of a felony.