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Thursday, October 13, 2005

Law - Kentucky Court hears separation of powers question

"Limestone mine appeal covers new ground for state's justices" is the headline to a story today in the Cincinnati Enquirer. When a zoning board member votes on a rezoning issue, is he/she acting in a "legislative" or "judicial" capacity. If legislative, then the member can engage in discussions with constituents, etc. If judicial, then the member can only consider the facts on the record - no ex parte contacts.

This issue has come up with the Indiana environmental boards, re rulemaking -- can the board member have informal communications with opponents and/or proponents of a proposal. Most believe the Indiana board members engaged in rulemaking are acting in a legislative capacity. Back when the environmental boards also were charged with deciding appeals of enforcement actions, they were acting in a quasi-juducial capacity in making such decisions.

Some quotes from today's story:

FRANKFORT - When an elected official votes to rezone a piece of land, is the official a judge or a legislator - and if there's evidence to back up that vote, does it matter?

That's the question the state Supreme Court and attorneys for Boone County and a mining company wrestled with Wednesday as the court heard arguments in the case of a proposed limestone mine.

The answer could not only decide whether Hilltop Basic Resources gets to build a mine on 534 acres near Petersburg, but also what officials can say to residents about a pending zone change.

Unless the court agrees that Boone County acted properly when it denied a change in zoning for the mine five years ago, the court will be putting "black robes on legislators," Covington attorney Jeff Mando, who is representing the county, told the seven justices.

In 2003, the state Appeals Court overturned Fiscal Court's decision, saying two commissioners had made up their minds before the vote and therefore violated the company's due-process rights.

The Appeals Court said commissioners Robert Hay and Cathy Flaig made comments to residents that left the "unavoidable perception" that they were biased and therefore not an "impartial tribunal."

That decision was correct, said Hilltop's lawyer, Paul Whitty of Louisville. "Kentucky has recognized that zoning issues are not legislative matters," he said. "They are quasi-judicial matters."

Here is an Oklahoma Supreme Court ruling. And here is a Maine local government memo on "Duties and Powers: Legislative and Quasi Judicial Functions."

Closer to home, here is a publication of the Indiana Planning Association, Part 6, Ethics, that on p. 3 cites an Indiana statute, IC 36-7-4-920(g).

Posted by Marcia Oddi on October 13, 2005 08:23 AM
Posted to General Law Related