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THE STATE

Listen Up, Politicians: It's Ears Before Ayes

December 31, 2004|Jessica Garrison | Times Staff Writer

Striking a blow for anyone who has ever been rudely treated by government officials, a state appellate court ruled Thursday that city council members must actually listen when their constituents make official appeals before them.

It all began with the Blue Zebra, a strip club in East Los Angeles.

The owner wanted dancers to keep gyrating past the 2 a.m. closing time. The city's zoning administrator gave his assent. Neighbors objected. And the matter wound up on appeal before the Los Angeles City Council.

When the Blue Zebra's attorney, Roger Jon Diamond, and other interested parties addressed the council, most members paid little attention, as shown on a videotape that Diamond made.

In a sharply worded, six-page decision published Thursday, the state's 2nd District Court of Appeal ruled that the behavior of council members violated the Blue Zebra's right to be heard and ordered the council to hold a new hearing.

"A picture is worth a thousand words," the three-judge panel concluded. "A fundamental principle of due process is 'He who decides must hear.' The inattentiveness of council members during the hearing prevented the council from satisfying that principle."

It was June 13, 2003, Hawaiian Shirt Day in the council chamber.

Members showed off their tropical finery. Others talked and schmoozed. Some wandered around the room.

But very few of the 13 council members appeared to be listening to Diamond or the other speakers, or even sitting at their desks.

Councilman Jack Weiss, pacing behind his chair, was engrossed in a cellphone conversation. Council members Cindy Miscikowski and Bernard C. Parks leaned close in conversation. And Tom LaBonge strolled about in his Hawaiian shirt.

"Nobody, apparently, is listening right now," Diamond said at one point during his hearing. A few minutes later, he complained again.

"We're all paying attention," said Council President Alex Padilla, who did appear to be listening to Diamond.

At the end of the hearing, council members voted unanimously against extending hours for the Blue Zebra.

Diamond's complaint is a common one about Los Angeles City Council members, who until a few years ago even sat with their backs to the public.

Though they now position their comfy leather chairs to face the hard wooden benches set out for the public, many members use their thrice-weekly meetings to read their mail, catch up with one another, make travel arrangements on their laptops or pen a few lines of poetry.

The irascible Diamond, who represents adult businesses across California and has tussled with the City Council before, was not surprised -- either at their inattentiveness or their decision.

In fact, he expected it.

He showed up that day determined to teach them a lesson. He brought along a videographer to tape the scene.

Armed with the videotape, Diamond filed a motion in Los County Superior Court arguing that the council's decision should be overturned because members violated his client's due process rights. When the council members are acting in a quasi-judicial capacity, as they are when hearing appeals on land-use decisions and other matters, they are required to listen, he argued.

A trial court judge rejected that contention and sided with the city.

Diamond appealed and won.

In a footnote, the appellate judges scoffed at "the city's argument that the hearing was 'fair' because council members treated [the strip club] and its opponents alike."

The judges said both "had the right to be equally heard, not equally ignored."

Officials from the city attorney's office declined to comment on the case or say whether they would appeal.

Some legal experts predicted that the decision, which applies across California, would stand.

"They're acting a little like judges, and because they are acting like judges, they have to be judicial in the way they act," said Jonathan Zasloff, a UCLA law professor and land-use expert.

The decision applies to council members only when they are acting in a judicial capacity; when they are passing laws or handing out proclamations, they can be as rude as they please.

The judges stated, "We do not presume to tell the City Council how it must conduct itself as a legislative body" but noted that when making appeals, constituents have a right to "courteous treatment."

Still, Zasloff said, the decision points up an interesting conundrum: How much listening is enough?

In the case of whether to extend hours for a strip club that is despised by neighbors, he added, close attention to arguments might not change a council member's mind.

"Do we really think that if all the City Council members were listening attentively, the decision would be any different?" he asked. "This could be a Kabuki dance, where you get a situation where everyone has to sit there and pretend to listen because the decision has already been made."

Diamond, who has made a career representing adult businesses and winning precedent-setting cases, was nevertheless ecstatic.

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