QUEASY JUDICIAL IN HOCO
(EDITS noted - after watching yet another episode of the Hickory Ridge sitcom).
Due to the pandemic, online environments are becoming commonplace, and most are moving along admirably; however, some hearings should not be done in a virtual format. Civic groups including The People’s Voice, The Howard County Citizens Assn, and the Howard County Smarter Growth Alliance under Preservation MD have expressed concerns regarding problems with “quasi-judicial hearings”(QJHs) being held online.
What is a QJH? The reason they are “quasi” is that the Board has to make a decision that has some legal finding as to rules or criteria being met, versus just approving a project or not. This is combined with the public being able to give input, outside of just being either side’s witnesses. This combination type hearing is "Quasi" (part) Judicial, part like a trial, partly not.
Unfortunately, many QJHs contain contentious issues and often include a lot of public input. We need to preserve the ability to gather in person as a show of visual support, and not eliminate people from participating who do not have access to updated computer equipment.
There have been technical difficulties in virtual County work lately, where people could not login to participate, or once connected to the proceeding, could not be heard (even Board/Council members). In QJHs, one cannot readily see documents that are in evidence, or refer to them or show them to witnesses during the hearing. It seems that these difficulties could easily create appeal issues. EDIT - The Zoning Board has improved the process of entering and referring to documents, although it is still much harder to see and read them than in person.
The State has closed courts for months now. They have realized the difficulty in providing due process in a virtual format. Even with the courts now phasing opening, they are not scheduling civil (non-criminal) matters until September 2020. We should not be conducting QJHs when it has been deemed inappropriate to be conducting judicial ones.
In reviewing why these hearings are problematic to hold virtually, and having just watched some, I am reminded of another very frustrating issue about them.
At a hearing that is not a QJH, people sign up to testify for a few minutes to support or oppose a land use plan or regulation change. They might be asked follow-up questions by Board/Council members, but that is the extent of their testimony. At QJHs, the trial-like procedures cause confusion and contention. When the public speaks at QJH, they are not timed, but are subject to cross-examination by the attorney for those seeking a change from the County (the petitioner). This cross-examination can get downright nasty, quashing community input.
The decision makers at a QJH cannot hear or read any communication about the QJH outside the hearing itself. That is called “ex parte” communication (outside the hearing), and is not allowed. Thus, public input can only be had by being subjected to cross-examination. To put it mildly, QJHs are QUEASY to watch. The extreme badgering of witnesses has created a disturbing atmosphere. It is the duty of these boards to protect public input. That is not happening.
County Boards have Rules of Procedure, and the various entities that conduct QJHs have specific requirements regarding cross-examination. For example, here is an excerpt of the Rules of Procedure for the Howard County Zoning Board:
"Conduct of cross examinations. Questions on cross-examination by petitioner, zoning counsel and protestants shall be brief, shall pertain only to statements made by the witness, shall be interrogatory in nature and not argumentative; questions shall not be preceded by statements nor shall they contain allusions to personality or motives. If the Chairperson shall rule the question out of order or objectionable, it shall be the duty of the person asking it to withdraw the question. In the discretion of the Chairperson, questions by protestants on cross-examination shall be put to the witness by the zoning counsel."
In a recent Hickory Ridge QJH, I believe I saw every single rule in the above paragraph violated, multiple times in the fraction of the whole hearing that I saw.
Here's an idea. The public is muted until they have the floor in the virtual format. How about anyone, including an attorney, who is interrupting the Chair, be muted. The Chair should not have to beg to be heard for minutes at a time. It would be hard to complain about being silenced if the reason was you would not stop breaking a procedural rule that in an actual court room would have you in contempt.
EDIT - Zoning Board members Walsh and Jung again tried to stop the Hickory Ridge QJH from continuing where it had started prior to the pandemic. The developer's case was held live and the entire opposition case is being made to go virtual. Cutting this particular procedure in half with methods of hearing is particularly inappropriate. There are due process problems with holding these hearings virtually, but it is even more inappropriate to expect ONE side to deal with these issues and not the other. At the start of the most recent Hickory Ridge hearing continuance, Walsh and Jung attempted again to stop. You cannot make this stuff up folks. WHILE Zoning Board member Rigby was explaining why due process was accommodated because you can see and hear, etc., her mic went out for a bit. WHILE Zoning Board member Jung was discussing her belief that technical problems were a significant factor, her video went out.
Zoning Board Chair Dr. Opel Jones presented an example that even in a live hearing, an attendee could have a transportation issue and miss the hearing, so going virtual with its recognized possible problems was no different. I beg to differ on this analysis. Sure, all kinds of problems can occur to make one miss a hearing. These are not problems caused by the holder of the hearing. Alternatives will often exist that someone chooses or is able or not able to employ; however, the holder of the meeting being the source of the problems (technical issues) makes the provision of due process an issue, so comparisons to outside disturbances are not relevant.
One point not previously made, regarding due process (especially when only applied to one side going virtual) is that one's train of thought is constantly interrupted. Oops, I was muted; oh wait a sec because we cannot see or hear someone, adjustments are needed; can you repeat yourself there is so much feedback; just a moment (for any number of reasons someone's personal space is creating an interruption). It is understandable that those at home may have someone in need of a moment's attention; however, to ignore the fact that there are a large number of interruptions in a judicial type setting is extraordinary to watch, especially as applied to only one side of a case.
Our county policies and general plan enable and encourage public input. Enforcement is important. It is lengthy and frustrating. These hearings go on for long hours over many days. Having to call out rule violations every two minutes must be very exhausting. I thank all involved in having to wrangle with these issues, and ask for patience to keep the rules followed the entire time; however, one cannot assure equal opportunity to due process in these hearings, and especially not when given only to one side.