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Friday, March 25, 2011

Evidence - "Because I said so" isn't enough

Evidence - "Because I said so" isn't enough
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the more frequent causes of court appeals of administrative decisions arises from the tendency of administrative decision makers to make decisions based on their experience and gut feelings rather than objective evidence. Somebody who has been in the business for a long time may come to believe that she or he knows what is going on and everyone else should just listen - ipse dixit in old Law Latin. But that's not due process. On her Law of the Land blog, Patty Salkin describes a recent Pennsylvania case where this happened in "PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof".

The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district. Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise’s application was subsequently denied. The trial court granted the application and the City appealed.The City argued on appeal that it had presented substantial evidence that the proposed strip club would cause harm to the health, safety and welfare of the community. The Court noted that the burden of persuasion as to health, safety and welfare concerns falls on the objector, in this case the City. The Court looked to the language in the ordinance and determined that the burden of persuasion had not expressly shifted to the applicant.

Instead, the Court noted that the applicant only had to show specific requirements while the City had the burden to show all general policy concerns and negative effects.

Marquise satisfied all of the required specific conditions set out in the Pittsburgh Code. The Court further noted that the City only presented speculative evidence of the possible harm that would be caused by granting the conditional use permit. Additionally, the City failed to present any evidence of potential health and safety impacts as well as evidence that the proposed strip club would cause a detrimental effect on traffic. The Court held that there was sufficient evidence to support the trial court’s decision.

I guess these cases are often about adult entertainment facilities because you have enough money on one side and enough moral outrage on the other to get the case to a published level. Speculation isn't evidence. Also, by not holding a hearing the City Council lost the benefit of judicial deference.

EMM

Randall comments: This is a two-way street as the Appellate Division indicated in Murane v Department of Educ. of the City of New York. In Murane the court noted that the employee’s contention that she received an unsatisfactory performance rating because the principal was biased against was "speculative and insufficient to establish bad faith." In other word, Murane was iewed by the court as ipse dixit* as she failed to present evidence sufficient to demonstrate bad faith on the part of the principal to support her allegation. The Murane decision is posted at: http://publicpersonnellaw.blogspot.com/2011/03/four-month-statute-of-limitations-for.html.

* Latin: He himself said it. An unsupported statement that rests solely on the authority of the individual who makes it.
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