Opinion
No. 22 WAP 2020
09-22-2021
Stephen PASCAL and Chris Gates, Appellants v. CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT, and City of Pittsburgh and Northside Leadership Conference, Appellees
Timothy Jeffrey Leonard, Patricia L. McGrail, Maura Kathleen Perri, Ashley Puchalski, Esqs., McGrail & Associates, LLC, for Appellants. Stuart Crawford Gaul Jr., Esq., Gaul Legal, LLC, David J. Montgomery, Esq., Montgomery Law, LLC, for Appellee Northside Leadership Conference. Yvonne Schlosberg Hilton, John Hobart Miller IV, Esqs., City of Pittsburgh, Law Department, for Appellees City of Pittsburgh Zoning Board of Adjustment and City of Pittsburgh.
Timothy Jeffrey Leonard, Patricia L. McGrail, Maura Kathleen Perri, Ashley Puchalski, Esqs., McGrail & Associates, LLC, for Appellants.
Stuart Crawford Gaul Jr., Esq., Gaul Legal, LLC, David J. Montgomery, Esq., Montgomery Law, LLC, for Appellee Northside Leadership Conference.
Yvonne Schlosberg Hilton, John Hobart Miller IV, Esqs., City of Pittsburgh, Law Department, for Appellees City of Pittsburgh Zoning Board of Adjustment and City of Pittsburgh.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DOUGHERTY
We granted discretionary review to consider whether the Commonwealth Court erred in approving a decision granting zoning relief despite: 1) the timing of the decision and 2) the alleged conflict of interest of one member of a three-member panel of the Pittsburgh Zoning Board of Adjustment (ZBA). We affirm in part and reverse in part, and remand for a new hearing before a different three-member panel of the ZBA. I. Background
Appellee, Northside Leadership Conference (NLC), is a non-profit community development corporation that owns contiguous real property at 404-410 East Ohio Street in Pittsburgh situated in a local neighborhood commercial zoning district designated for mixed use. The property consists of several attached three-story commercial buildings forming a single structure that formerly housed retail space, a restaurant and two dwelling units. On March 18, 2018, NLC applied for variances and special exceptions necessary to, inter alia , maintain the retail space, remodel and reopen the restaurant and permit the construction of six additional dwelling units.
NLC sought to upgrade the property due to its deteriorated condition. It planned to create the new dwelling units on the second and third floors, maintain retail space on a portion of the first floor, resume restaurant use on the second and third floors, demolish and rebuild the existing rear portion of the second floor and add a new rear portion to the third floor, with both newly-built portions constructed entirely within the existing rear wall line. NLC additionally proposed to use an area consisting of 313 square-feet in the rear of the property as an additional ingress/egress point for tenants, deliveries and trash removal. Accordingly, NLC applied for: 1) a variance to allow a 2.66:1 floor-area ratio where Section 904.02.C of the Pittsburgh Zoning Code (Code) imposes a maximum 2:1 floor-area ratio; 2) a variance from the usual off-street loading space requirement (Section 914.10.A of the Code requires at least one off-street loading space for multi-unit residential floor areas up to 20,000 square feet); 3) a special exception for restaurant use (Section 911.02 of the Code requires a special exception for restaurant use in a local neighborhood commercial zoning district); 4) a special exception for off-site parking spaces (Section 914.07.G.1(a) of the Code contains a Use Table outlining the standards applicable to shared parking); and 5) a special exception waiving the residential compatibility standards for rear-yard setbacks (Section 916.02.A.7 of the Code requires a minimum setback of 15 feet for zoning lots that abut the interior side-yard of a residential zone).
On May 17, 2018, a three-member panel of the ZBA, Alice B. Mitinger (Chair), LaShawn Burton-Faulk, and John J. Richardson, conducted a hearing on NLC's applications. Appellants Stephen Pascal and Chris Gates attended the hearing and objected to NLC's applications. At the end of the meeting, Chair Mitinger stated the parties could submit additional findings of fact and conclusions of law for a period of up to two weeks after the hearing transcript became available. On June 12, 2018, the parties submitted written proposed findings of fact and conclusions of law, and on August 23, 2018, the ZBA issued its final decision granting the variance and special exception applications subject to several conditions not applicable here. Appellants filed an appeal in the court of common pleas. Among other things, appellants alleged the zoning decision should be overruled because it was not timely decided. The trial court affirmed without taking any additional evidence, determining the zoning decision was timely and proper.
Section 922.07.C of the Code, relating to special exception applications, and Section 922.09.D, relating to variance applications, provide that when the ZBA fails to render a zoning decision within forty-five days of the public hearing, "the decision shall be deemed to have been rendered in denial ... unless the applicant has agreed in writing or on the record to an extension of time." Pittsburgh Zoning Code §§ 922.07.C, 922.09.D.
Appellants then appealed to the Commonwealth Court. Significantly, appellants alleged for the first time that ZBA member Burton-Faulk, who voted to grant NLC's requested variances and special exceptions, was also a member of NLC's Board of Directors. Appellants alleged the zoning decision should be overturned because Burton-Faulk did not recuse herself despite her clear conflict of interest. Appellants also repeated their claim the ZBA decision was untimely. The Commonwealth Court affirmed. See Pascal v. Zoning Bd. of Adjustment , 496 C.D. 2019, 2020 WL 973340, at *1 (Pa. Cmwlth., Feb. 28, 2020) (unpublished memorandum). The panel held the zoning decision was timely even though it was not entered within forty-five days of the hearing because the record did not close until the ZBA received the parties’ proposed findings of fact and conclusions of law several weeks after the hearing; additionally, the decision was announced within forty-five days after several additional agreed upon extensions of time, and thus the ZBA complied with the time limit for rendering a zoning decision under the Code. See id. at *3.
The Commonwealth Court correctly concluded appellants had not waived the issue because they did not learn of the alleged conflict of interest until "[l]ong after the [ZBA] hearing concluded" and "the issue was raised at the first possible opportunity." Pascal v. Zoning Bd. of Adjustment , 496 C.D. 2019, 2020 WL 973340, at *4 n.8 (Pa. Cmwlth., Feb. 28, 2020) (unpublished memorandum).
The panel also held that although ZBA member Burton-Faulk may have had a conflict of interest, the conflict did not require reversal without evidence that the conflict " ‘controlled or unduly influenced the other members of the [ZBA] in any manner which would raise doubts as to the validity of their votes.’ " Id. at *4, quoting Borough of Youngsville v. Zoning Hearing Bd. of Youngsville , 69 Pa.Cmwlth. 282, 450 A.2d 1086, 1091 (1982) (emphasis and alteration in original).
Appellants sought allowance of appeal and we granted review of the following questions:
(1) Whether the Commonwealth Court erred in affirming the trial court's order upholding the grant [to NLC] of the zoning relief requested despite the conflict of interest of ZBA member Burton-Faulk?
(2) Whether the Commonwealth Court erred in affirming the trial court's order upholding the grant to [NLC] of the zoning relief requested where the ZBA failed to issue a written decision within forty-five (45) days of the public hearing and where applicant did not agree in writing or on the record to an extension of time within forty-five (45) days of the public hearing?
Pascal v. City of Pittsburgh Zoning Bd. of Adjustment, ––– Pa. ––––, 240 A.3d 104 (2020) (per curiam ). We further directed the parties to state their positions or stipulate if possible as to whether Burton-Faulk served on the NLC Board of Directors during the ZBA proceedings below. The parties submitted a joint stipulation confirming Burton-Faulk "was a board member of the Northside Leadership Conference from the time of the Zoning Board of Adjustment proceedings on May 17, 2018 until the date the Zoning Board of Adjustment rendered its decision on August 23, 2018." Stipulation of the Parties, 11/23/20.
II. Timeliness of ZBA Decision
We first consider the second question granted, as the timeliness of the ZBA decision impacts the validity of its order granting relief, and by extension, the propriety of the subsequent court decisions affirming that order, which are implicated in the present appeal to this Court. As the issue involves statutory interpretation, our standard of review is de novo and our scope of review is plenary and non-deferential. See Crown Castle N.G. E. LLC v. Pa. Pub. Utils. Comm'n, ––– Pa. ––––, 234 A.3d 665, 674 (2020). Appellants assert the August 23, 2018 decision of the ZBA granting NLC's zoning applications was filed too late — ninety-eight days after the April 12, 2018 hearing — in violation of the Code's provisions requiring that a decision be filed within forty-five days of the hearing. Appellants observe the Code mandates a zoning application be deemed denied if this forty-five-day period is exceeded and there has been no agreement in writing or on the record to an extension of time. See Appellants’ Brief at 13, citing PITTSBURGH ZONING CODE §§ 922.07.C, 922.09.D (for both variance and special exception requests, the ZBA "shall act" on an application "within forty-five (45) days of the [ZBA] hearing ... unless the applicant has agreed in writing or on the record to an extension of time"). Appellants recognize Section 923.02.C of the Code provides " ‘[t]he [ZBA] shall adopt and maintain rules of procedure not inconsistent with the provisions of this Code.’ " Id. at 17, quoting PITTSBURGH ZONING CODE § 923.02.C. Appellants also recognize the parties here agreed to comply with ZBA procedures allowing the postponement of a decision until forty-five days after the record was closed, but nevertheless insist that any ZBA procedural rule, whether agreed to by the parties or not, that permits the filing of a ZBA decision beyond forty-five days of the hearing is materially inconsistent with the Code provisions, which must be strictly construed. See id. , citing Relosky v. Sacco , 514 Pa. 339, 523 A.2d 1112, 1116 (1987) ("procedural provisions of zoning statutes must be rigidly adhered to"). Appellants thus claim the zoning applications should have been deemed denied and the lower tribunals erred in upholding the ZBA decision granting zoning relief.
In response, appellees observe the ZBA's website states its decision will issue within forty-five days after the record is closed. In addition, all parties were advised at the close of the hearing that they would be permitted an additional two weeks following the production of the hearing transcript to file proposed findings of fact and conclusions of law, at which time the record would be closed. See Pascal , 2020 WL 973340, at *3, citing R.R., 5/17/18 at 99. According to appellees, all parties agreed to this procedure announced at the hearing, as well as several extensions of time after the record was closed, and the ZBA decision issued thereafter was thus timely.
In pertinent part, the ZBA website in February 2020 explained:
In many cases, the record will be closed after the hearing has completed. For in-depth cases or appeals with considerable opposition, the ZBA may allow proposed Findings of Fact and Conclusions of Law to be submitted by each party. Typically, the ZBA allows two or three weeks after the hearing for these to be submitted, at which point the record will then be closed. After the record is closed, the ZBA will issue a decision within 45 days.
Pascal , 2020 WL 973340, at *2. Currently, the ZBA website provides:
After the record for a hearing is closed, the ZBA will issue a decision within 45 days. This decision is sent to the Applicant and all parties who testified at the hearing.
Usually, the ZBA will close the record at the end of a hearing. Occasionally, for complex cases, or projects with considerable community opposition, the ZBA will keep the record open after a hearing to allow submittal of additional evidence.
Department of City Planning: Zoning Board of Adjustment, PITTSBURGH, PA, http://pittsburghpa.gov/dcp/zba (last visited August 4, 2021).
There are three statutory provisions implicated here: 1) Section 922.07.C of the Code, which provides, in relevant part, that the ZBA shall hold a hearing on a special exception application, and "shall act" to approve or deny the application "within forty-five (45) days of the [ZBA] hearing." If the ZBA "fails to render its decision within the period required by this subsection, ... the decision shall be deemed to have been rendered in denial of the applicant unless the applicant has agreed in writing or on the record to an extension of time." PITTSBURGH ZONING CODE § 922.07.C (emphasis added); 2) Section 922.09.D of the Code which provides nearly identical language respecting a "variance application." PITTSBURGH ZONING CODE § 922.09.D; and, 3) Section 923.02.C of the Code which provides, "[t]he [ZBA] shall adopt and maintain rules of procedure not inconsistent with the provisions of this Code." PITTSBURGH ZONING CODE § 923.02.C (emphasis added).
These unambiguous provisions, when read together to give effect to them all, evince the intent of the drafters to allow an agreed-upon extension of time for creating the record at ZBA proceedings, before the ZBA's decision must be rendered. See 1 Pa.C.S. § 1921(a) (when engaging in statutory construction, court's duty is to give effect to legislature's intent and to give effect to all of statute's provisions); see also Matter of Private Sale of Prop. by Millcreek Twp. Sch. Dist. , 646 Pa. 339, 185 A.3d 282, 290-91 (2018) (best indication of legislative intent is plain language of statute). Moreover, the procedure posted on the ZBA website, stating the ZBA decision will be rendered within forty-five days after the record is closed is clearly aligned with the Code, which expressly permits an applicant to agree on the record to an extension of time. Here, the record shows that, at the conclusion of the hearing, all parties agreed to keep the record open until two weeks after the hearing transcript became available, so that they could draft their respective findings of fact and conclusions of law, and thus, the ZBA decision "due date" was extended at that time. See Pascal , 2020 WL 973340, at *5. Moreover, both lower tribunals correctly recognized that subsequent extensions of the decision deadline were requested and granted in writing, such that the August 23, 2018 final decision of the board was timely entered by virtue of those extension agreements. We therefore affirm the Commonwealth Court's decision on this issue.
III. Conflict of Interest
Having determined the ZBA decision was timely filed, we now consider appellants’ claim the Commonwealth Court erred in upholding the grant of zoning relief requested by NLC despite the conflict of interest of ZBA member Burton-Faulk. Appellants assert Pennsylvania law requires a governmental body charged with decision-making authority to avoid even the appearance of possible impropriety, and that actual harm caused by the conflict need not be established. See Appellants’ Brief at 7, citing Horn v. Twp. of Hilltown , 461 Pa. 745, 337 A.2d 858, 860 (1975) (zoning board is governmental decision-making body which must avoid appearance of possible prejudice; no actual harm necessary to show denial of due process). Appellants primarily rely on this Court's determination in Horn that " ‘[a] fair trial in a fair tribunal is a basic requirement of due process[;] ... [t]o this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.’ " Horn , 337 A.2d at 860, quoting Schlesinger Appeal , 404 Pa. 584, 172 A.2d 835, 840-41 (1961) (additional citations omitted). Moreover, appellants argue the panel's reliance on Youngsville to determine the conflict of interest here was not disqualifying ignored this Court's clear directive in Horn . Appellants maintain Burton-Faulk should have recused herself from deciding NLC's zoning applications because she simultaneously served as a board member of NLC, and thus had a conflict of interest resulting in possible unfair bias. Appellants observe Horn provides, " ‘our system of law has always endeavored to prevent even the probability of unfairness. To this end, no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.’ " Appellants’ Brief at 12 (emphasis omitted), quoting Horn , 337 A.2d at 860 (internal citation omitted).
Appellee ZBA maintains there is no evidence Burton-Faulk influenced the decision of her two colleagues. ZBA insists that, because its decision granting the variances and exceptions was unanimous, the decision should stand; specifically, appellee argues even if Burton-Faulk had been disqualified from the panel, the result of the proceedings would have been the same as the zoning applications would have been approved by a unanimous vote of two to zero. According to the ZBA, invalidation of the zoning decision would be necessary only if the conflicted member's participation had determined the outcome.
Appellee NLC concedes Burton-Faulk "should not have participated in the ZBA's consideration of [NLC's] application[s] ... in order to avoid any appearance of impropriety[.]" NLC Brief at 25-26. Nevertheless, NLC posits "any mistake here is harmless on the record of this action." Id. at 26. NLC observes that while this Court is not bound by Youngsville , the reasoning in that case is persuasive, and should control the outcome here. NLC contends that Youngsville directs the ZBA decision in this case was proper because members "Mitinger and Richardson were present [at] the May 17 hearing and both later voted to approve the application[s]." Id. at 27 (internal citation omitted). NLC emphasizes, "[a]ppellants have never suggested that Mitinger or Richardson should have recused [themselves] from voting on th[e] application[s,]" because there is simply "[n]o [e]vidence ... that Burton-Faulk somehow influenced the vote of either Mitinger or Richardson." Id. at 27, 29. NLC also relies on Riverwalk Casino, L.P. v. Pennsylvania Gaming Control Board , 592 Pa. 505, 926 A.2d 926 (2007), where this Court held gaming control board members who recused themselves from one class of gaming license applications due to connections to the licensing applicants were not ineligible to decide applications regarding other applicants; the Riverwalk Court noted the allegation that recused board members might exert control or influence over other board members was "mere speculation." Riverwalk Casino , 926 A.2d at 940. NLC observes appellants "have not taken any steps to develop a record" of Burton-Faulk's improper influence. NLC Brief at 31.
The crux of appellants’ claim is that the ZBA decision made under the cloud of Burton-Faulk's conflict of interest effected a denial of their due process rights. We have recognized that "[d]ue process principles apply to quasi-judicial or administrative proceedings," Kowenhoven v. Cty. of Allegheny , 587 Pa. 545, 901 A.2d 1003, 1009 (2006), and whether a due process violation has occurred raises a question of law for which this Court's standard of review is de novo and scope of review is plenary. See Glatfelter Pulpwood Co. v. Commonwealth , 619 Pa. 243, 61 A.3d 993, 998 (2013). We are guided by relevant precedent in this matter of first impression.
In Horn , appellants owned a quarry in Hilltown Township, Bucks County. The township passed a zoning ordinance prohibiting quarry operations in the area where appellants’ quarry was located. Appellants continued their quarry operations and the township issued a cease and desist order that appellants disregarded. Thereafter, the township filed a complaint in equity through its solicitor, Charles Wilson, seeking an injunction against appellants. After a series of hearings regarding the injunction, at which the township was represented by Wilson, the parties agreed the "matter should be submitted to the Zoning Hearing Board of Hilltown Township for a decision." Horn , 337 A.2d at 859. At the zoning hearing, Wilson served a dual role; he acted as the township solicitor and as the zoning board solicitor. Wilson "conducted the [hearing] and ruled on evidence presented by appellants and on objections made to the township's evidence presented by ... himself, when an objection was interposed by appellants." Id. "Thereafter, Mr. Wilson, as the zoning board's solicitor, advised the board in legal matters concerning appellants’ case." Id. This Court "granted allocatur to determine whether the above procedure was a denial of due process, absent a showing of actual harm to appellants." Id.
The Horn Court observed:
"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. ... This Court has said ... that every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law."
Id. at 860, quoting Schlesinger Appeal , 172 A.2d at 840-41 (internal quotations and citations omitted); cf. Williams v. Pennsylvania , 579 U.S. 1, 136 S.Ct. 1899, 1905-06, 195 L.Ed.2d 132 (2016) (recognizing "an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case. This objective risk of bias is reflected in the due process maxim that no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome." (internal quotation and citations omitted)).
In Dussia v. Barger , 466 Pa. 152, 351 A.2d 667 (1975), this Court again endorsed the principle that "no man is permitted to try cases where he has an interest in the outcome." 351 A.2d at 674 (internal quotation and citation omitted). The Dussia Court considered the alleged "unconstitutional commingling of functions" of the Commissioner of the Pennsylvania State Police Department, where the commissioner was charged with two duties: 1) to act in an investigatory and advisory capacity and determine if a disciplinary board should be convened to review court-martial recommendations; and 2) to make the ultimate substantive decision to recommend any individual police officer to a court-martial. Id. at 672-74. The Court observed, " ‘[t]hese types of commingling of functions of investigation or advocacy with the function of deciding are ... plainly undesirable.’ " Id. at 673, quoting Sung v. McGrath , 339 U.S. 33, 44, 70 S.Ct. 445, 94 L.Ed. 616 (1950). " ‘A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible.’ " Id. at 673, quoting McGrath , 339 U.S. at 44, 70 S.Ct. 445. Thus, the Dussia Court held that this "intermingling of functions" was "constitutionally prohibited" as a violation of due process. Id. at 674-75, citing Schlesinger Appeal , 172 A.2d at 841. This Court has held, in such cases, actual bias need not be established, as "[a]ny tribunal permitted by law to try cases and controversies must not only be unbiased but must avoid even the appearance of bias." Gardner v. Repasky , 434 Pa. 126, 252 A.2d 704, 706 (1969) (same individual should not have served on board seeking suspension of police officer and Civil Service Commission determining officer's suspension appeal).
Moreover, relevant case law instructs that actual bias need not be shown in a case where a decision-maker rules on a matter in which he or she has a personal interest. In Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), the United States Supreme Court considered whether Brent Benjamin, a justice of the West Virginia Supreme Court of Appeals, should have recused himself from considering a case involving an entity whose chief executive officer had contributed $3 million to political organizations supporting Benjamin's election. The High Court noted the salient question was not whether a jurist harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge or decision-maker in his position is likely to be neutral, or whether there is an unconstitutional "potential for bias." Id. at 881, 129 S.Ct. 2252. The Court held the instances that require recusal, as an objective matter, are those " ‘in which experience teaches that the probability of actual bias on the part of the judge or decision[-]maker is too high to be constitutionally tolerable.’ " Id. at 877, 129 S.Ct. 2252, quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). The Court recognized Justice Benjamin asserted he could fairly and impartially judge the merits of the underlying case, and did not question his subjective findings of impartiality and propriety, or determine whether there was actual bias. Id. at 882, 129 S.Ct. 2252. Instead, the Caperton Court determined "there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal." Id. at 886, 129 S.Ct. 2252 ; see also Mun. Publ'ns, Inc. v. Court of Common Pleas of Phila. Cty. , 507 Pa. 194, 489 A.2d 1286, 1289 (1985) (recusal required wherever there is substantial doubt as to jurist's ability to preside impartially). Accordingly, the High Court reversed and remanded for further proceedings. Caperton , 556 U.S. at 890, 129 S.Ct. 2252.
Notwithstanding the foregoing analogous precedent, the Commonwealth Court instead relied on its own decision in Youngsville to hold there was no due process concern here because there was no allegation or proof Burton-Faulk influenced the votes of the other ZBA members. In Youngsville , the appellant borough challenged its zoning board's decision to allow a nonconforming use of a twenty-seven-unit trailer park on the appellee's property. One of the issues on appeal was whether "the Board's decision was tainted because one of its members should have disqualified himself from participation in the decision[ ] ... [because] he was employed by the appellee to survey the land in question and he testified as a witness in support of the appellee's earlier attempt to amend the zoning ordinance applicable to the premise." Youngsville , 450 A.2d at 1090. The Commonwealth Court panel upheld the zoning decision despite the dual roles served by the zoning board member. The panel recognized "the fact that one of the Board members was employed to survey the property here concerned, coupled with his participation in an earlier proceeding as a witness in support of the appellee's proposed use, does raise a significant question as to his objectivity in this matter." Id. at 1091. However, the panel majority ultimately concluded reversal of the zoning decision was not necessary because "there is nothing in the record before us which indicates that this Board member actually conducted himself in a biased or prejudicial manner" and there was "no allegation that the member in question controlled or unduly influenced the other members of the Board in any manner which would raise doubts as to the validity of their votes." Id. (emphasis in original).
We reject the Commonwealth Court's view that Youngsville controls here. First, that case is distinguishable on its facts. The allegedly conflicted zoning board member in Youngsville had testified in support of the municipality's zoning ordinance that was later applied to a variance request considered in due course by the board. See id. at 1090. Here, the conflicted individual simultaneously served as a board member of the applicant and the zoning board tasked with deciding the applicant's request for variances and special exceptions. In any event, we disapprove of the reasoning in that split panel decision. Given the clear conflict of interest here — a conflict that created an appearance of impropriety conceded by the applicant itself — we cannot agree that the zoning decision should stand because there was no proof the other board members were influenced by that potential bias. Although the ZBA is not a court, it is nevertheless a governmental body charged with applying the law to zoning matters arising in its purview, and the principles of due process apply with the same force. See Kowenhoven , 901 A.2d at 1009 ("Due process principles apply to quasi-judicial or administrative proceedings."). As we recognized in Horn , an individual should not be permitted to try cases where she has an interest in the outcome, see 337 A.2d at 860, and as we stated in Gardner , actual bias need not be established because a tribunal "must not only be unbiased but must avoid even the appearance of bias," Gardner , 252 A.2d at 706 (internal quotation and citation omitted).
We therefore conclude that whether or not Burton-Faulk was actually biased in favor of the successful zoning applicant is not dispositive here. Indeed, her participation in ruling on the propriety of zoning applications brought by an organization on whose board she sat at all relevant times so clearly and obviously endangered the appearance of neutrality that her recusal was required under well-settled due process principles that disallow a person to be the judge of his or her own case or to try a matter in which he or she has an interest in the outcome. See Horn , 337 A.2d at 860 ; see also Dussia, 351 A.2d at 674. We hold the Commonwealth Court erred in rejecting appellants’ arguments on this issue and upholding the resulting tainted ZBA decision.
IV. Conclusion
Accordingly, we affirm the Commonwealth Court's order in part and reverse in part. We remand for a new hearing on the appellee NLC's zoning applications before a newly constituted panel of the ZBA.
Chief Justice Baer and Justices Saylor and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Todd and Justice Donohue join.
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT
I dissent from Part II of the Majority's opinion regarding the timeliness of the Pittsburgh Zoning Board of Appeal's ("ZBA") decision. I would reverse the Commonwealth Court on that basis because it is not this Court's job to rewrite, add, or modify statutory requirements in the Pittsburgh Zoning Code ("Code"). However, I join Part III of the Court's opinion regarding LaShawn Burton-Faulk's conflict of interest.
Zoning by Pittsburgh is not governed by the Municipalities Planning Code ("MPC"), 53 P.S. §§ 10101 -11201, because the MPC does not apply to cities like Pittsburgh. Id. §§ 10103, 10107. Instead, zoning by Pittsburgh is governed by provisions of the cities of the second class zoning statute, id. §§ 25051-25058, which empowers such cities to enact zoning ordinances. Id. § 25051; see also City of Pittsburgh v. Commonwealth , 468 Pa. 174, 360 A.2d 607, 610 (1976) ("Municipalities derive their power to enact zoning ordinances from specific grants by the Legislature.").
I.
Northside Leadership Conference ("NLC"), a non-profit community development corporation, sought to upgrade some buildings it owns in the East Allegheny neighborhood of Pittsburgh. These upgrades required several variances and special exceptions, for which the NLC applied to the ZBA in March 2018. On May 17, 2018, the ZBA held a hearing on the NLC's application. Stephen Pascal and Chris Gates (collectively, "Appellants") attended the hearing to oppose the NLC's requests. At the end of the hearing, the ZBA Chairperson stated that the parties could submit proposed findings of fact and conclusions of law for up to two weeks after the hearing transcript was available. On June 12, 2018, counsel for both parties filed their proposed findings of fact and conclusions of law.
On July 27, 2018, forty-five days after counsel submitted their proposed findings of fact, counsel for the NLC consented in writing to extend the time for the ZBA to reach a decision until at least August 9, 2018. The NLC's counsel agreed in writing to two additional extensions, from August 9 to August 16, and from August 16 to August 23. The ZBA ultimately granted the NLC's application on August 23, subject to certain conditions. Notably, ZBA member Burton-Faulk voted to grant the NLC's application even though she was also a member of the NLC's board of directors.
This fact was unknown during the pendency of the proceeding before the ZBA, and it was only a mere allegation on appeal to the lower courts. However, in granting allocatur , this Court directed the parties to stipulate, if possible, regarding Burton-Faulk's dual role during the ZBA proceeding. Pascal v. City of Pittsburgh Zoning Bd. of Adjustment, ––– Pa. ––––, 240 A.3d 104 (2020) (per curiam ). In response, the parties stipulated as follows: "LaShawn Burton-Faulk was a board member of the [NLC] from the time of the [ZBA] proceedings on May 17, 2018[,] until the date the [ZBA] rendered its decision on August 23, 2018." Appellants’ Br. Ex. C.
Appellants appealed the ZBA's decision to the Court of Common Pleas. Relevant to this appeal, Appellants argued that the ZBA's decision should be overturned because (1) it failed to issue the decision within forty-five days of the hearing as required by the Code and (2) Burton-Faulk's failure to recuse herself rendered the ZBA's decision void.
The trial court affirmed without taking additional evidence. It found that the ZBA's decision was timely because the NLC, pursuant to the Code, consented to all extensions of time. The trial court failed to discuss whether Burton-Faulk's alleged conflict of interest rendered the ZBA's decision invalid. Appellants timely appealed to the Commonwealth Court. They argued, among other things, that the ZBA's decision should be voided in light of Burton-Faulk's conflict of interest in the proceeding and the fact that the decision was untimely. In a unanimous memorandum, the Commonwealth Court affirmed. First, the court found that the ZBA's decision was timely––i.e. , that it was issued within forty-five days of when the record was closed––because the "ZBA clearly left the record open until two weeks after the hearing transcript became available." Moreover, before the forty-five days had elapsed, the NLC's counsel agreed in writing to extend the filing period of the ZBA's decision. Because the NLC timely agreed in writing to multiple extensions of time, a deemed denial was not mandated by the Code. Thus, according to the Commonwealth Court, the trial court did not err when it affirmed the ZBA's grant of zoning relief since the ZBA issued a timely written decision.
Pascal v. City of Pittsburgh Zoning Bd. of Adjustment , 496 CD 2019, 2020 WL 973340 (Pa. Cmwlth. Feb. 28, 2020).
Id. at *3.
Id.
Id. (citing Pittsburgh Zoning Code §§ 922.07.C, 922.09.D).
Second, the court held that, although Burton-Faulk may have had a conflict of interest in the NLC's application and failed to recuse herself from the hearing, her possible disqualification did not, in and of itself, require invalidation of the ZBA's decision. The court reiterated that reversal is not required without evidence that the conflict of interest " ‘controlled or unduly influenced the other members ... in any manner which would raise doubts as to the validity of their votes.’ " Thus, without evidence that Burton-Faulk controlled or unduly influenced the votes of the other ZBA members, Burton-Faulk's possible disqualification did not require reversal of the ZBA's decision.
Id. at *4 (quoting Borough of Youngsville v. Zoning Hearing Bd. of Youngsville , 69 Pa.Cmwlth. 282, 450 A.2d 1086, 1091 (1982) (emphasis in original)).
Appellants sought allowance of appeal in this Court. We granted review to consider the timeliness of the ZBA's decision and Burton-Faulk's conflict of interest.
II.
The Majority holds that the ZBA's decision was timely because the unambiguous provisions of the Code governing its decision deadlines, when read together, "evince the intent of the drafters to allow an agreed-upon extension of time for creating the record at ZBA proceedings, before the ZBA's decision must be rendered." The Majority also notes that "the procedure posted on the ZBA website, stating the ZBA decision will be rendered within 45 days after the record is closed, is clearly aligned with the Code, which expressly permits an applicant to agree on the record to an extension of time." Finally, because the parties implicitly acquiesced on the record at the close of the hearing "to keep the record open until two weeks after the hearing transcript became available, so that they could draft their respective findings of fact and conclusions of law," the Majority concludes that the clock did not start to run on the ZBA's decision until that later date.
Maj. Op. at 381.
Id.
Id.
Although courts occasionally defer to municipalities’ interpretations of their ordinances, "this principle applies where the precise meaning of the contested provisions is uncertain, and not where they are clear and explicit in their language." Thus, absent ambiguity, "procedural provisions of zoning statutes must be rigidly adhered to." Here, the Code provides:
Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh , 589 Pa. 71, 907 A.2d 494, 500 (2006).
Relosky v. Sacco , 514 Pa. 339, 523 A.2d 1112, 1116 (1987) ; accord 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
After the public hearing, the Board shall act ... within forty-five (45) days of the Board hearing . Where the Board fails to render its decision within the period required by this subsection ... the decision shall be deemed to have been rendered in denial of the application unless the applicant has agreed in writing or on the record to an extension of time.
Pittsburgh Zoning Code §§ 922.07.C, 922.09.D (emphasis added).
The Code also provides: "The Board shall adopt and maintain rules of procedure not inconsistent with the provisions of this Code."
Id. § 923.02.C.1.
Notwithstanding these provisions of the Code, the ZBA's website stated:
In many cases, the record will be closed after the hearing has completed. For in-depth cases or appeals with considerable opposition, the ZBA may allow proposed Findings of Fact and Conclusions of Law to be submitted by each party. Typically, the ZBA allows two or three weeks after the hearing for these to be submitted, at which point the record will then be closed.
After the record is closed, the ZBA will issue a decision within 45 days. The ZBA Chairperson, in accordance with this procedure, stated at the close of the hearing:
R.R. at 369a.
But we do want to have legal positions presented by any and all who want to, and we're going to give you two weeks from the transcript to do that.
So whenever the transcript is ready, we'll take two weeks after that, and then that is flexible, based on the transcript's availability ....
There's two counsel here who can exchange information without another. If there are extensions one way or another that are needed, we'll entertain those requests.
Notes of Testimony, 05/17/2018, at 48 (R.R. at 095a).
This announcement was greeted with silence from the parties, yet we know that the parties performed in accordance with the procedure outlined by the Chairperson. However, there was no agreement, either implicit or explicit, that leaving the record open would, contrary to the Code, delay the start of the forty-five day decision deadline.
Id.
See id.
It may be true, as the ZBA suggests, that leaving the record open for a time after a hearing to facilitate parties’ submissions makes "good practical sense." But this procedure delays the start of the forty-five day period in which the ZBA must act. As such, this contravenes the plain language of Sections 922.07.C and 922.09.D of the Code, which make no provision for the ZBA's preferred procedure. The Code's silence cannot be ignored. On the contrary, Sections 922.07.C and 922.09.D mandate that the ZBA issue a decision within forty-five days of the hearing , not the close of the record. Section 923.02.C.1 of the Code expressly forbids adoption by the ZBA of procedures that are inconsistent with the provisions of the Code. Because the Code identifies the date of the hearing as the pertinent date, whereas the ZBA's website identifies the date of the close of the record, the Code, per Section 923.02.C.1, must prevail over the inconsistent procedure on the ZBA's website.
See ZBA's Br. at 15.
See Sivick v. State Ethics Comm'n, ––– Pa. ––––, 238 A.3d 1250, 1264 (2020) ("[A]lthough one is admonished to listen attentively to what a statute says, one must also listen attentively to what it does not say.") (cleaned up).
Nonetheless, the Majority sanctions the ZBA's practice of issuing its decisions within forty-five days of the close of the record, thereby engrafting an exception to the timeliness requirement of Sections 922.07.C and 922.09.D under the guise of a plain language reading. This is impermissible. If the ZBA genuinely needs more leeway in issuing its decisions such that the forty-five day deadline starts to run when the record is closed and not at the end of the hearing, then the Code should be amended accordingly. However, this issue is properly addressed to the Pittsburgh City Council, not this Court.
See In re Fortieth Statewide Investigating Grand Jury , 649 Pa. 574, 197 A.3d 712, 721 (2018) ("[O]ur Court may not usurp the province of the legislature by rewriting [a statute] to add ... requirements that ... do not comport with the [statute] itself ....").
Properly calculated, the forty-five day period commenced after the hearing on May 17, 2018, and not the close of the record on June 12, 2018. Thus, the ZBA was required to issue its decision by July 2, 2018. Since no decision was issued on July 2, and the NLC's first agreement to an extension came three and one half weeks later, the ZBA's decision was untimely and the NLC's application should be deemed denied.
III.
While I depart from the Majority on the timeliness issue, I join the Majority with regard to Burton-Faulk's conflict of interest. One of the central tenets of our legal system is the right to a fair tribunal, without which the pursuit of all other rights would be a pantomime of justice. All the procedural and evidentiary safeguards of a fair trial mean nothing if the outcome is a fait accompli or irremediably tainted by some bias or prejudgment on the part of the decision-maker. This is precisely the dilemma Appellants faced once they learned of Burton-Faulk's conflict of interest.
Such a situation calls to mind Joseph K.’s ordeal:
There were dark hours ... in which you thought you had achieved nothing at all, in which it seemed to you that only the cases predestined from the start to succeed came to a good end, which they would have reached in any event without your help, while every one of the others was doomed to fail in spite of all your maneuvers, all your exertions, all the illusory little victories on which you plumed yourself.
Franz Kafka, The Trial 133 (Willa Muir & Edwin Muir trans., Everyman's Library 1992) (1925).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." This language has been interpreted to protect against, among other things, procedures so unfair that they offend "fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." That said, the process due in a given situation is a question without an easy answer. Due process "is not a technical conception with a fixed content unrelated to time, place and circumstance." Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Although amoeba-like in its contours, procedural due process does not yield to scrutiny under a microscope.
U.S. Const. amend. XIV, § 1.
Dowling v. United States , 493 U.S. 342, 353, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (cleaned up).
Joint Anti-Fascist Refugee Comm. v. McGrath , 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
Morrissey v. Brewer , 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Notwithstanding the many forms due process can take, one of the hallmarks of procedural due process is a "fair trial in a fair tribunal." This guarantee extends to administrative proceedings like the one before the ZBA here. The mechanism that ensures a fair tribunal is the recusal of a conflicted decision-maker. After all, it is axiomatic that "[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." However, "most matters relating to judicial disqualification do not rise to a constitutional level."
In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
See Withrow v. Larkin , 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ("[A] fair trial in a fair tribunal is a basic requirement of due process. This applies to administrative agencies which adjudicate as well as to courts.") (cleaned up).
James Madison , The Federalist No. 10 , in Writings 160, 162 (Jack N. Rakove ed., The Library of America 1999) (1787).
Caperton v. A.T. Massey Coal Co. , 556 U.S. 868, 876, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (cleaned up). This caveat identifies a significant tension within the law of recusal. As this Court has observed:
Due consideration should be given by [the judge] to the fact that the administration of justice should be beyond the appearance of unfairness. But while the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake; that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. It is of great importance to the administration of justice that such should not occur.
In re Crawford's Estate , 307 Pa. 102, 160 A. 585, 587 (1931). The competing values identified in Crawford's Estate suggest an impasse. If disqualification was no hurdle at all, needless delay and discontent would ensue as decision-makers were disqualified left and right. Conversely, if disqualification proved a herculean task, adjudications might be timely but unjust. The Constitution navigates this Scylla and Charybdis by taking a restrained view of disqualification. "The Due Process Clause demarks only the outer boundaries of judicial disqualifications." Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 828, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). Thus, state constitutions, statutes, and codes of conduct may provide more protection.
On one hand, the Due Process Clause encompasses the common-law rule that a decision-maker must recuse herself when she has a direct pecuniary interest in a case. Over the last century, however, the Supreme Court of the United States has gradually expanded the grounds for recusal far beyond what the common law required. The first inklings of a departure from the common law came in Tumey v. Ohio . In Tumey , state and local laws allowed the mayor of a town, who also served as the town's justice of the peace, to try cases involving violations of Ohio's Prohibition Act and to fine those convicted. Half of the money collected from the fines went to the town's treasury, and the mayor also received $12 for each conviction. The mayor and the town received nothing in the event of an acquittal. On appeal, the Supreme Court held that this scheme violated due process "because of [the mayor's] direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village." Despite the mayor's pecuniary interest, the Supreme Court based its holding on an objective, non-pecuniary recusal standard:
See generally John P. Frank, Disqualification of Judges , 56 Yale L.J. 605, 609-12 (1947) (discussing the common-law origins of judicial recusal).
273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The Supreme Court remarked that the due process violation in Tumey "was less than what would have been considered personal or direct at common law." Caperton , 556 U.S. at 877, 129 S.Ct. 2252.
Tumey , 273 U.S. at 535, 47 S.Ct. 437.
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.
Id. at 532.
The Supreme Court refined the holding of Tumey some years later in In re Murchison . There, a trial judge questioned two witnesses in an initial proceeding to determine whether criminal charges should be brought. In other words, the judge acted as a "one-man grand jury." One of the witnesses answered the judge's questions, but the judge found him untruthful and charged him with perjury. The other witness declined to answer, and the judge held him in contempt. The judge then tried and convicted both men in a second proceeding. The defendants appealed, and the Supreme Court set aside their convictions. Although the Court recognized that the recusal standard was imprecise, it nonetheless held that, "[h]aving been a part of that [one-man grand jury] process[,] a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused." Invoking James Madison's famous dictum, the Court set forth the following recusal standard:
Murchison , 349 U.S. at 137, 75 S.Ct. 623.
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.
Id. at 136, 75 S.Ct. 623.
The Court conceded that such a "stringent" rule may be over-inclusive, barring judges who bear no actual bias, but, "to perform its high function in the best way[,] justice must satisfy the appearance of justice."
Id. (cleaned up).
Similarly, in Mayberry v. Pennsylvania , the Supreme Court addressed whether a trial judge tasked with sentencing a defendant may also preside over the same defendant's criminal contempt charges for contemptuous conduct directed at the same trial judge. There, a pro se defendant engaged in "brazen efforts to denounce, insult, and slander the court and to paralyze the trial." Indeed, he lobbed "downright insults" against the trial judge and employed "tactics taken from street brawls." Accordingly, in addition to being sentenced on the underlying charges for which he was convicted, the judge also pronounced the defendant guilty of multiple instances of criminal contempt. On appeal, the Supreme Court acknowledged that not every attack on a judge disqualifies her from presiding, but noted that most of the attacks leveled against the judge were "highly personal aspersions, even ‘fighting words’—‘dirty sonofabitch,’ ‘dirty tyrannical old dog,’ ‘stumbling dog,’ and ‘fool.’ [The judge] was charged with running a Spanish Inquisition and told to ‘Go to hell’ and ‘Keep your mouth shut.’ " Given the severity of the defendant's insults, the Court found that they were "apt to strike at the most vulnerable and human qualities of a judge's temperament." "No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication." Consequently, the defendant's contempt charges should have been tried "before a judge other than the one reviled by the contemnor."
400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).
Id. at 462, 91 S.Ct. 499.
Id.
Id. at 466, 91 S.Ct. 499.
Id. (cleaned up).
Id . at 465, 91 S.Ct. 499.
Id. at 466, 91 S.Ct. 499.
The Supreme Court further cemented the link between due process and recusal in Aetna Life Insurance Co. v. Lavoie . In Lavoie , Justice Embry of the Alabama Supreme Court cast the deciding vote to uphold a punitive damages award against an insurance company for its bad-faith refusal to pay a claim. Meanwhile, Justice Embry was the lead plaintiff in a similar bad-faith refusal to pay lawsuit pending before Alabama's lower courts. Notably, Alabama law in this area was unsettled at the time. Consequently, when Justice Embry cast the deciding vote and authored the majority opinion, "he did not merely apply well-established law" but "quite possibly made new law." Moreover, Justice Embry and his colleagues in the majority refused to set aside as excessive a punitive damages award of $3.5 million, although the largest punitive award previously affirmed by the court was $100,000. Accordingly, Justice Embry's deciding vote "undoubtedly ‘raised the stakes'" for the insurance company in his own suit. His opinion "had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case." In this respect, Justice Embry had a "direct, personal, substantial, and pecuniary" interest in the outcome and essentially "acted as a judge in his own case." Thus, Justice Embry's participation violated due process.
Lavoie , 475 U.S. at 822, 106 S.Ct. 1580.
Id. at 823-24, 106 S.Ct. 1580.
Id. at 824, 106 S.Ct. 1580.
Id. (cleaned up).
Recently, in Williams v. Pennsylvania , the Supreme Court analyzed whether the participation of former Chief Justice Castille in this Court's review of Terrance Williams’ collateral appeal violated due process. As the District Attorney of Philadelphia, Chief Justice Castille had authorized his deputies to pursue the death penalty at Williams’ murder trial. Subsequently, as a member of this Court, he declined to recuse himself from Williams’ appeals. The Supreme Court determined that Chief Justice Castille's failure to recuse created "an impermissible risk of actual bias" due to his "significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." Simply put, the Court announced a narrow but clear-cut rule: a judge may not review those convictions in which she had a significant, personal role in securing as a prosecutor. Due process requires recusal in such circumstances because "the likelihood of bias on the part of the judge is too high to be constitutionally tolerable." This is true whether or not the judge cast the deciding vote as part of a multi-member body.
579 U.S. 1, 136 S. Ct. 1899, 195 L.Ed.2d 132 (2016).
Id. at 1905.
Id. at 1903 (cleaned up).
Id. at 1909 ("[A]n unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.").
In light of this survey of the decisional law regarding recusal and due process, it is most troubling that Burton-Faulk served simultaneously on the NLC's board of directors and as a member of the ZBA panel reviewing the NLC's application. Despite this blatant conflict of interest, Burton-Faulk failed to recuse herself. While her participation did not involve a direct pecuniary interest like those in Tumey and Lavoie , Burton-Faulk nonetheless commingled her adjudicatory function as a ZBA member reviewing the NLC's application with her vested interest in having the application approved as a member of the NLC's board of directors. Indeed, Burton-Faulk's vote to grant the NLC's application had the clear and immediate effect of facilitating the NLC's development project and enhancing the value of the subject properties. We can never know if Burton-Faulk harbored actual bias in deciding the NLC's application, but the Due Process Clause does not require such knowledge. Rather, Burton-Faulk's participation alone constitutes a fatal structural error that undermines the entire ZBA proceeding. Whether framed as "the probability of unfairness" or "the likelihood of bias," Burton-Faulk's conflict of interest is the kind that strikes at the most vulnerable and human qualities of a decision-maker's temperament. Just as the judge in Mayberry was unlikely "to maintain that calm detachment necessary for fair adjudication," Burton-Faulk likewise lacked the requisite impartiality to decide the NLC's application. It strains credulity to suggest otherwise given her significant, personal involvement in the NLC's affairs. Burton-Faulk likely had intimate knowledge of the case that unbalanced her ability to weigh the evidence and assess the strengths and weaknesses of the parties’ arguments. The possibility that such unbalancing occurred suffices to impugn her judgment. Accordingly, Burton-Faulk's dual role, based upon all objective and reasonable perceptions, tainted the ZBA proceeding with a constitutionally intolerable amount of potential bias.
Mayberry , 400 U.S. at 465, 91 S.Ct. 499.
Cf. Commonwealth v. Fears , 250 A.3d 1180, 1206 (Pa. 2021) (Opinion in Support of Reversal) ("Viewed objectively, a judge whose conduct suggests an impermissible potential for bias for against any party, whether due to pecuniary interests or other potential prejudices, must recuse from any case involving that party.").
Furthermore, it should have been obvious to the Commonwealth Court that its decision in Borough of Youngsville v. Zoning Hearing Board of Youngsville was no longer tenable post- Williams . Even one member of a multi-member judicial or quasi-judicial body can taint that entire body's decision. As the Supreme Court observed:
The deliberations of an appellate panel, as a general rule, are confidential. As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. ...
* * * *
A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part.
Williams , 136 S. Ct. at 1909.
One is reminded of the maxim about bad apples and bushels. Yet, as the Supreme Court notes, the decision-making process of a multi-member body is a black box. This secrecy, indispensable to proper adjudication, stymies any insight into the nature of the body's deliberations, such as learning whose argument carried the day and, thus, swayed the body as a whole. Therefore, requiring parties before the ZBA, or any other body, to show that a conflicted member "controlled or unduly influenced the other members ... in any manner which would raise doubts as to the validity of their votes," is irreconcilable with Williams . So long as courts are unwilling to open judicial and quasi-judicial deliberative processes to discovery, litigants would, as a practical matter, confront the near-impossible task of divining what undue influence, if any, a conflicted decision-maker exerted on another. Fortunately, the Due Process Clause does not require the kind of telepathy contemplated by the Youngsville court.
See id. ; see also Lavoie , 475 U.S. at 831, 106 S.Ct. 1580 (Brennan, J., concurring) ("[W]hile the influence of any single participant in [an appellate court's deliberative] process can never be measured with precision, experience teaches us that each member's involvement plays a part in shaping the court's ultimate disposition."); Arthur Selwyn Miller & D.S. Sastri, Secrecy and the Supreme Court: On the Need for Piercing the Red Velour Curtain , 22 Buff. L. Rev. 799, 803 (1973) ("Judges seldom reveal publicly why a major premise was chosen while other available premises were discarded. The unavoidable conclusion is that there is more to adjudication than what the judges choose to say, either in their opinions or in their extrajudicial utterances.").
Justice Frankfurter once wrote:
The secrecy that envelops the Court's work is not due to love of secrecy or want of responsible regard for the claims of a democratic society to know how it is governed. That the Supreme Court should not be amenable to the forces of publicity to which the Executive and the Congress are subjected is essential to the effective functioning of the Court.
Felix Frankfurter, Mr. Justice Roberts , 104 U. Pa. L. Rev. 311, 313 (1955) ; see also Williams , 136 S. Ct. at 1909 ("[O]ne purpose of judicial confidentiality is to assure jurists that they can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues.").
Youngsville , 450 A.2d at 1091 (emphasis in original).
Cf. Commonwealth v. Koehler, ––– Pa. ––––, 229 A.3d 915, 933-34 (2020) ("[T]he remedy for demonstrating that an appellate tribunal included a jurist with an unconstitutional likelihood of bias would be a new appeal to that tribunal without the participation of the partial jurist.").
We are told that the government of the United States is "a government of laws, and not of men." While Chief Justice Marshall's formulation of "the rule of law" remains as true today as it was more than two centuries ago, it is equally true to say that, then as now, laws do not write, enforce, or interpret themselves. These responsibilities fall to flesh-and-blood people, who are by no means immune to the same foibles that circulate in the general public. But what may be acceptable or harmless in a workaday setting can be fatal in the law if left unchecked. "Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself." Whether judicial or quasi-judicial, a decision-maker's position is a public trust, and, as with any trustee, they are "held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Therefore, it is incumbent upon all decision-makers to implement and adhere to the most rigorous recusal practices. Unfortunately, that probity was missing here.
Marbury v. Madison , 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
Williams , 136 S. Ct. at 1909 ; see also William Shakespeare, Measure for Measure act 2, sc. 2, ll. 213-14 ("Thieves for this robbery have authority / When judges steal themselves.").
Meinhard v. Salmon , 249 N.Y. 458, 164 N.E. 545, 546 (1928).
The umpire theory of decision-making so prevalent today has a certain analytical and rhetorical appeal. See generally Brett M. Kavanaugh, The Judge as Umpire: Ten Principles , 65 Cath. U. L. Rev. 683 (2016). But the sporting analogy suggests a mechanical process that ignores the fact that decision-makers "are incurably human and that their background and personality affect all their thinking and therefore their decisions." Jerome Frank, Are Judges Human? , 80 U. Pa. L. Rev. 17, 24 (1931). To that end, effective recusal practices require great humility on the decision-maker's part since "[b]ias is easy to attribute to others and difficult to discern in oneself." Williams , 136 S. Ct. at 1905. Thus, whenever a decision-maker determines that a situation warrants her recusal, it is a commendable display of the highest integrity and introspection.
Justice Todd and Justice Donohue join this concurring and dissenting opinion.