No. 4176 Precedential Processed

In re Coleman

Louisiana Court of Appeal, First Circuit · Filed December 7, 1970 · 242 So. 2d 602

Also decided on this docket: La. Ct. App. 1st Cir., January 29, 1973 272 So. 2d 795; La. Ct. App. 1st Cir., March 20, 1956 86 So. 2d 212; La. Ct. App. 1st Cir., March 16, 1932 140 So. 510; La. Ct. App. 1st Cir., November 18, 1931 137 So. 613; La. Ct. App. 1st Cir., April 22, 1907 4 Teiss. 277

Cited by

Gebre v. City of New Orleans 177 So. 3d 723 La. Ct. App. 1st Cir. 2015
Central Metairie Civic Ass'n v. Parish of Jefferson 478 So. 2d 1298 La. Ct. App. 5th Cir. 1985
Gertler v. City of New Orleans 346 So. 2d 228 La. Ct. App. 4th Cir. 1977

Opinion text

LEMMON, Judge (dissenting). I disagree that the denial of all cross-examination can be dismissed as “harmless error.” The function of zoning board hearings is adjudicatory or quasi judicial, rather than legislative. While the rule of procedure and evidence of judicial proceedings do not have to be maintained, the hearing must be conducted in a manner which is fundamentally fair, or the constitutional guarantee of due process 1 will be abridged. Some authorities contend that these proceedings are not adversary, but consist more of fact finding sessions for policy determination. However, the proceedings in fact operate in an adversary manner, the contestants being the applicant and his objectors, the latter generally being the only persons who have sufficient interest to attend such proceedings. See 2 Rathkoff, Zoning and Planning, 43, at 17-20 (3rd Ed. 1966). In such proceedings where crucial property interests often are at stake, the failure to permit an applicant to cross-examine any testifying objector renders such a proceeding so fundamentally unfair as to violate procedural due process. 2 Cross-exami *606 nation is a fundamental device for the discovery of truth. I believe that constitutional error of this magnitude cannot be harmless error, since it is difficult for a reviewing court to be assured that the outcome would be the same if cross-examination were allowed. 3 In the present case all cross-examination was denied, not just that which was irrelevant or immaterial. The denial of all cross-examination, combined with the discretionary power of the trial court to deny introduction of additional evidence, 4 can deprive a property owner of his right to present his entire case at any level of the proceedings. I therefore dissent. . La.Const., Art. 1, § 6. . 2 Rathkoff, supra, 43 at 85 (Supp. 1969) ; Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A.2d 294 (1967). . See 1 Cooper, State Administrative Law at 404 (1st Ed. 1965); Town of Somerset v. Montgomery County Board of Appeals, supra. . LSA-R.S. ,33:4727.