Champlin's Realty Associates v. Tikoian

WILLIAMS, C.J. (ret.),

concurring in part and dissenting in part.

I concur with my colleagues’ well-reasoned opinion insofar as it (1) affirms the trial justice’s authority to hold an eviden-tiary hearing pursuant to G.L.1956 § 42-35 — 15(f); (2) affirms the trial justice’s findings that Coastal Resources Management Council (CRMC) Chairman Michael Tikoi-an and subcommittee member Gerald Zar-rella were biased and should have been disqualified; and (3) reverses the trial justice’s finding that subcommittee Chairman Paul Lemont was biased and should have been disqualified.

With regard to my colleague Justice William P. Robinson’s eloquent and passionate dissent from our affirmance of the trial justice’s finding that Chairman Tikoi-an was biased, I agree with his principal argument that administrative adjudicators enjoy a presumption of honesty and integrity that should not easily be refuted. Where I diverge from my distinguished colleague, however, is his characterization of Chairman Tikoian’s threat as mere administrative “arm wrestling,” which, while inappropriate, did not amount to demonstrated bias. It is my view that Chairman Tikoian’s threat to prevent the reappointment of a CRMC member was, ipso facto, enough to disqualify him. For me, Chairman Tikoian’s threat was sufficiently im*461proper to rebut the presumption that he was acting in a neutral and impartial role as an adjudicator. Once Chairman Tikoian threatened a fellow subcommittee member in his campaign to gain support for the so-called “Goulet plan,” he ceased to function as an impartial trier of fact.

As for the Court’s decision to reverse the trial justice and remand the matter to the CRMC for consideration of the Goulet plan, I respectfully dissent. I would affirm the trial justice’s decision to reverse the CRMC. In my view, once the trial justice determined that the CRMC decision violated the “substantial rights” of Champlin’s, it was within her authority and discretion under § 42-35-15(g) to reverse the decision of the CRMC.

I also diverge from that portion of the majority’s opinion that suggests that our decision in Arnold, v. Lebel, 941 A.2d 813 (R.I.2007), requires the Superior Court to remand a case in which ex parte contacts are found to have occurred to the administrative agency in every instance. In my opinion, the trial justice’s determination that the CRMC decision was based upon unlawful procedure and that it was against the clear weight of the evidence was a sufficient basis for her to reverse the CRMC decision rather than remand the matter back to the agency for further consideration of the Goulet plan.

In any event, if reversal of the trial justice were, in fact, warranted, it is my opinion that this Court should remand the matter to the trial justice and not to the CRMC, for the purpose of considering the Goulet plan on the record and allowing the parties to examine the plan.

I

The Trial Justice’s Decision to Reverse the CRMC was Proper Under General Laws 1956 § 42-35-15(g)

As an initial matter, it is important to note that the trial justice held sixteen evi-dentiary hearings and one show-cause hearing, made extensive findings of fact, and concluded that the CRMC had prejudiced the rights of Champlin’s in its application for expansion. We are in no position to, nor should we, challenge those findings because our review of a Superior Court’s judgment of administrative proceedings is statutorily limited to questions of law. Section 42-35-16; Iselin v. Retirement Board of Employees’ Retirement System of Rhode Island, 943 A.2d 1045, 1048 (R.I.2008); Rossi v. Employees’ Retirement System of Rhode Island, 895 A.2d 106, 110 (R.I.2006). “We do not weigh the evidence that was before the trial justice, but merely examine the record to determine whether his or her decision was supported by competent evidence.” Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 805 (R.I.2000) (citing Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992)). Even given this required deference, however, I concur with the majority’s view that, in this case, the trial justice’s finding that subcommittee Chairman Lem-ont was biased was not supported by competent evidence as it was grounded in her reliance upon Mr. Lemont’s mental processes.

The trial justice’s fact-finding efforts in this case are commendable and largely indisputable. After holding a plethora of hearings, she found, inter alia, that: (1) certain CRMC members engaged in ex parte communications while pressing for the Goulet plan; (2) at least some CRMC members demonstrated bias in violation of their quasi-judicial role as administrative adjudicators; (3) Chairman Tikoian threatened another subcommittee member with the loss of his CRMC seat in an attempt to persuade him to vote in favor of the Goulet *462plan; and (4) the CRMC issued a decision that, in light of the evidence presented during the subcommittee hearings, was clearly erroneous.

Based upon these findings, the trial justice determined that the CRMC decision (1) violated constitutional and statutory provisions; (2) was based upon unlawful procedure; (3) was in excess of the agency’s authority; and (4) was clearly erroneous, based on the reliable, probative, and substantial evidence on the record. Once the trial justice made this determination, pursuant to § 42-35-15(g), she had the authority to: (1) reverse the CRMC decision; (2) remand the matter to the CRMC; (3) affirm the decision; or (4) modify the decision.

After making her findings of fact, the trial justice determined that the most appropriate resolution of the matter was to reverse the CRMC, rather than remand it with instructions to the CRMC to place the ex parte communications (the Goulet plan) on the record. Although her decision was, to some extent, based on her mistaken belief that our advisory opinion in the case of In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council), 961 A.2d 930 (R.I.2008), required the General Assembly to pass legislation before the CRMC would be able to reopen the matter, it primarily was grounded in her belief that further delay in the adjudication of Champlin’s application would be an injustice.

This determination by the trial justice was appropriate because both this Court and other jurisdictions have recognized that such an applicant is entitled to a decision from the administrative agency within a reasonable period. See Sakonnet Rogers, Inc. v. Coastal Resources Management Council, 536 A.2d 893, 897 (R.I.1988) (Sakonnet) (recognizing that petitioners have a right to have the adjudication of an administrative matter within a “reasonable period”); see also 2 Am.Jur.2d Administrative Law § 371 (2004) (administrative agency has an “affirmative duty * * * to act in a timely fashion”).

Although legislation was not, in fact, required for the CRMC to reopen the matter on remand, at the time the trial justice issued her decision six years had passed since Champlin’s filed its application, in 2003. So then, a remand to the CRMC for consideration of the Goulet plan would have exceeded the seven-year time period we found to be unacceptable in Sakonnet, 536 A.2d at 897. The trial justice’s decision to reverse, therefore, was based on this Court’s principle that any further delay in the adjudication of Champlin’s application would prejudice its right to a final adjudication of its petition “within a reasonable period.” Id.

My colleagues’ decision to reverse the trial justice is partially based on the principle that administrative matters generally must be completed by the administrative agency and not the courts. 3 Richard J. Pierce, Jr., Administrative Law Treatise § 18.1 (5th ed.2010) (most successful appeals of federal agency decisions result in remand back to the agency). Although I generally agree with my colleagues, I recognize that there are limited circumstances in which we have held that a court may order equitable and other relief when agency delays and procedural violations are found. See Easton’s Point Association, Inc. v. Coastal Resources Management Council, 559 A.2d 633, 636 (R.I.1989) (remand to the agency would be an injustice after trial justice exceeded scope of review, which unreasonably delayed adjudication of petitioner’s application); Sakonnet, 536 A.2d at 897 (remand to the agency would prejudice the substantial rights of the party to have its petition *463adjudicated within a “reasonable” time period). I also must acknowledge that it is incumbent upon the judicial system to devise a remedy that will do justice in consideration of the significant interests of the parties involved. See Easton’s Point Association, Inc., 559 A.2d at 636. This is such a case.

Other jurisdictions also have recognized this principle. See Middle Rio Grande Conservancy District v. Norton, 294 F.Bd 1220, 1280-31 (10th Cir.2002) (“unique circumstances” including, “massive delays”, and significant impact allow for court to order relief); Sierra Pacific Industries v. Lyng, 866 F.2d 1099, 1111 (9th Cir.1989) (when reviewing agency decision, court “may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action”) (quoting Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221 (1939)); N.A.A.C.P. v. Secretary of Housing & Urban Development, 817 F.2d 149, 160 (1st Cir.1987) (“A court, where it finds unlawful agency behavior, may tailor its remedy to the occasion”); Greene v. Babbitt, 943 F.Supp. 1278, 1287-88 (W.D.Wash.1996) (remand not required where court loses confidence in agency ability to render impartial and expeditious decision); Benten v. Kessler, 799 F.Supp. 281, 291 (E.D.N.Y. 1992) (if “administrative misuse of procedure has delayed relief,” the court is not limited to “mere remand”).

In Greene, 943 F.Supp. at 1288, the United States District Court for the Western District of Washington stated that, “when agency delays or violations of procedural requirements are so extreme that the court has no confidence in the agency’s ability to decide the matter expeditiously and fairly, it is not obligated to remand.” Rather, the court “may put an end to the matter by using its equitable powers to fashion an appropriate remedy.” Id. Furthermore, in Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 565 (D.C.Cir.1982) (PATCO), the United States Court of Appeals for the District of Columbia Circuit stated that because “the principal concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a judicial decision whether to vacate a voidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable discretion.”

In this case, the integrity of the administrative process was irrevocably tainted once a commissioner was threatened in an effort to gain support for the Goulet plan. The procedural integrity was even further thwarted when five CRMC members voted to reject the subcommittee recommendation based on ex parte evidence. The six year delay from when Champlin’s filed its application, along with the troubling events that occurred during the administrative proceeding, demonstrate to me that the decision by the trial justice was a most appropriate and equitable resolution of this matter.

Additionally, I find it difficult, if not impossible, to distinguish the facts of this case from our holding in Sakonnet, 536 A.2d at 897. There, the CRMC rejected the petitioner’s application to relocate his cottage to a vacant lot without making any findings of fact, a violation of § 42-35-12. Sakonnet, 536 A.2d at 896. This Court further stated in Sakonnet that an agency decision must be supported by factual findings, its interpretation of the pertinent law, and an application of the law to the facts. Id. In a noteworthy decision by this Court, we granted the petitioner’s application to relocate his cottage based on his right to have his petition adjudicated within a reasonable time period, when, at *464that point, the adjudication process had taken nearly seven years. Id.

My colleagues distinguish Sakonnet on the grounds that the significance of the petitioner’s application to relocate his cottage is of virtually no consequence, compared with the potential environmental impact of Champlin’s proposed expansion of its docks, and therefore, the CRMC is best equipped to adjudicate the matter. I do not disagree with the notion that Champ-lin’s proposed expansion is a matter of great magnitude. In fact, it is the very significance of this matter that gives me grave doubts that the CRMC will fairly and expeditiously adjudicate it upon this Court’s remand. My concerns are based on the trial justice’s findings that five CRMC members chose to support the not-on-the-record Goulet plan rather than reopen the hearings to allow the parties to address it. My doubts are deepened by Chairman Tikoian’s threatening actions towards another commission member. My position is not meant to indicate any diminution of my respect for the CRMC, as I recognize the arduous duties that it must perform. In this particular ease, however, the trial justice’s findings suggest to me that the CRMC has been compromised to such an extreme that it should not adjudicate this matter.

Finally, with respect to my colleagues’ implicit, but unstated, belief that the trial justice substituted her own judgment for that of the agency in violation of § 42-35-15(g), I do not see any evidence, whatsoever, that supports that conclusion. In the majority’s view, the replacement of the CRMC decision with that of the subcommittee recommendation was unlawful because it was not one of the options available to the trial justice. I believe, however, that it was. In my view, as stated supra, the trial justice had authority to reverse or modify the CRMC decision once she found that the CRMC decision was based upon an unlawful procedure. Whether the trial justice reversed the CRMC decision by simply granting Champlin’s petition outright or modified the CRMC decision by elevating the subcommittee recommendation, she was still well within her authority under § 42-35-15(g).

Moreover, the Superior Court record clearly shows that the trial justice went to great lengths to ensure that the outcome of this matter represented the judgment of the non-biased CRMC members. Instead of simply reversing the CRMC decision once she found that Champlin’s rights had been violated, which she was entitled to do, she subtracted the disqualified members’ votes based on the concept of judicial discretion that we endorsed in Birchwood Realty, Inc. v. Grant, 627 A.2d 827, 834 (R.I.1993) (announcing that trial justice has discretion in fashioning a remedy on agency appeals).47 This arithmetical remedy resulted in the adoption of the subcommittee recommendation by a vote of four to three.

Although I applaud her ingenuity in devising such a remedy, once the trial justice found that Champlin’s substantial rights had been prejudiced by unlawful agency procedure, she simply could have reversed the CRMC without an examination or subtraction of the votes. See Sakonnet, 536 *465A.2d at 897; see also Birchwood, 627 A.2d at 834.

II

Remand

A

Placing Ex Parte Communications on the Record in Compliance with Arnold

I disagree with the majority’s holding that the trial justice erred when she did not remand the case back to the CRMC after she found that certain members had engaged in ex parte communications. Although I agree that ex parte communications in administrative proceedings are prohibited by § 42-35-13 and that parties in agency proceedings must be given notice and an opportunity to be heard, I do not believe that our holding in Arnold, 941 A.2d at 821, impliedly or otherwise requires that the administrative record must be completed with ex parte communications in every case.

Here, the trial justice found that the CRMC had not only engaged in ex parte communications, but also that it had rendered a decision that was clearly erroneous based on the evidence in the record and that at least two CRMC members had demonstrated bias. Based on these findings, the trial justice had the authority to reverse the CRMC decision under § 42-35-15(g), as discussed supra. Because the trial justice had other grounds for reversing the CRMC, separate and apart from the fact that certain members had engaged in ex parte communications, it is my opinion that she was not compelled to remand to the CRMC to place those ex parte communications on the record.

Once the trial justice reversed the CRMC decision, a remand for the purpose of completing the record with the Goulet plan would only have served to further delay and prejudice the rights of Champlin’s. See Ratcliffe v. Coastal Resources Management Council, 584 A.2d 1107, 1111 (R.I.1991) (stating that remand would not serve justice because additional delay would be “intolerable”); see also Sakonnet, 536 A.2d at 897. Remand to the CRMC so that the ex parte communications (the Goulet plan) could be placed on the record would have been meaningless as the trial justice’s reversal of the CRMC decision effectively granted Champlin’s application for expansion. See Macera v. Cerra, 789 A.2d 890, 894-95 (R.I.2002) (agency remand not required when further fact-finding would serve no useful purpose and cause further delay).

It is my view, therefore, that when a remand to the administrative agency to complete the record with ex parte communications would serve no meaningful purpose, it is not required under our holding in Arnold.

B

This Court’s Power to Fashion a More Equitable Remedy

Finally, if reversal of the trial justice were warranted in this case, which I strongly believe it is not, it is my view that this Court should exercise its inherent power to devise a more equitable remedy. Given the length of delay in the adjudication of this matter and the improper conduct that was engaged in by certain CRMC members during the first proceeding, I believe it would be an injustice to instruct the trial justice to remand the matter back to the CRMC to place evidence of the Goulet plan on the record. Given this Court’s legal and equitable power to fashion an appropriate remedy, I would instead remand this matter to the trial justice so that she could hold a hearing for the limited purpose of considering *466the Goulet plan, and to allow the parties the opportunity to be heard with respect to the plan. See Moore v. Ballard, 914 A.2d 487, 489 (R.I.2007) (recognizing this Court has the “inherent power to fashion an appropriate remedy that would serve the ends of justice”) (quoting Vincent v. Musone, 574 A.2d 1234, 1235 (R.I.1990)).

Once the record has been completed, the trial justice should be the final arbiter on the expansion that Champlin’s has proposed because this Court has recognized that such consideration by the Superior Court is a continuation of the administrative process. See Ratcliffe, 584 A.2d at 1111 (granting petitioners’ application without remand to CRMC based on CRMC’s failure to comply with RIAPA and extreme delay); Salconnet, 536 A.2d at 897 (affirming trial justice’s remedy to reverse CRMC decision and grant petitioner’s application based on improper agency procedure and delay); see also § 42-35-15(g).

I believe that in this particular case the trial justice is best suited to render a just and expeditious decision given her extensive knowledge of the administrative and court record. At present, the CRMC consists of three new members who, on remand, would have to read the transcripts of the twenty-three subcommittee hearings held over a period of two years. In addition to that massive undertaking, it is likely that the testimony and cross-examination concerning the Goulet plan could be drawn out for years to come and cause the earlier subcommittee hearings to be reopened, creating further financial burdens on all parties in what has now evolved into a seven-year battle.

With respect to my colleagues’ concerns that a remand to the trial justice for consideration of the Goulet plan would deny the interested parties their right to appeal, I would note that those parties would have an avenue to review the trial justice’s decision through a petition for writ of certiora-ri to this Court. A remand to the trial justice would allow the interested parties and intervenors an opportunity to examine the evidence in support of the Goulet plan, which is, ironically, an opportunity which they were denied during the initial proceeding.48 In essence, the trial justice would simply be replacing the CRMC for the purposes of considering the Goulet plan. Upon entry of final judgment by the trial justice, the aggrieved party would then, if it so desired, be able to seek review of the trial court’s decision to this Court through a petition for writ of certio-rari.

In consideration of the patently unfair nature of the initial CRMC proceedings and this Court’s power to fashion an appropriate remedy in the interests of justice, the Superior Court would be the proper forum to adjudicate this matter both fairly and expeditiously. I therefore dissent from the majority’s decision to reverse the trial justice’s decision and the majority’s decision to remand the matter back to the CRMC.

Justice GOLDBERG did not participate.

. Although my colleagues declare that Birch-wood should be read narrowly to require a trial justice to either "affirm” or "remand" an agency decision on appeal, they disregard the fact that G.L.1956 § 42-35-15(g) explicitly allows for a trial justice to "reverse” or "modify” when the substantial rights of the party have been prejudiced. See § 42-35-15 (providing for Superior Court review of contested agency cases). As stated infra, the RIAPA permits a continuation of the administrative process in the Superior Court.

. It is important to note that the Goulet plan was not conceived nor proposed by the parties or the intervenors; rather, it was created and introduced by members of the CRMC after the subcommittee hearings had closed. The CRMC never reopened the hearings so that the parties could have an opportunity to examine the evidence supporting the Goulet plan.