By Christian Spesia, Joliet
A recent decision by the Second District Appellate Court in People ex rel. Klaeren v. Village of Lisle, No. 2-99-1256 (October 13, 2000) holds that statutory procedural requirements provide a right for cross-examination of witnesses in municipal zoning hearings. Even though Klaeren is a zoning case, the court stated in dicta that the same right to cross-examination would apply to hearings before the village board, i.e. hearings on annexation agreements, tax levy increases, etc. In order to ease the administrative burden of permitting cross-examination in municipal hearings, without unduly interfering with that right, the Klaeren court suggested a number of procedural devices to facilitate public hearings. This article will analyze the statutory procedural requirements relied on by the Klaeren Court and will examine the suggested procedural devices to ease the administrative burden of allowing cross-examination.1
Statutory procedural requirements for hearings
In reviewing the Illinois Municipal Code, the Klaeren court determined that public hearings before zoning authorities must allow for the cross-examination of persons presenting evidence, with the caveat that the testimony and cross-examination be “appropriate, relevant and reasonable.” The court specified that cross-examination is direct questioning of witnesses, not questions filtered through the public body. In reaching its conclusion that cross-examination is required, the Klaeren court determined that it would not consider the safeguards mandated by procedural due process because Illinois statutes resolved the issue. The court did note, however, that the issue of whether procedural due process requires a right of cross-examination at a zoning hearing is an area of law “around which no clear consensus has developed.”
The court’s statutory analysis focused on the meaning of the word “hearing” as used in sections 11-13-1.1, 11-13-5 and 11-13-11 of the Illinois Municipal Code, 65 ILCS 5/11-13-1.1, 11-13-5 and 11-13-11, because none of those sections specifically address the right of cross-examination in zoning hearings. In analyzing the meaning of the word “hearing,” the court found the case of E & E Hauling, Inc. v. County of DuPage, 77 Ill.App.3d 1017, 1021 (2d Dist. 1979), to be squarely on point. In E & E Hauling, the Second District examined the word “hearing” as used in the Counties Code then in effect and found that consistent with case precedent, a public hearing before any tribunal or body means the right to appear and give evidence and also the right to hear and examine the witnesses whose testimony is presented by opposing parties. The Klaeren court found it significant that while the legislature had amended the zoning provisions of the Counties Code construed in E & E Hauling, it had not amended or clarified the language requiring a hearing. The legislature is presumed to know the judicial construction that a statute has been given and when the legislature reenacts a statute without modification it is assumed to have intended the same effect. The Klaeren court concluded that a public hearing in the zoning provisions of the Municipal Code has the meaning adopted in the E & E Hauling case, and includes the right of cross-examination. Thus, the Village of Lisle’s denial of all cross-examination of witnesses in Klaeren violated the statutory procedural requirements of cross-examination in a public hearing.
Suggested procedural devices to ease administrative burden of cross-examination
After deciding that a right to cross-examination exists, the Klaeren court set out to “clarify” its ruling by suggesting the following procedural devices to ease the administrative burden of cross-examination, without unduly interfering with that right:
* the general requirement that all cross-examination be relevant and reasonable;
* the requirement within reasonable limits that people wishing to exercise right of cross-examination register prior to the hearing;
* the requirement that the person exercising the right of cross-examination allege some special interest beyond that of the general public. The municipality could ease the administrative burden by identifying those with a special interest with the adoption of a rule creating a presumption of a right of cross-examination for an identified class;
* the restriction on the right of cross-examination based on the subject matter of the testimony. Factors to be considered concerning the subject matter are: the complexity of the issue, whether the witness possesses special expertise, whether the testimony expresses fact or personal opinion or concerns disputed issues of fact and whether the testimony relates to the factors to be considered by the decision-maker. For example, members of the public expressing solely opinions about the project could be restricted from cross-examination. However, witnesses presenting relevant factual data would be subject to cross-examination.
The Klaeren decision marks a departure from the practice utilized by most plan commissions/zoning boards, particularly the practice used in smaller municipalities. It is clear from Klaeren that all cross-examination cannot be denied and that questions from the audience at a zoning hearing which are filtered through the zoning authority do not constitute “meaningful” cross-examination. What is unclear from Klaeren is the extent cross-examination can be “controlled” in order to ease the administrative burden identified by the court. In making rules for public hearings along the lines of the procedural devices suggested in Klaeren, it would be wise to adopt flexible standards that err on the side of greater leeway for the cross-examination of witnesses so as to not unduly interfere with the right of cross-examination.
1 Editor’s note: the Illinois Supreme Court in January, 2001, granted a petition for leave to appeal in this case.