PETER GORDON et al., APPELLANTS, v. DISTRICT OF COLUMBIA et al., APPELLEES.
No. 20-CV-0568
DISTRICT OF COLUMBIA COURT OF APPEALS
February 15, 2024
Argued April 6, 2022
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Hon. Elizabeth C. Wingo, Hon. Steven M. Wellner & Hon. José M. López, Trial Judges)
Don Padou for appellants.
Grace Fuscoe, Assistant Attorney General at the time, for appellees. Karl A. Racine, Attorney General for the District of Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Carl J. Schifferle, Deputy Solicitor General, and Harrison M. Stark, Assistant Attorney General at the time, were on the brief for appellees.
Before EASTERLY and DEAHL, Associate Judges, and THOMPSON, Senior Judge.
EASTERLY, Associate Judge: Peter and John Gordon (“the Gordons”) sued the District of Columbia for claims related to the designation of their family home as a historic property by the Historic Preservation Review Board. The Superior Court dismissed some of the Gordons’ claims in an order partially granting the District’s motion to dismiss and subsequently dismissed the Gordons’ remaining claims in an order granting the District’s cross-motion for summary judgment. The Gordons appeal both orders. We hold that the Superior Court erred in granting summary judgment to the District on the Gordons’ claim that District employee Kim Williams’ entry into their home constituted common law trespass. We otherwise affirm the judgment of the Superior Court.
I. Facts and Procedural History
In 2014, brothers Peter and John Gordon inherited their childhood home, located at 3020 Albemarle Street, NW, in the Forest Hills neighborhood of the District. Intending to sell the house, the Gordons signed a listing agreement with Long & Foster Real Estate, Inc. and hired Adam Pollin as their listing agent. The listing agreement authorized Long & Foster to market the house by displaying the property online and to “allow key-entry showings and the installation of a lock box” for members of local realtor associations to access the house in order “to accompany prospective buyers, inspectors, . . . and other parties necessary for showings and inspecting the Property.” The Gordons requested that Mr. Pollin refrain from holding any open houses and limit the house showings to appointments only.
Concerned that the property was being sold as a development opportunity, a group of individuals undertook an effort to preserve the house in its current state by nominating it for historic landmark designation. Among these individuals was Sally Berk, a historic preservation consultant. Ms. Berk in particular made a vigorous but secretive push for historic designation of the Gordon house (and sought a four-figure payment for this work). To this end, Ms. Berk retained Denise Warner, a real
Ms. Berk and Ms. Warner entered the Gordon house on April 30, 2015, after Ms. Warner reached out to Mr. Pollin asking if he was available to meet Ms. Warner and “clients” for a “tour.” Mr. Pollin instructed that the group could let themselves in with the keys in the lockbox.
Soon after her first visit, Ms. Berk organized a second tour of the Gordon house, to which she invited, among others, Kim Williams, a staff member of the District’s Historic Preservation Office (“HPO”) and a longtime friend of Ms. Berk.2 In an email to a group that included Ms. Williams, Ms. Berk disclosed that she was “strategizing [the] rescue” of the Gordon house; she explained, “there’s a real estate agent (not the listing agent) in Forest Hills who wants to save it,” and that this “sympathetic-to-preservation agent” had made arrangements for the group to photograph the house for the landmark petition. Ms. Williams accepted Ms. Berk’s invitation to view the house, replying via email, “I would love to have a site visit.” (Ms. Williams later explained in her deposition that site visits are a precursor to writing a staff report, which is later submitted to the Historic Preservation Review Board (“HPRB”), the District agency responsible for reviewing and granting applications for historic landmark designation.)
In a separate email, Ms. Berk extended invitations to view the property to: Dave Maloney, the head of the HPO; Steve Callcott, Ms. Williams’s supervisor at the HPO; and Gretchen Pfaehler, the chairperson of the HPRB. Ms. Berk stated in her email that her “favorite house in Washington” was “threatened.”
On May 7, 2015, Ms. Warner met Ms. Berk and a group of her “friends and colleagues” at the Gordon home and let them in. Ms. Warner later testified at her deposition that she did not know any of Ms. Berk’s companions and, though they introduced themselves to her, she indicated that their identities were not a concern to her. Ms. Williams visited the home with Ms. Berk’s group, although she testified at her deposition that she arrived separately, “knocked on the door [of the house,] and was invited in.” Ms. Williams further testified that Ms. Warner, who Ms. Williams did not know, seemed to be expecting her and “introduced herself when [Ms. Williams] arrived.” Ms. Williams testified she was “pretty sure” that Ms. Warner was the person who let her into the Gordon house. When asked who the representative was who “could give consent on behalf of the [Gordons] to conduct a site visit” that day, Ms. Williams responded that she “assumed that the realtor was representing the owner . . . [because] that’s what realtors do.” According to Ms. Williams, once she entered the home, she “took a quick tour, went out to the deck,
On May 10, 2015, three days after Ms. Williams’s visit to the house, Ms. Warner introduced Ms. Berk to the Gordons’ realtor, Mr. Pollin, and informed him via email of Ms. Berk’s “interest[] in preparing the materials necessary to landmark the home . . . with the DC Historic Preservation Review Board.” In his email back to Ms. Warner, Mr. Pollin asked, “[s]o you brought her inside and took photos? And didn’t bring in a purchaser?” Ms. Warner responded, “I was told that a potential purchaser would be with Sally [Berk]” on May 7, 2015, but “[a]pparently, he could not make it and she tells me that we will reschedule with him.” On May 11, 2015, the Forest Hills Neighborhood Alliance submitted a petition, drafted partly by Ms. Berk, nominating the Gordon house to be designated a historic landmark. Around this same time, Ms. Berk was awarded a lifetime achievement award by the HPRB.
Weeks after submission of the Gordon petition to the HPRB, Ms. Berk invited HPRB Chairperson Ms. Pfaehler to her home in the Adirondacks, the same property Ms. Williams had visited, see supra, n.2. Ms. Pfaehler responded, “[t]hat would be lovely. Thank you for the gracious invitation.” In early July 2015, Ms. Berk informed Ms. Williams that she would like to recommend Ms. Williams’s husband, an architect, for a commission to design a museum. Ms. Williams replied, “I think he would consider it, and if not, he should, so I will talk to him,” and asked for more information on the project.
Soon after this email exchange, Ms. Williams submitted her staff report for the Gordon house, which contained input from Mr. Maloney, recommending that HPRB approve the historic designation petition. Days before the HPRB hearing, Ms. Berk texted Ms. Williams to thank her “for the positive staff report.” Ms. Berk followed up with another text asking Ms. Williams if her thank you note was “incriminating.”
On July 23, 2015, the HPRB held a two-hour hearing to consider the petition. Parties in favor of the designation, including Ms. Berk, spoke at the hearing. Ms. Williams also presented her case based on the staff report she had drafted. Peter Gordon spoke in opposition and brought an architect to substantively challenge the staff report. At the end of the hearing, the HPRB voted 3-2 to designate the Gordon house a historic landmark. All three of the board members who voted in favor indicated that their vote was based, at least in part, on the staff report. Ms. Pfaehler was one of the three who voted in favor of the designation.
Four days after the HPRB’s vote, Ms. Berk invited Ms. Williams to stay at her Adirondacks home in late August or September. Ms. Williams, expressing interest, indicated she and her husband were coordinating summer plans with their children’s travel, and responded, “great job and congrats at HPRB.” Ms. Berk then thanked Ms. Williams, saying “it wouldn’t have happened without you.” A few months later, Ms. Williams texted Ms. Berk asking that she “keep all emails to [her] on [a] professional level,” because the Gordons had “submitted a FOIA request.” Months after that, Ms. Berk wrote Ms. Williams an email with the subject line “BRIBE,” again offering Ms. Williams a week at the Adirondacks cabin.
Before the designation, the Gordons had received an offer to purchase their home for $1.55 million dollars, but that offer was withdrawn the day after the Historic Preservation designation. The same buyers later made the Gordons another offer for
Almost a year after the designation of their home as a historical landmark, the Gordons filed a complaint against the District and several named defendants,3 alleging twenty-two constitutional and common law claims and seeking damages and equitable relief. The District filed a motion to dismiss pursuant to
After the Superior Court issued its partial dismissal ruling, the Gordons filed an amended complaint. The Gordons then moved for summary judgment and the District cross-moved for the same relief. The court (Judge Wingo) granted the District’s motion for summary judgment on the remainder of the Gordons’ claims, ruling, in relevant part, that: (1) Ms. Williams was entitled to qualified immunity on the Gordons’
II. Analysis
Before this court, the Gordons raise challenges to the Superior Court’s May 17, 2017, ruling dismissing some of their claims and its March 11, 2019, ruling granting summary judgment as to the rest.
To survive a motion to dismiss, a plaintiff’s complaint “must set forth sufficient information to outline the legal elements of a viable claim for relief or to permit inferences to be drawn . . . that indicate that these elements exist.” Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1023 (D.C. 2007) (internal quotation marks omitted). We assume the truth of “well-pleaded factual allegations,” so long as they are sufficient “to raise a right to relief above the speculative level.” Bereston v. UHS of Delaware, Inc., 180 A.3d 95, 99 (D.C. 2018) (internal quotation marks omitted).
At the summary judgment stage, the burden is on the moving party to “demonstrate that there is no genuine issue of material fact, and that [they are] entitled to judgment as a matter of law.” Abdullah v. Roach, 668 A.2d 801, 804 (D.C. 1995). “Though we view the evidence in the light most favorable to the non-moving party, . . . a party opposing a motion for summary judgment must produce at least enough evidence to make out a prima facie case in support of his claim.” Kotsch v. District of Columbia, 924 A.2d 1040, 1045 (D.C. 2007).
Our review of both an order granting a motion to dismiss and an order granting summary judgment is de novo. Williams v. District of Columbia, 9 A.3d 484, 488 (D.C. 2010); Kotsch, 924 A.2d at 1044. Here, we analyze the Superior Court’s challenged rulings under the standards set forth above, grouping together the Gordons’ claims related to Ms. Williams’s entry into their home and their claims related to the designation of their home as a historic landmark.
A. Ms. Williams’s Entry into the Gordons’ Home
The Gordons challenge the Superior Court’s dismissal at the summary judgment stage of their claims that (1) Ms. Williams, by entering the Gordon home without consent or a warrant to search for evidence to support her staff report recommending that the home be designated a historic landmark, violated the Gordons’
1. The Gordons’ Claim that Ms. Williams Violated Their Rights under the Fourth Amendment
The Gordons argue that the Superior Court erred when it determined that Ms. Williams is entitled to qualified immunity on the Gordons’ claim that she violated their rights under the
Although the Superior Court stated that it was “not wholly persuaded that—under the particularized facts of this case—Williams’s conduct constitute[d] a
The court did not disagree with the Gordons’ broad propositions that (1) “the warrantless search of a home is per se unreasonable,”4 and (2) “the third-party
While the “lion’s share of
The Supreme Court has repeatedly affirmed that proposition. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 335-36 (1985) (acknowledging the “general applicability of the
The reason . . . an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the Amendment applies. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, . . . or on a whim, for no reason at all.
Id. at 69.6 The District concedes the point and acknowledges in its brief that “[t]he
Gordons are obviously correct that trespass by government officials into the home may violate the
The government argues instead that it is not clearly established that Ms. Warner lacked the apparent authority to permit Ms. Williams to enter the Gordons’ home. Citing Mullenix v. Luna, 577 U.S. 7, 12 (2015) for the proposition that “the ‘clearly established’ standard . . . demands a high ‘degree of specificity’” which is “especially important in the
can only prevail in a qualified immunity analysis if they can cite a case where a court has held that a “non-law enforcement employee viewing a publicly listed house to consider the property’s historical character, invited as part of an approved realtor tour” violated the homeowner’s
We must nonetheless uphold the Superior Court’s qualified immunity ruling not because of any lack of specificity in our current law but because of temporal considerations. In re J.F.S. was decided in 2023, years after Ms. Williams entered the Gordons’ home in 2015, and the Supreme Court has held that the “objective legal reasonableness” of an official’s action must be “assessed in light of the legal rules that were ‘clearly established’ at the time the action was taken.” Anderson, 483 U.S. at 639 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (“If the law at [the] time [the action occurred] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful”)). Accordingly, we affirm the Superior Court’s dismissal of the Gordons’
2. The Gordons’ Claim that the District and Mr. Maloney are Liable for Ms. Williams’s Alleged Fourth Amendment Violation
In connection with Ms. Williams’s entry into their home, the Gordons alleged that both the District and Mr. Maloney, in his individual capacity, are liable under
a) The Gordons’ Municipal Liability Claim against the District
To succeed on a
The Superior Court (Judge Wellner) dismissed the Gordons’ claim against the District at the
On appeal, the Gordons appear only to challenge the Superior Court‘s order granting the District‘s
The Gordons argue that it was “patently obvious” to the District that without adequate training or supervision, HPO employees “required” to “enter and search private property for information related to historic preservation” would likely violatethe
b) Mr. Maloney‘s Supervisory Liability
With respect to the Superior Court‘s determination that Mr. Maloney is entitled to qualified immunity because the Gordons failed to “show that [Mr.] Maloney‘s conduct violated their constitutional rights,” see Scales, 973 A.2d at 727, the Gordons contend that the court “did not view the evidence in the light most favorable to [them]; drew inferences in favor of Mr. Maloney; and weighed evidence in favor of Mr. Maloney.” We disagree and affirm the Superior Court‘s dismissal of the Gordons’
“[A] governmental officer may be held liable in damages for constitutional wrongs engendered by his failure to supervise or train subordinates adequately” if the plaintiff can show that (1) “he was responsible for supervising the wrongdoer,” (2) “a duty to instruct the subordinate to prevent constitutional harm arose from the surrounding circumstances,” and (3) “as a result of the official‘s failure to instruct, the plaintiff was harmed in the manner threatened.” Haynesworth v. Miller, 820 F.2d 1245, 1259, 1262 (D.C. Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). But like municipal liability, “[s]upervisory liability is limited under
Mr. Maloney‘s knowledge “that Ms. Williams [had] conducted ‘site visits’ of private properties” is not evidence of “past transgressions” that would suffice to put him on notice of possible unlawful searches by HPO employees, and thus, of the necessity of
3. The Gordons’ Claim that Ms. Williams Trespassed on Their Property
The Gordons claim that Ms. Williams‘s entry into their home constituted common law trespass. At summary judgment, the Superior Court concluded that because Ms. Williams was entitled to qualified immunity on the Gordons’
Qualified immunity is a doctrine of federal law; it shields government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson, 555 U.S. at 231 (quoting Harlow, 457 U.S. at 818). Qualified immunity does not shield government officials from liability for common law torts, like a claim of trespass. Scales, 973 A.2d at 730 n.5 (“[Q]ualifiedimmunity from
Unlike qualified immunity, where a court must consider whether a plaintiff‘s allegations constitute the violation of a constitutional right and whether that right was clearly established at the time of the violation, see supra Part II.A.1., when a government official seeks the protection of absolute official immunity against a common law claim, the court must consider whether (1) “the official acted within the ‘outer perimeter’ of his official duties,” and (2) “the particular government function at issue was ‘discretionary’ as opposed to ‘ministerial.‘” Moss v. Stockard, 580 A.2d 1011, 1020 (D.C. 1990). Determining whether an official acted within the outer perimeter of his duties generally “calls for a relatively straight-forward identification of the act giving rise to the suit and an analysis of the official‘s proper functions and duties.” Id. But “[d]istinguishing discretionary acts“—which cannot serve as the foundation for liability under tort law—“from ministerial ones“—which can—“involves a more complex analysis which,” importantly, “goes beyond determining simply whether the act entailed a choice among alternatives.” Id. Rather, “th[e] distinction turns on whether imposition of liability would more likelyencourage or inhibit conscientious, effective performance of the particular governmental function at issue.” District of Columbia v. Thompson, 570 A.2d 277, 296 (D.C. 1990),
To assist in the task of determining whether the government function at issue was discretionary or ministerial, a court should weigh the following policy factors: “(1) the nature of the injury, (2) the availability of alternate remedies, (3) the ability of the courts to judge fault without unduly invading the executive‘s function, and (4) the importance of protecting particular kinds of acts.” Moss, 580 A.2d at 1021 (citing Thompson, 570 A.2d at 297). This list, however, “is not exclusive; a court may use other factors it deems relevant.” Minch v. District of Columbia, 952 A.2d 929, 939 (D.C. 2008). Moreover, the court should “[v]iew[] the case from both the plaintiff‘s and the official‘s perspective[s]” and “evaluate whether the contribution to effective government of the immunity urged would or would not outweigh theharm to the plaintiff.” Moss, 580 A.2d at 1021. See also Minch, 952 A.2d at 939 (“The distinction between discretionary and ministerial actions by government officials is designed to assure fearless, vigorous, and effective decision-making . . . and to determine whether society‘s concern to shield the particular government function at issue from the disruptive effects of civil litigation requires subordinating the vindication of private injuries otherwise compensable at law.“) (internal quotation marks omitted).
The District concedes that qualified immunity, which it successfully urged the Superior Court to grant Ms. Williams, does not apply to the Gordons’ common-law trespass claim. But the District asserts that even though qualified immunity is “technically distinct,” from absolute official immunity, the two “overlap[] substantially,” such that “irrespective of how the Superior Court ‘labelled’ Ms. Williams‘s immunity, it correctly concluded that her reasonable, official conduct protected her from damages for trespass.” Based on our explication of the two immunity doctrines above, we disagree that they are only “technically distinct” and that the Superior Court‘s qualified immunity analysis can stand in for the requisite absolute official immunity analysis.
Even if we assume without deciding that conducting a site visit is within the outer perimeter of Ms. Williams‘s duties, the Superior Court engaged in none of the analysis above to discern whether conducting a site visit constitutes a discretionaryor ministerial act. The District likewise skips over this analysis in its brief and simply asserts that “an official acting within the scope of . . . her official duties is protected from suits for civil damages resulting from a ‘mistake of fact occurring in the exercise of [her] . . . discretion.‘” But, as explained above, if Ms. Williams‘s site visit was a ministerial act, it is not covered by absolute official immunity.12 The
District alternatively argues that
In sum, we conclude that the Superior Court erred when it granted summary judgment for the District on the Gordons’ common law trespass claim against Ms. Williams based on its determination that she was entitled to qualified immunity on their
B. The Historic Landmark Designation
In addition to challenging the Superior Court‘s rulings regarding their claims related to Ms. Williams‘s entry into their home, the Gordons challenge the court‘s rulings rejecting their claims related to the designation of their home as a historic landmark, and the process of that designation. Specifically, the Gordons argue the Superior Court erred in (1) dismissing pursuant to
1. Fifth Amendment Takings Clause
The Gordons alleged in their complaint that the designation of their home as a historic landmark was an unlawful “regulatory taking” because it caused “a decrease in the value of the house by $350,000.” See D.C. Pres. League v. Mayor‘s Agent for Historic Pres., 282 A.3d 578, 580 (D.C. 2022) (a partial regulatory taking“impedes the use of property without depriving the owner of all economically beneficial use“) (internal quotation marks omitted). The Superior Court ruled that the Gordons had failed to state a claim because they did not allege that there was no “reasonable alternative economic use” of the home once it was designated as a historic landmark, and cited 900 G St. Assocs. v. Dep‘t of Hous. & Cmty. Dev., 430 A.2d 1387 (D.C. 1981). On appeal, the Gordons argue that the court erred by relying on 900 G St. Associates, and applying what they construe to be a categorical rule for assessing the occurrence of a total taking, rather than the multi-factor inquiry for partial takings mandated by Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).13 We disagree.
In Penn Central, the Supreme Court identified three factors as having “particular significance” in the “essentially ad hoc, factual inquir[y]” to determine what constitutes a taking: (1) “[t]he economic impact of the regulation on the claimant“; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations“; and (3) “the character of the governmental action“—i.e., whether the action “can be characterized as a physical invasion by [the] government” or whether it “arises from some public program adjusting thebenefits and burdens of economic life to promote the common good.” 438 U.S. at 124. Subsequently, in 900 G Street Associates, this court considered the denial of a permit under the
Thus, we disagree with the Gordons’ argument that 900 G Street Associates misunderstood or departed from Penn Central‘s fact-specific inquiry, the aim of which is to determine “whether the government has gone too far through its regulations and arrogated property to itself without the payment of just compensation to the owner.” Embassy Real Est. Holdings, LLC v. District of Columbia, 944 A.2d 1036, 1052 (D.C. 2008) (explaining that “[t]here is no single test” for a partial taking and that the Penn Central factors merely describe “general considerations“) (emphasis added, internal quotation marks omitted). And welikewise disagree that the trial court‘s reliance on 900 G Street Associates constitutes reversible error in its takings analysis. Indeed, the court expressly considered both the fact that the Gordons had alleged the historic designation of their home reduced its value by $350,000, and the fact that they still had an offer to purchase the home, albeit at a reduced price—$1.2 million as opposed to $1.5 million. Lastly, we note that the Gordons have failed to explain what factor under the fact-specific Penn Central test the Superior Court should have considered but did not that would have made a difference in the court‘s analysis. For all of these reasons, we affirm the court‘s determination that the Gordons failed to allege facts sufficient to support a takings claim.
2. Procedural Due Process: Opportunity to Be Heard
The Gordons also challenge on appeal the Superior Court‘s dismissal of their claim that they were denied procedural due process because of the inadequacy of the “evidentiary safeguards” at the HPRB hearing. They highlight the fact that they were not given prehearing discovery, witnesses were not sworn in, and the HPRB neither allowed cross-examination nor barred the admission of hearsay. They assert the Superior Court failed to apply the multi-factor balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976),14 and instead relied on DonnellyAssocs. v. D.C. Historic Pres. Rev. Bd., 520 A.2d 270 (D.C. 1987), to conclude that they received adequate process.
As with their contention that the trial court failed to apply Penn Central to their takings claim, see supra, Part II.B.1., the Gordons mistake the trial court‘s decision to rely on this court‘s jurisprudence implicitly adopting Supreme Court jurisprudence with the trial court‘s failure to apply Supreme Court jurisprudence at all. Though the trial court did not analyze the facts under each prong of the Mathews balancing test, it did rely on a case—Donnelly—in which this court did analyze the facts of the case under each prong of the Mathews test before concluding that the HPRB‘s “ample procedures are . . . well-tailored in light of the decision to be made, to the capacities and circumstances of those who are to be heard.” Donnelly, 520 A.2d at 285 & 279-85 (internal quotation marks omitted). Given Donnelly‘s thorough review of the same HPRB rules and similar procedures at issue here, the trial court was not required to re-apply Mathews to the facts of this case. See id. at 282 (“The Mathews v. Eldridge test . . . is applied to the generality of cases; the fundamental fairness of a particular procedure does not turn on the result obtainedin any individual case.“) (internal quotation marks omitted). And because this court further held in Donnelly that HPRB historic designations are not “contested case[s],” and therefore do not entitle property owners “to a full trial-type hearing,” id. at 279, 285, we are not persuaded that
3. Procedural Due Process: Impartial Tribunal
Lastly, the Gordons challenge the Superior Court‘s dismissal at the summary judgment stage their claim that the District violated their due process rights when it failed to provide a neutral decision-maker during the historic designation process. The Superior Court determined that (1) Ms. Pfaehler‘s presentation of a lifetime achievement award to Ms. Berk and her failure to firmly reject Ms. Berk‘s “allegedbribe” offering Ms. Pfaehler free use of Ms. Berk‘s home in the Adirondacks did not allow an inference of “corruption,” (2) even if Ms. Williams “was herself biased or produced a biased report,” she “cannot be fairly characterized as a decision-maker,” and (3) in light of “the breadth of conflicting testimony considered by the Board” and the decision of two of the five Board members to vote against historic designation of the Gordon home, the evidence failed to show that the bias of Ms. Williams or her report had an “actual impact” on the Board. The Gordons argue that they were not required to show actual bias and that they pleaded sufficient evidence to show the appearance of bias. If Ms. Berk had been the decision-maker here, we would be inclined to agree. But we cannot, from one individual‘s seeming disregard of the boundaries between the personal and the professional, assume unconstitutional bias on the part of decision-makers without evidence that they were, or appeared to be, themselves responsive to such conduct.
“[A]n impartial decision maker is essential” to the due process right to adequate notice and the opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 271 (1970). This basic requirement “applies to administrative agencies which adjudicate as well as to courts.” Withrow v. Larkin, 421 U.S. 35, 46 (1975). See also Schweiker v. McClure, 456 U.S. 188, 195 (1982) (“As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities.“). “Fairness of course requires an absence ofactual bias . . . [b]ut our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955). To that end, the inquiry into bias “is an objective one. The [c]ourt asks not whether the [decisionmaker] is actually, subjectively biased, but whether the average [person] in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.‘” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009).
We begin with the alleged “corruption” of Ms. Pfaehler, because we agree with the Superior Court and the District that she is the only party accused of bias
Ms. Berk‘s singular offer must be put in context. Ms. Pfaehler and Ms. Berk did not have a relationship and had very little in the way of contact beyond that one offer. Ms. Pfaehler testified in her deposition that she had only ever seen Ms. Berk at events for preservation or government planning organizations; that aside from the May 2015 email invitation, there was no other invitation by Ms. Berk to a vacation house; that she had never had “detailed conversations” with Ms. Berk and had “never called her on the phone at home or had any other conversations with her“; thatMs. Berk had never talked to her about the Gordon home; that there had never been any exchange of work, payment, or gifts between her and Ms. Berk; that she did not “know anything about [Ms. Berk‘s] involvement with Kim Williams before the hearing“; and that it was her practice to seek legal advice about whether she should recuse herself from a hearing if she were to have a discussion with a designation applicant.
We do not agree with the Gordons’ assertion that “renewed offers of free use of the Berk vacation home” served as a “pecuniary motive” for Ms. Pfaehler to vote in favor of historic designation. As noted, there was only one offer and even if a pecuniary interest could be inferred from that, we believe it “too remote and insubstantial to violate the constitutional constraints applicable to” fair adjudicative procedure. Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980). See also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 n.3 (1986) (“[D]isqualification is not worked in cases where the [pecuniary] interest is so remote, trifling and insignificant that it may fairly be supposed to be incapable of affecting the judgment of or of influencing the conduct of an individual.“) (internal quotation marks omitted).
Nor can we construe, from Ms. Pfaehler‘s presentation of a lifetime achievement award to Ms. Berk on behalf of the HPRB, “bias or prejudice” that is “personal in nature” and “sufficient to raise a question in the mind of the average citizen about” her impartiality. Mayers v. Mayers, 908 A.2d 1182, 1190-91 (D.C.2006) (quoting Anderson v. United States, 754 A.2d 920, 925 (D.C. 2000)). There is nothing in the record to indicate that Ms. Pfaehler had any part in selecting Ms. Berk for the award, or any involvement beyond representing the Board at the ceremony in her capacity as Chair. Accordingly, we fail to discern Ms. Pfaehler‘s bias or the appearance thereof in favor of Ms. Berk.
The bulk of the Gordons’ lack-of-neutral-decision-maker argument focuses on Ms. Berk‘s reliance on Ms. Williams vis à vis a staff report recommending historic designation of the Gordon home—to secure a Board vote in favor of designating the Gordon home a historic landmark. But Ms. Williams was not a decision-maker. Therefore, in the absence of any evidence that her staff report posed a risk to Ms. Pfaehler and the HPRB of actual or apparent bias, Ms. Williams‘s own bias is insufficient to overcome the presumption of decision-makers’ honesty. See Withrow, 421 U.S. at 55 (explaining that board members “are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy
III. Conclusion
For the foregoing reasons, the judgments of the trial court are reversed in part and affirmed in part, and the case is remanded for proceedings consistent with this opinion.
So ordered.
Notes
First, given that arrests are, for absolute immunity purposes, recognized to be ministerial acts, Wade v. District of Columbia, 310 A.2d 857, 860 (D.C. 1973), this argument only underscores the importance of the inquiry that has yet to be done into the nature of Ms. Williams‘s site visit.
Second, it is true that this court has determined that when police officers are sued for common law claims in connection with an arrest (e.g., assault, battery, false arrest, and false imprisonment) they are unprotected by absolute immunity but may enjoy a qualified privilege if they acted reasonably and in good faith. See id. at 862. But this court has never extended that qualified privilege to claims of trespass on private property. Moreover, the inquiry for this good faith qualified privilege is partially subjective, whereas the inquiry for absolute immunity is entirely “objective in nature.” Moss, 580 A.2d at 1020 n.18. See Scales, 973 A.2d at 730 (explaining that “the test for qualified privilege in an assault and battery suit is both subjective and objective: the officer must subjectively believe that he or she used no more force than necessary” and “the officer‘s judgment is compared to that of a hypothetical reasonable police officer placed in the same situation“). For these reasons, the “closely related . . . underpinnings between the defense of qualified privilege against common law tort claims and qualified immunity from constitutional claims” that this court observed in Kotsch, 924 A.2d at 1047 n.7, are limited to those torts associated with arrest and irrelevant to this court‘s assessment of whether Ms. Williams is absolutely immune from suit on a theory of common law trespass under the analysis set forth above.