Spotlight on Coastal Corruption v. Kinsey
| Decision Date | 24 November 2020 |
| Docket Number | D074673 |
| Citation | 271 Cal.Rptr.3d 867,57 Cal.App.5th 874 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SPOTLIGHT ON COASTAL CORRUPTION, Plaintiff and Respondent, v. Steve KINSEY et al., Defendants and Appellants. |
Xavier Becerra, Attorney General, Daniel A. Olivas, Assistant Attorney General, David G. Alderson, Supervising Deputy Attorney General, and Joel S. Jacobs, Deputy Attorney General, for Defendants and Appellants.
Briggs Law Corporation, Corey J. Briggs ; Higgs Fletcher & Mack, John Morris and Rachel E. Moffitt, San Diego, for Plaintiff and Respondent.
Defendants, who at the time of trial were current or former California Coastal Commissioners (Commissioners), appeal from a nearly $1 million judgment after the court found they violated statutes requiring disclosure of certain ex parte communications. The case turns on whether (1) plaintiff Spotlight on Coastal Corruption (Spotlight) has standing to pursue these claims under Public Resources Code 1 sections 30324 and 30327 ; and (2) the up to $30,000 penalty for "any" violation of the Coastal Act in section 30820, subdivision (a)(2) (hereafter, section 30820(a)(2)) applies to such ex parte disclosure violations.
Concluding that Spotlight lacks standing and that section 30820(a)(2) is inapplicable, we reverse with directions to enter judgment for Defendants.
The California Coastal Act of 1976 () governs land use planning for California's coastal zone. ( Yost v. Thomas (1984) 36 Cal.3d 561, 565, 205 Cal.Rptr. 801, 685 P.2d 1152.) Generally speaking, any person intending to develop land in the coastal zone must obtain a coastal development permit in addition to any other permit required by law. (§ 30600, subd. (a).) The Act is administered by the California Coastal Commission (Commission), a board comprised of 15 members, including 12 representatives of the public, who are appointed by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly. (§§ 30300-30301, 30301.5.)
For lawyers and judges rooted in ethical standards prohibiting ex parte communications, it is somewhat surprising that ex parte communications between a Commissioner and a person interested in a Commission matter is permissible. The Act defines an "ex parte communication" as "any oral or written communication between a member of the [C]ommission and an interested person, about a matter within the [C]ommission's jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or on the official record of the proceeding on the matter." (§ 30322, subd. (a).)
To ensure open decisionmaking in a system allowing private communications about pending matters, the Act provides that a Commissioner must "fully disclose[ ] and make[ ] public the ex parte communication by providing a full report of the communication to the [Commission's] executive director within seven days after the communication or, if the communication occurs within seven days of the next commission hearing, to the [C]ommission on the record of the proceeding at that hearing." ( § 30324, subd. (a).) Full disclosure includes but is not necessarily limited to all of the following: (1) the date, time, and location of the communication; (2) the identity of the person(s) (i) initiating and receiving the communication, (ii) on whose behalf the communication was made; and (iii) present during the communication; (3) a "complete, comprehensive description of the content of the ex parte communication, including a complete set of all text and graphic material that was part of the communication." ( § 30324, subd. (b)(1)(A)-(C).)
The executive director "shall place in the public record any report of an ex parte communication." ( §§ 30335, 30324, subd. (b)(2).) A communication ceases to be an ex parte communication when it is "fully disclosed and placed in the commission's official record." ( § 30324, subd. (c).)
A violation of section 30324 is punishable under section 30824, which provides:
A Commissioner is also prohibited from participating in a matter about which he or she has knowingly had an unreported ex parte communication. Section 30327, subdivision (a) provides that a Commissioner shall not "participate in making, or [in] any other way attempt to use his or her official position to influence a [C]ommission decision" about which he or she "has knowingly had an ex parte communication that has not been reported pursuant to [s]ection 30324."
Under section 30327, subdivision (b), a Commissioner who "knowingly violates" this section may be fined up to $7,500, "in addition to any other applicable penalty," including a civil fine imposed pursuant to [s]ection 30824. The court may also award prevailing party attorneys' fees. ( § 30327, subd. (b).)
Fines are deposited in the Violation Remediation account of the Coastal Conservancy Fund until appropriated. (§ 30823.)
The plaintiff in this case, Spotlight, is a lawyer-created entity. Spotlight has no employees and uses its trial lawyer's San Diego office as its own address. Spotlight has never appeared at a Commission hearing. Its founder, a former assistant San Diego city attorney, testified that Spotlight "exists to make sure ... that [C]ommissioners follow the Coastal Act with regard to ex parte communications ...." The trial court found that testimony credible.
Spotlight acknowledges that "this case does not center on any specific land-use decision by the Commission as a regulatory body ...." Spotlight "neither supports, opposes, nor otherwise seeks any particular outcome on a past or pending decision of the Commission as a body or agency."
Spotlight filed this action against five Commissioners: Steve Kinsey, Erik Howell, Martha McClure, Wendy Mitchell, and Mark Vargas (collectively, Defendants). The operative fourth amended complaint (Complaint) alleges a cause of action for "Violation of Laws Governing Ex Parte Communications," which Spotlight divided into three "counts." Count 1 alleges violations of section 30324. Spotlight alleged 70 such violations by Kinsey, 48 by Howell, 42 by McClure, 60 by Mitchell, and 75 by Vargas.
In count 2, Spotlight alleged that on the same number of occasions, each defendant knowingly attempted "to use his or her official position as a member of the Coastal Commission to influence a Commission decision about which each Defendant knowingly had an ex parte communication that was not reported in accordance with ... section 30324."
In count 3, Spotlight alleged that each violation of section 30324 and 30327, subdivision (a) is "separately punishable" under section 30820, subdivision (a)(2).2
Overall, Spotlight sought $45,000 in civil penalties per violation, and against each defendant sought:
Spotlight further alleged, "Any civil fine or civil liability must be paid by Defendants personally, with their private funds ...." After six days of testimony, the trial court concluded that Spotlight made these allegations "for in terrorem effect and perhaps for headlines."3
Thirteen witnesses testified, exceeding 1,500 pages of reporter's transcript. However, a detailed understanding of the evidence is unnecessary to resolve the appellate issues. The opening brief devotes only two pages to the facts, and the factual summary in Spotlight's brief is only one paragraph. Our summary is, therefore, similarly truncated.
Commissioner Mitchell ended her term in 2016. During her tenure, she relied on Commission staff to correctly process her disclosure forms, and her practice was to timely comply with the statutes. She testified that she never concealed any ex parte communication and attempted to comply with disclosure rules because it "behooved everyone that the information was disclosed ...." Mitchell conceded, however, that she was "far from perfect," explaining:
The court determined that Mitchell committed 22 violations out of the 240 alleged against her at trial, and imposed a $7,100 fine.
Commissioner McClure's term also ended by the time of trial. She admitted to submitting tardy disclosure forms and, on one occasion, she failed to sign the disclosure. After determining that McClure committed 14 violations out of the 168 asserted against her at trial, the court imposed a $2,600 fine.
Commissioner Vargas admitted making several tardy disclosures. The court determined that Vargas committed 25 of the 249 asserted violations. One violation was serious enough to warrant a $5,000 fine. In total, the court imposed a $13,600 fine.
Commissioner Howell acknowledged that one of his disclosure forms was undated, and another was unsigned. Out of the 165 violations that Spotlight asserted against Howell at trial, the court determined he committed 13, and imposed a $3,500 fine.
Commissioner Kinsey's term ended in 2017. His most serious violation was a failure to report an ex parte communication, after which he participated in the project's decision. The court...
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