By a MetNews Staff Writer
A judgment for civil fines against five persons who were members of the California Coastal Commission, which cumulatively came to nearly $1 million, was reversed yesterday by Div. One of the Fourth District Court of Appeal which held that the watchdog group that prosecuted the action had no standing to seek penalties in connection with ex parte communications, and that such violations do not come under a catch-all provision.
Justice Richard D. Huffman authored the opinion. It upsets a judgment by San Diego Superior Court Judge Timothy B. Taylor.
“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,” Huffman commented.
While the communications are permitted, he said, they must be reported by the commissioners in writing, pursuant to Public Resources Code §30324, and §30824 which provides for a fine “not to exceed seven thousand five hundred dollars ($7,500)” for each failure to observe that requirement, while §30327(b) authorizes a like fine for acting on a matter without having made the required report.
A complaint filed by Spotlight on Coastal Corruption alleged repeated violations by Commissioners Steve Kinsey, Erik Howell, Martha McClure, Wendy Mitchell, and Mark Vargas. (Of them, only Howell is a current commissioner.)
Lack of Standing
Fines imposed pursuant to those sections are invalid, Huffman said, because Spotlight had no standing. A “public interest” exception to the standing requirement was not met, he declared, simply by labeling the complaint as one seeking mandate and including a request for such a writ in the prayer, an inessential part of a complaint.
Huffman faulted Taylor for finding that he had discretion to confer standing. He said Taylor took the rule that “the court has discretion to deny public interest standing,” and “turned it on its head, and determined it had discretion to grant public interest standing in any case deemed necessary to provide an ‘effective remedy for violation of an important public interest statute.’ ”
That, Huffman wrote, “is not the law.”
Taylor also agreed with Spotlight that §30820(a)(2) applies. It provides:
“Civil liability may be imposed for any violation of this division other than that specified in paragraph (1) in an amount that shall not exceed thirty thousand dollars ($30,000).”
Most of the fines assessed by Taylor were pursuant to that provision.
Spotlight argued that it does apply, on its face, because the requirements as to ex parte disclosures are not included in paragraph (1). Huffman disagreed, saying:
“With respect to disclosure of ex parte communications, the statutory framework includes sections 30324, 30327, and 30824. These statutes specifically address nondisclosure of ex parte communications. If section 30820(a)(2) addresses ex parte nondisclosure violations, it does so only generally….
“Particular provisions of law ordinarily prevail over more general provisions.”
“Thus, although when read in isolation, the phrase ‘any violation’ in section 30820(a)(2) is unambiguous, the existence of sections 30324, 30327, and 30824 at the very least reasonably indicates that the Legislature intended to exclusively deal with that topic in those statutes, and not in the more general section 30820(a)(2).”
Taylor awarded Spotlight attorney fees, pursuant to a statutory authorization, in the amount of $929,046.57. The opinion instructs that on remand, an award of fees to the defendants, as prevailing parties, be considered.
The case is Spotlight on Coastal Corruption, D074673.
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