Though former Del Norte County Supervisor Martha McClure has been ordered to pay a lesser penalty in a lawsuit against her and four of her former colleagues on the California Coastal Commission, she may be on the hook for more than $959,300 in attorneys fees and court costs.
McClure was one of five current and former members of the California Coastal Commission accused of violating a multitude of rules involving private communications with applicants who have projects before the commission.
The plaintiff, nonprofit organization Spotlight on Coastal Corruption, sought a total of about $22 million in fines with McClure receiving an individual fine of $3.15 million. In a final ruling filed June 12, 2018, San Diego County Superior Court Judge Timothy B. Taylor ordered the defendants to pay $57,100 to the Violation Remediation Account of the Coastal Conservancy Fund. Taylor fined McClure $2,600, according to the final order.
Governor Jerry Brown appointed McClure to the Coastal Commission in 2011. McClure served on the Commission until she lost her District 2 seat on the Del Norte County Board of Supervisors to Lori Cowan in 2016.
On Sept. 7, the judge ordered the plaintiffs to pay $929,046.57 in attorneys’ fees and $30,261.11 in court costs. According to Taylor’s ruling, the defendants Steve Kinsey, Erik Howell, Wendy Mitchell, Mark Vargas and McClure are “jointly and severally” liable for the attorneys’ fees.
This means that each defendant is responsible for the full $959,307.68 in attorneys’ fees and court costs, said Cory Briggs, the attorney who represented Spotlight on Coastal Corruption.
“Each one of them is individually responsible for the full amount of attorney fees and costs,” he said. “You can see the judge wrote for costs and attorneys’ fees, each of the defendants is jointly and severally liable. It means collectively and individually you owe the money.”
Asked if this means McClure, individually, is responsible for the full $959,307.68 in addition to her $2,600 penalty, Briggs responded Wednesday via email “exactly.”
The California Coastal Commission has filed an appeal for the penalties the defendants incurred in the lawsuit, spokeswoman Noaki Schwartz said Tuesday. The Coastal Commission has not filed an appeal for the attorneys’ fees and court costs, she said.
Asked for comment on how the attorneys’ fees and court costs would be paid, Schwartz directed the Triplicate to the California Attorney General’s office. Schwartz declined to provide further information, saying the Coastal Commission doesn’t comment on pending litigation.
In response to the Triplicate’s inquiry about how the attorneys’ fees and court costs are to be paid, a spokesperson with the Attorney General’s office also stated they cannot comment on ongoing litigation.
Asked about the attorneys’ fees and court costs, McClure said she and the other defendants were indemnified early on in the litigation process. However, follow up calls for information about an indemnification agreement weren’t returned.
On Monday, McClure said she was in a hospital in Honolulu recovering from emergency surgery to treat an ulcer.
“He was able to continue to run up costs,” McClure said of Briggs. “It will certainly jeopardize future people who want to sit on boards or any kind of state agency. It was almost two years into this horrible (lawsuit) and I can tell you right now I’m lying in a hospital in Honolulu from the ulcer that has been created by this, with emergency surgery. I’m getting out, but that’s the kind of ramifications this stuff has.”
In its complaint, Spotlight on Coastal Corruption accused McClure, former Coastal Commissioners Wendy Mitchell and Steve Kinsey, and current commissioners Mark Vargas and Erik Howell of violating California Public Resources Code Section 30324 by conducting ex parte communications without fully disclosing them and making them public within the time limits prescribed by law. Spotlight on Coastal Corruption also accused McClure, Mitchell, Kinsey, Vargas and Howell of violating Public Resources Code Section 30327 by using their official position as Coastal Commissioners to influence a commission decision about which they “knowingly had at least one ex parte communication that was not reported.”
Spotlight on Coastal Corruption alleged the defendants received training on the regulations governing ex parte communications and noted that each violation is subject to a civil fine not to exceed $7,500 per statute or $15,000 for both statutes, the Triplicate reported in May.
The plaintiff also alleged McClure and Mitchell violated Public Resources Code section 30327.5 (b) by accepting illegal gifts. In McClure’s case, this was a stay at the home of Don Schmitz, who represents clients, including U2 lead guitarist David Evans, with land development projects on the coast.
In May, when a tentative order from Taylor reduced McClure’s fine from $3.15 million to $4,000, McClure told the Triplicate she would give a verbal report at Coastal Commission meetings on ex parte communications she received and would include extra information in the report she gave to staff. She said she may have turned in her ex parte reports a day late, which constitutes a $100 fine. In other cases, some reports were missing a signature or a date stamp, which is another $100 fine each, McClure said.
In his ruling on motions for attorneys’ fees and court costs on Sept. 7, Taylor stated the plaintiff succeeded in its main litigation objective, which was to shed light on lax ex parte disclosure practices at the Coastal Commission. Taylor stated the plaintiff’s lawsuit was also likely an impetus for changes in ex parte procedures the commission implemented in 2016.
When it came to deciding on attorneys’ fees and court costs on behalf of the plaintiff, Taylor stated Briggs agreed to pursue the case on a contingent basis “since plaintiff lacked money to pay the fees.” The attorney for Spotlight on Coastal Corruption also received no interim funding to prosecute the case, Taylor’s ruling stated.
“Further, many of the issues in the case were novel and difficult, requiring specialized skill and expertise beyond the level expected in the San Diego community,” Taylor stated. “Moreover, a victory for the plaintiff was not certain and the lawsuit ‘occupied roughly 50 percent of (plaintiff’s attorneys’ time) during the last two years.’”
According to the ruling on motions for attorneys’ fees and court costs, Briggs’ rates are $550 an hour. His associates rates are $225 an hour, and the rates charged by the law clerk and paralegals are $175 per hour and $150 per hour, which Taylor stated were “reasonable under the circumstances,” according to the ruling.
In a Sept. 8 blogpost, Kathryn Burton, president of Spotlight on Coastal Corruption, said the organization was grateful for their “extraordinary public service” the group provided.
“Because the Attorney General’s office refused to enforce the law, SOCC had no choice but to act,” Burton said. “Standing up to unethical public officials is never easy, but it was the right thing to do. And when we saw the Attorney General’s office take the defendants’ side instead of the public’s side, this confirmed that SOCC had done the right thing.”
On Monday, McClure said before the Coastal Commission indemnified her and the other defendants, she was worried about losing her home. She said she didn’t agree to serve on the commission “to have that kind of thing happen.”
“I’m lying in this bed because of that lawsuit and I have had medical issues because of that lawsuit,” she said, adding that she would hopefully be cleared for a flight home on Wednesday. “People need to understand that kind of stuff because you don’t simply sue people. When you sue people you affect their entire being.”
Reach Jessica Cejnar at firstname.lastname@example.org .