Metropolitan News-Enterprise


Tuesday, December 31, 2002


Page 1


System of Choosing Coastal Commissioners Declared Unconstitutional

Fight to Overturn Ruling Is ‘Extremely Likely,’ Attorney General Lockyer Says


From Staff and Wire Service Reports


The California Coastal Commission’s appointment structure violates the state Constitution because the legislative leadership has broad discretion to appoint and remove members, the Third District Court of Appeal ruled yesterday.

The panel affirmed a Sacramento Superior Court judge’s ruling in favor of a nonprofit organization that sued after the commission blocked its bid to create an artificial reef off Newport Beach. It also lifted its previous stay of the that ruling.

The commission is now barred from ruling on building permits in the coastal zone, Sacramento attorney Ronald Zumbrun said.

“[The decision] doesn’t shut the commission down,” he explained. “It limits it to its proper role.”

Zumbrun represents the Marine Forests Society, which wanted to use old tires to create an artificial reef off Newport Beach to develop fish habitat.

Lockyer Statement

Attorney General Bill Lockyer, whose office represents the Coastal Commission, said he was “extremely likely” to seek review by the state Supreme Court and criticized the society’s project.

He said in a statement:

“The plaintiffs brought this lawsuit not to make sure the Commmission is appropriately constructed, but instead to overturn a decision which prevents them from pursuing a private business venture off California’s coast....The plaintiffs have not asked for a re-constituted commission, they want coastal protection decommissioned.”

The society argued the commission violates the state Constitution’s separation of powers clause because legislative leaders appoint eight of the 12 commissioners and can remove them at will.

Presiding Justice Arthur Scotland, writing for the Court of Appeal, agreed, saying the appointment power gave the Legislature the authority to declare the law and also to control the execution of that law.

“The flaw is that the unfettered power to remove the majority of the Commission’s voting members, and to replace them with others, if they act in a manner disfavored by the Senate Committee on Rules and the speaker of the Assembly makes those commission members subservient to the Legislature,” the jurist said.

Because the commission performs executive-branch duties, that breaches the separation of powers clause, the court said.

Coastal Commission spokeswoman Sarah Christie said the order would remove the core of the commission’s role. In areas without coastal land-use plans, the state commission issues building permits.

   The decision doesn’t do away with the Coastal Act, just hampers the body created to enforce the act, Christie said.

“The fact is, you need a coastal development permit to build in the coastal zone,” Christie said. “If you need a building permit, but you can’t get a permit because the commission can’t grant you one, then what?”

If the state appeals to the state Supreme Court, the order would probably again be stayed, she said. If the order wasn’t put on hold, there would “be chaos, but it would be temporary chaos,” while the state weighed its options.

Trial Court Ruling

The state could alter the appointment structure so the Legislature appoints fewer members, or make the appointments for a fixed term. The commission can issue rules and regulations as well as building permits and cease-and-desist orders and accept grants, appropriations and contributions, which Sacramento Superior Court Judge Charles Kobayashi said meant a legislatively controlled body was exercising legislative, judicial and executive powers.

Kobayashi stopped the commission from granting or denying permits, and from issuing cease and desist orders.

In upholding the order, Scotland distinguished Obrien v. Jones (2000) 23 Cal.4th 40, in which the high court upheld a law giving the governor, the Assembly Speaker, and the Senate Rules Committee the power to each appoint one hearing judge of the State Bar Court, and rejected the argument that this arrangement allows those authorities to interfere with the Supreme Court’s power over judicial discipline.

Unlike the Coastal Commission, Scotland reasoned, the appointing authorities’ power over the State Bar Court is extremely limited. The hearing judges, he noted, must be found qualified by a committee appointed by the Supreme Court before they can be finally selected, and their decisions are subject to independent review by the Review Department, whose members are appointed by the justices.

Most importantly, Scotland explained, the hearing judges are appointed for fixed terms, during which they are subject to removal for good cause by the Supreme Court, not by the appointing authorities. The process of selecting and removing coastal commissioners, he contrasted, contains “no safeguards and checks which would serve to ensure that the Commission is under the primary authority and supervision of the executive branch.”

The commission, which helps regulate development along California’s 1,100-mile coastline, was created by voters in 1972 and made permanent by the Legislature in 1976. The state’s Coastal Act provides for local governments to ultimately draft local coastal plans and take over the job of issuing coastal building permits, with the Coastal Commission serving as an appeals board.

But many coastal areas, including the city and county of Los Angeles and Malibu, have yet to complete portions of such programs. As a result, the commission has ended up as a surrogate local planning agency, presiding over more than 100,000 permits statewide ranging from major developments to homeowners’ requests to add a deck.

Malibu filed an amicus brief in support of the Marine Forests Society.

In 1999, the commission issued a cease-and-desist order against Marine Forests Society’s man-made coastal reef. The society sued, saying the commission didn’t have the authority to issue such orders because its voting members were appointed in an unconstitutional manner.

“We don’t need to violate the Constitution to make the environment better,” said Rodolphe Streichenberger, the French researcher who founded the society, based in Balboa Island.

The decisions on building permits should be left to the local governments, Streichenberger said. “Who can judge the local affairs but the local people?”

The case is Marine Forests Society v. California Coastal Commission, 02 S.O.S. 6436.


Copyright 2002, Metropolitan News Company