S.C. to Review Constitutionality of Coastal Commission Makeup

Thursday, April 10, 2003

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S.C. to Review Constitutionality of Coastal Commission Makeup

By KENNETH OFGANG, Staff Writer/Appellate Courts

The State Supreme Court agreed unanimously yesterday to review a Third District Court of Appeal decision invalidating the California Coastal Commission’s appointment structure.

Acting at their weekly conference, the justices said they would hear the commission’s appeal from the Dec. 31 ruling in Marine Forests Society v. California Coastal Com., 104 Cal.App.4th 1232.

The Court of Appeal 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. The Marine Forests Society wants to use old tires to create the reef in order to develop fish habitat.

The panel held that in allowing the legislative leadership to appoint and remove eight of the 12 commissioners at will, the Legislature violated the state Constitution’s separation of powers.

In seeking review, Attorney General Bill Lockyer said the decision would not only prevent the commission from denying permits for building in the coastal zone, contrary to the intent of the 1972 initiative that created the commission, but would open past commission rulings to challenge.

About 100,000 past decisions could be affected, the Associated Press reported.

“It’s an important question that needs to be resolved,” Tom Dresslar, a spokesman for Lockyer, told the AP. “We don’t think the holding of the court of appeal should be applied to past decisions.”

Gov. Gray Davis responded to the Court of Appeal decision by calling a special legislative decision, which enacted AB2X 1.

The legislation, which is effective next month, replaces the current legislative appointees with new members who will be chosen for staggered terms of four years each and cannot be removed by the appointing powers. The governor’s four appointees will continue to serve two-year terms at the chief executive’s pleasure.

Because the leadership could remove its appointees at will, the Court of Appeal said, the old law 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,” Presiding Justice Arthur Scotland said.

In granting review, the justices asked the parties to brief three issues that would arise if it upholds the ruling of the Court of Appeal—what remedy the developer is entitled to, what effect the decision would have on previous and pending commission rulings, and whether the defect in the old law was cured by the passage of AB2X 1.

In other actions taken at the conference, the court:

•Voted not to hear a constitutional challenge by pornographer/casino operator Larry Flynt to the Indian gaming monopoly granted by Proposition 1A. The First District Court of Appeal ruled in Flynt v. California Gambling Control Com’n (2002) 104 Cal.App.4th 1125, that the legislation was designed “to deal with the special problems of Indians” and did not violate the equal protection rights of non-Indians.

•Let stand the 74-year-to-life sentence imposed on Vincent Hwang, a member of the Oriental Thugs gang, for attempted murder, assault, and drug and weapons violations, all arising out of a 2000 rumble at an In-and-Out hamburger stand in the City of Industry.

Only Justice Joyce L. Kennard voted to hear Hwang’s contention that the imposition of a life sentence on a defendant who was only 15 years old at the time of the crimes, when no lives were taken, constitutes cruel or unusual punishment.

Justice Margaret Grignon’s Jan. 23 opinion for Div. Five in People v. Hwang, B156960, remains unpublished.

•Unanimously agreed to resolve a conflict between this district’s Div. One and the Fourth District’s Div. Three as to whether a Discover Card user agreement that expressly bars class action arbitrations is enforceable.

The justices voted to review Discover Bank v. Superior Court (2003) 105 Cal.App.4th 326. Div. One ruled that the Federal Arbitration Act preempts provisions of the California Unfair Practices Act and other California law which the Fourth District panel said makes the class action waiver substantively unconscionable.

Los Angeles Superior Court Judge Carolyn Kuhl had ruled otherwise. The Div. One panel, in an opinion by Justice Reuben Ortega, said the panel in Orange County had not considered the preemption issue and thus erred in applying California law.

The justices also agreed to hear related issues decided by the Fourth District’s Div. Three in Mandel v. Household Bank (Nevada), Nat. Assn. (2003) 105 Cal.App.4th 75. The justices held that a unilateral amendment to a credit card agreement that added an arbitration clause is enforceable if the customer continues to use the card, and that if the amendment includes a class-action waiver of the type which the panel previously held unconscionable, that provision may be severed and the remainder of the clause enforced.

•Denied requests by the State Bar and by the pro per plaintiff for publication of the Jan. 23 ruling by the First District’s Div. Five in Levy v. Davis, A098306. The court rejected plaintiff Simon Levy’s claim that the State Bar violated the “official English” clause of the state Constitution by publishing informational pamphlets in other languages.

•Declined to grant review in People ex rel. Foundation for Taxpayer & Consumer Rights v. Duque (2003) 105 Cal.App.4th 259. The First District’s Div. Five held that former Public Utilities Commission member Henry Duque could not be removed from his post for owning stock in a company he helped regulate.

The panel said the statute under which the trial court had ordered Duque’s removal only applied when a commissioner acquired an interest in a regulated company involuntarily—such as through inheritance—and did not divest himself or herself of it within a reasonable time.

While it seems absurd to apply such to involuntarily acquired interests, while allowing a commissioner to remain in office after voluntarily acquiring stock in a regulated entity, the statute had to be construed narrowly because it encroached upon the fundamental right to hold public office, the commission said.

Duque is no longer on the commission. His term expired at the end of last year, just days before the Court of Appeal ruled in his favor.