Metropolitan News-Enterprise


Tuesday, November 1, 2005


Page 1


Justices Turn Back Attack on Validity of Coastal Commission Actions


By Kenneth Ofgang, Staff Writer/Appellate Courts


The U.S. Supreme Court yesterday declined to review a California Supreme Court ruling that left intact some 100,000 rulings handed down by the California Coastal Commission prior to the 2002 change in its appointment structure.

The justices, without comment, left standing a ruling earlier this year by the California Supreme Court in favor of the commission. The Marine Forests Society, a nonprofit group based in Orange County and dedicated to creating and restoring marine habitats, contended that the state high court ruling was so “abrupt and arbitrary” it deprived the society of due process and took its property without just compensation.

The state high court, in Marine Forests Society v. California Coastal Commission, 36 Cal. 4th 1, decided on June 23 of this year that the current appointment structure does not violate the state Constitution, nor may any defect in the previous structure be used as a basis to challenge past commission decisions.

Chief Justice Ronald M. George wrote for a unanimous court.

No Federal Issue

Deputy Attorney General Joseph Barbieri, representing the commission, argued in response to the society’s petition to the nation’s highest court that the case presented no issues of federal law.

The Coastal Commission was created in the 1970s to implement a voter-approved mandate for state oversight of land use in the coastal zone.

The law originally provided that all voting members of the commission—four appointed by the governor, four by the Assembly speaker, and four by the Senate Rules Committee—served at the pleasure of the appointing authority.

But the Third District Court of Appeal ruled in 2002 that the broad discretion given to legislative leaders to appoint and remove members of what was essentially an executive branch agency violated the constitutional separation of powers.

That panel affirmed a Sacramento Superior Court judge’s ruling in favor of the Marine Forests Society, which sued after the commission blocked its bid to create an artificial reef off Newport Beach. The reef was made of rope, used tires, plastic jugs and concrete blocks.

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

New System

The legislation replaced the previous legislative appointees with new members chosen for staggered terms of four years each, who could not be removed by the appointing powers. The governor’s appointees continue to serve two-year terms at the chief executive’s pleasure.

In upholding the new structure, George explained that unlike the U.S. Constitution, which strictly defines the roles of the different branches of government and bars anyone but the president from appointing high-ranking officials of the executive branch, the California Constitution allows the creation of “hybrid” boards or commissions to which some members are appointed by legislators.

Assuming that the Court of Appeal was correct as to the previous structure of the board, the chief justice went on to say, prior decisions of the commission are nonetheless insulated from challenge by the “de facto officer doctrine,” which holds that the remedy for the illegal occupation of a public office is generally removal from the office, rather than the nullification of the official’s actions.


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