Metropolitan News-Enterprise


Friday, June 24, 2005


Page 1


S.C. Rejects Challenge to Validity of Coastal Commission Actions

‘De Facto Officer Doctrine’ Preserves Decisions Even if Members Were Appointed Illegally, George Says


By Kenneth Ofgang, Staff Writer/Appellate Courts


The California Coastal Commission’s 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, the California Supreme Court ruled yesterday.

The ruling, in a unanimous opinion by Chief Justice Ronald M. George, closes the door on the potential for challenges to some 100,000 rulings by the commission, which 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.

Court Ruling

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 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, temporarily blocking the commission from ruling on building permits in the coastal zone.

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

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.

The state high court, in granting review of the Court of Appeal decision, said it would consider both the validity of the new appointment structure and the validity of prior decisions of the commission.

George yesterday 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.

‘De Facto Officer’

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 when someone is placed in a public office, but holds the post illegally, the officer’s ability to continue sitting is subject to legal challenge, but his or her past actions are not.

Attorney General Bill Lockyer hailed the ruling in a statement.

“This is a victory for our world-class coastline and the people of California,” he said. “ The Court has found that what matters most is protecting the coast.  Today’s decision affirms that the Coastal Commission’s appointment structure reflects the will of the voters, who long ago declared that our coastal resources will best be preserved for future generations if planning decisions affecting the coast are made by an independent body comprised of members representing a variety of philosophical backgrounds.”

The case is Marine Forests Society v. California Coastal Commission, 05 S.O.S. 3042.


Copyright 2005, Metropolitan News Company