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Old 12-31-2002, 10:01 AM   #1 (permalink)
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California's Coastal Commission board is ruled invalid

Coastal board is ruled invalid
An appeals court says the panel violates the state's constitution.
By Gary Delsohn -- Bee Capitol Bureau
Published 2:15 a.m. PST Tuesday, December 31, 2002
California's Coastal Commission, which for 30 years has had the power to approve or prohibit development along the state's coastline, was declared unconstitutional Monday by a state appeals court in Sacramento.

The 12-member commission was found to violate the California Constitution's separation of powers provision because eight of its 12 members are appointed by and serve at the pleasure of legislative leaders, even though commissioners make mostly executive and judicial decisions.

If the ruling by the state's 3rd District Court of Appeal stands, it could wreak havoc on the always controversial process of deciding who gets to build -- and what they get to build -- along 840 miles of California coastline.

"If the commission is unconstitutional, it couldn't conduct business," said Peter Douglas, its longtime executive director. "That would create chaos because the law still requires the commission to issue permits for development, to approve amendments to local plans for development," and the ruling could open the door to federal activities that affect the coast, including offshore oil drilling, he said.

Douglas said the ruling, which he termed flawed, suggested several legislative solutions, including a relatively straightforward change to fixed-term -- instead of "at-the-pleasure" -- appointments for commissioners. That, presumably, would make them far less beholden to the legislators who gave them their jobs.

State Sen. Sheila Kuehl, D-Santa Monica, who is chairwoman of the Senate's Natural Resources and Wildlife Committee, said Democrats would probably introduce legislation to accomplish that "very quickly."

Attorney General Bill Lockyer said his office will probably appeal the ruling, which is to take effect in 30 days, to the California Supreme Court. If he does appeal, the order would be stayed until the state's high court ruled.

Although the 3rd District court decision didn't directly address whether past decisions by the commission could be overturned as a result of its now being declared unconstitutional, the decision said parties that didn't protest earlier commission actions at the time "may be" precluded from getting any future relief.

In his statement, Lockyer also questioned the motives of the attorneys who filed the lawsuit nearly two years ago that led to Monday's ruling.

The case stems from a cease-and-desist order by the commission against a nonprofit marine research organization that built a reef from used tires and nylon cord on the ocean floor near Newport Beach. It was part of an experiment by French marine biologist Rudolphe Streichenberger to create new habitats to grow seafood such as mussels and kelp.

The Marine Forests Society argued in its original lawsuit that since eight of the 12 Coastal Commission members are appointed by the Senate president pro tem and the Assembly speaker and can be fired by them -- the governor appoints the other four -- the commission doesn't have constitutional authority to issue executive and judicial decisions.

"The plaintiffs brought this lawsuit not to make sure the commission is appropriately constructed," Lockyer said in a prepared statement, "but instead to overturn a decision which prevents them from pursuing a private business venture off California's coast.

"Despite their belief that the commission made the wrong decision by opposing their project, the plaintiffs were not able to persuade a court to agree with their position. The plaintiffs have not asked for a reconstituted commission; they want coastal protection decommissioned."

Lawyers who challenged the legality of the commission, which was created by voter passage of the California Coastal Act in 1972 following years of concern over rapid development along the Pacific Coast, rejoiced at the ruling.

"The arbitrary way the California Coastal Commission exercises its combination of legislative, executive and judicial functions and powers serves as the poster boy for abuse of government power," said James Burling, lawyer for the Pacific Legal Foundation.

The Sacramento-based foundation, which doesn't believe the government should interfere with the rights of individual property owners, filed briefs attacking the commission's legality.

"We are delighted with the late Christmas present delivered today by the 3rd District Court of Appeal," Burling said.

Sacramento attorney James Zumbrun, a foundation co-founder who filed the original lawsuit against the commission, said the ruling was also a personal victory because he has been fighting the agency for more than 20 years. A Sacramento Superior Court judge ruled in his favor in May 2001; Monday's ruling resulted from the state's appeal of that decision.

"I feel wonderful about it," Zumbrun said. "This flips everything upside down. It's no longer someone's folly. It's a court's solid decision."

The Coastal Commission has long been mired in controversy, in part because any significant development along the coast often generates passion and strong feelings from local residents and public officials, and from environmentalists and developers.

With hundreds of millions of dollars in upscale and exclusive development at stake, the commission also has come under attack for being susceptible to possible influence peddling from wealthy and politically influential developers. In what was arguably the commission's worst moment, Commissioner Mark L. Nathanson went to prison in 1993 for extorting payments from people seeking permits to build on the Southern California coast.

Legislative leaders in the past, as well as governors, also have come under criticism for allegedly trying to exert influence on their appointees.

"The Coastal Commission was a totally additional layer of government with total powers that used them in an inconsistent way," Zumbrun said. "They're not accountable to anyone. The public has nowhere to complain or congratulate. The results were an agency that applied its power in ways that were never intended by the Coastal Act."

In its ruling, the appellate court concentrated more on how the majority of commissioners can be removed than on how they are appointed.

"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 (legislative leaders) makes those commission members subservient to the Legislature," the 29-page ruling said.

"In a practical sense, this unrestricted power to replace a majority of the commission's voting members, and the presumed desire of those members to avoid being removed from their positions, allows the legislative branch not only to declare the law but also to control the commission's execution of the law and exercise of its quasi-judicial powers."

Kuehl said Democrats are likely to move quickly to satisfy the court's concerns over the commission's constitutionality, probably by setting fixed terms so members don't serve at the will of legislative leaders.

Lockyer made it clear that, no matter what happens in court, he feels strongly that the commission needs to be preserved.

"For nearly 30 years the Coastal Commission has worked to fairly and evenhandedly protect the public trust by ensuring responsible stewardship of our coastline," he said.

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Old 12-31-2002, 10:55 AM   #2 (permalink)
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Third District Court of Appeal Affirms that Coastal Commission is Illegally Formed Agency; CCC Violates California Constitution's Separation of Powers Clause

Contact: James Burling
Phone: (916) 362-2833

Sacramento,CA; December 30, 2002: The Third District Court of Appeal today
affirmed a lower court's decision that the California Coastal Commission is an unconstitutionally formed governmental body, violating the state constitution's separation of powers provisions.

"The arbitrary way the California Coastal Commission exercises its combination of legislative, executive, and judicial functions and powers serves as the poster boy for abuse of government power," said Pacific Legal Foundation Attorney James Burling.

"We are delighted with the late Christmas present delivered today by the Third District Court of Appeal," said Burling.

Pacific Legal Foundation supported with legal briefs the Marine Forests Society which sued the Coastal Commission claiming its structure violated the state constitution.

Unique among state government agencies, the Coastal Commission to date has possessed the executive power to implement and enforce the coastal protection policy it establishes, including the granting or denying of coastal building or construction permits, and the issuance of cease and desist orders. However, while the Commission is regarded as an executive branch agency and 4 of its 12 voting members are appointed to fixed terms by the governor, the other voting members are appointed 4 each by the Senate Rules Committee and the Assembly Speaker, and serve "at their pleasure."

In a 1987 Los Angeles Times editorial, the agency's actions were described as "the most blatant and arrogant displays of political power to emanate from Sacramento for some time."

According to PLF, the Coastal Commission has, over time, grown excessively comfortable with its near-unreviewable authority. Except for limited judicial appeals, the Commission's unique statutory scheme, including its composition and method of member appointment, made its actions and decisions nearly unaccountable to not only California citizens, but also to any higher authority.

"The people of California are the big winners today," said PLF's Burling.

"No government agency should possess so much power over the peoples' individual and economic lives without checks and balances to prevent its abuse," he said.

Last April, Sacramento Judge Charles Kobayashi found the Commission's structure unconstitutional in a case involving French marine scientist and researcher, Rodolphe Streichenberger. In 1986, Streichenberger and a small group of volunteers founded a nonprofit foundation known as the Marine Forest Society, based in Newport Beach.

About Pacific Legal Foundation
Founded in 1973, Pacific Legal Foundation is, in the words of the Washington Post, the "oldest, largest and perhaps most influential" public interest law firm dedicated to limited government and individual rights.


###
To arrange interviews on this issue, journalists and producers may contact PLF's Media Director, Denise Davis, at (916)362-2833.

Last edited by Crowdog; 12-31-2002 at 11:05 AM.
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Old 12-31-2002, 11:35 AM   #3 (permalink)
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Yeah, I saw this earlier. Quite a constitutional and legal pickle!
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Old 12-31-2002, 04:46 PM   #4 (permalink)
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So would the same apply to the [email protected]#$ed up OHV commission
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Old 12-31-2002, 10:23 PM   #5 (permalink)
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Quote:
Originally posted by smurfsdad
So would the same apply to the [email protected]#$ed up OHV commission
I asked that question of the PLF, and here is their response:

Quote:
Interesting point. Yes, the OHMVR has seven appointees, four legislative and three executive. The separation of powers element is not quite as egregious as with the CCC for several reasons. First, the terms are not at-will, meaning commissioners cannot be fired on the eve of a vote if they do not promise to vote a certain way. Second, the activities of OHMVR are not a flagrantly "executive" as the CCC's--OHMVR does not approve land use plans, approve development permits, or bring enforcement actions. That said, however, yesterday's case does call into question the majority appointment scheme of OHMVR because there are some executive functions within that body and because the checks and balances referred to as missing with the CCC in yesterday's decision are also missing from OHMVR. If one were interested, however, in mixing it up with the OHMVR, I would strongly suggest waiting for the outcome of any Supreme Court appeal in the CCC case. First, a trial court would probably delay any ruling on OHMVR pending the appeal. Second, in the CCC case, the CCC has been crying Chicken Little, claiming the sky will fall on government as we know it if the ruling is upheld. While that may or may not be true, and while that may or may not be a good thing, I think it is important that the Supreme Court focus its attention solely on the CCC without being distracted by other issues dealing with other agencies.
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Old 01-03-2003, 10:58 AM   #6 (permalink)
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CALIFORNIA

State Senate leader asks Davis for session on coastal commission

California Senate President Pro Tem John Burton (D) asked Gov. Gray Davis (D) on Thursday for a special legislative session to respond to a state appeals court's ruling that the California Coastal Commission is unconstitutional.

On Monday, California's 3rd District Court of Appeal found the commission violates the California Constitution's separation of powers clause because the legislature appoints eight of its 12 members but the commission acts much like an executive agency. If the court's ruling stands, it could affect development along the state's coastline (Greenwire, Jan. 2).

In a letter to Davis, Burton wrote that without legislative action, a state Supreme Court ruling that upholds the appellate court's opinion would mean "the state's ability to protect the coast would be jeopardized." Burton: "If the Supreme Court rules, we could be without a commission" (Carl Ingram, Los Angeles Times).

California Attorney General Bill Lockyer (D) is expected to appeal the ruling to the state Supreme Court within 30 days or ask for a rehearing from the California Court of Appeal. Because the three-judge appellate panel did not address issues such as whether the Coastal Commission's three decades of rulings are invalid, the commission may seek to gain clarification on these points through a rehearing. But lawmakers do not want to wait to see what the courts decide, preferring to relinquish some of their control to retain the agency's constitutionality (Robert Salladay, San Francisco Chronicle).

Davis spokesman Steve Maviglio said the governor wanted to explore appealing the ruling before calling a special session. Maviglio: "The governor wants to ensure that the Coastal Commission can continue to work to protect our coast. We will do everything we can to keep them in business" (Steve Lawrence, AP/Contra Costa Times).

The court's ruling came in response to Rodolphe Streichenberger's 1999 lawsuit stemming from his 15-year-old battle with the commission and state agencies to create an experimental 10-acre reef off Newport Beach, Calif. "This is a victory against the tyranny of the Coastal Commission," Streichenberger said. "It was a precious experiment involving sea life, but the government didn't want it" (David Reyes, Los Angeles Times).

"We finally found a trial judge who agreed with our kooky ideas, and this Court of Appeal's ruling certainly gives the case credibility that the Coastal Commission has to pay attention to," said property rights lawyer Ronald Zumbrun, who represents Streichenberger (San Francisco Chronicle).

If the court's ruling stands, it would have the greatest impact on Southern California, where many cities and counties do not have approved coastal plans. Even in jurisdictions with approved plans, landowners along the southern coast are more likely to appeal decisions by local authorities to the commission (Tom Chorneau, Santa Rosa Press Democrat, Jan. 2).

Coastal Commission -- How's it playing?

A San Jose Mercury News editorial: "The real issue is whether the commission will continue to have the power to protect California's splendid coastline. Fortunately, nothing in the court's decision suggests that an appropriately appointed Coastal Commission would not have the authority to protect the coast as aggressively as it has in the past."

Point Reyes Light columnist David V. Mitchell: "Unless the state Supreme Court takes up the case or the Legislature immediately gives commissioners fixed terms (as current executive director Peter Douglas has suggested), the commission's role will from now on be limited to planning and establishing regulations in compliance with the Coastal Act. In short, within a month, the commission may lose its power to rule on permits or issue cease-and-desist orders."
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