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Coastal Commission Appointments Deemed Unconstitutional

The method of appointing members to the California Coastal Commission has been declared unconstitutional by the Third District Court of Appeal. The ability of the speaker of the Assembly and the Senate Rules Committee to appoint eight of twelve commissioners and remove them at will violates the separation of powers doctrine, the court held. State attorneys likely will ask the state Supreme Court to review the decision. Property rights activists who brought the suit praised the decision and questioned whether the state's high court would take the case. But while the decision initially appeared to be a big victory for landowners and builders, the implications of the ruling are murky. The court made clear it was not touching the previous 26 years of Coastal Commission decisions. And if the court's ruling were to go into effect it was scheduled to on January 29 the entire state agency and its regulatory scheme would not disappear. The court did not strike down any portion of the Coastal Act except some sections relating to the appointment of commissioners. State lawmakers said they would cure the constitutional defect, although it was unclear if a legislative solution would satisfy property rights advocates and the court. In the Third District opinion, Presiding Justice Arthur Scotland presented something of a primer on the system of checks and balances. "[W]e conclude that the Commission's interpretation and implementation of the California Coastal Act of 1976 is an executive function, and that the appointment structure giving the Senate Committee on Rules and the Speaker of the Assembly the power not only to appoint a majority of the Commission's voting members but also to remove them at will contravenes the separation of powers clause of California's Constitution. In a practical sense, this unrestrained 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." California State University, Sacramento, government professor John Syer said the ruling "should not be a surprise." He noted that the U.S. Supreme Court made a similar ruling in 1976, when the court ruled that only the president and not Congress could appoint members to the Federal Election Commission. (Buckley v. Valeo, 424 U.S. 1.) "It's about time that the state has caught up with the federal government," Syer said. "They've been out of conformity with federal court rulings for 25 years." The attorney who brought the case, Ronald Zumbrun, said he has been looking for a venue to make his arguments regarding the appointment system for years. However, Superior Court judges have declined to tackle the constitutional issues, he said. This time, however, Zumbrun filed a lawsuit in Sacramento County, where it is not unusual for the Superior Court to decide cases involving the state's authority and the system of government. Sacramento County Superior Court Judge Charles Kobayashi was willing to consider Zumbrun's argument, and in 2001 Kobayashi ruled that the Coastal Commission's composition was unconstitutional (see CP&DR Legal Digest, June 2001). The Third District upheld that ruling. "I think it's air-tight if it ends up before the California Supreme Court," Zumbrun said. "I think it's possible that the Supreme Court will take it up, but not probable. They would take it up merely to put their imprint on such an important decision." Scholars, while not necessarily disagreeing with the ruling, predicted the state Supreme Court would likely accept the case. "I cannot imagine the Supreme Court will leave it up to the Court of Appeal to invalidate the entire Coastal Commission," Santa Clara University law professor Gerald Uelmen told the Los Angeles Times. The lawsuit that raised the constitutional questions involved the Marine Forests Society's construction of a reef from old tires, plastic jugs, PVC pipe and concrete blocks on the ocean floor off Newport Beach. The nonprofit organization built the reef more than 10 years ago, saying it was an experiment intended to aid marine life. In June 1993, the Coastal Commission determined that the Marine Forests Society project was a coastal zone development that required a permit. The commission later refused to approve an after-the-fact permit, and in 1999 the Commission issued a cease and desist order. Marine Forests Society sued, claiming the Commission did not have the authority to issue the order because the way its members were appointed violated the separation of powers doctrine. Marine Forests argued that, as composed, the Commission was actually part of the legislative branch and could make policy but the Commission could not perform executive or quasi-judicial functions. Judge Kobayashi agreed and enjoined the Commission from granting or denying permits and from issuing cease and desist orders. The Third District stayed the injunction while considering the Commission's appeal, but the appellate court eventually ruled that Kobayashi was right and his injunction was proper. The Coastal Commission is a 12-member panel created by the Coastal Act (Public Resources Code 30000 et seq.). The governor, the Assembly speaker and the Senate Rules Committee each appoint four members for two-year terms. Commissioners can be removed at any time. The Commission argued that the state constitution does not prevent the Legislature from appointing members to an executive branch agency, and that then-Governor Jerry Brown voluntarily gave the Legislature the right in this instance. The Third District, however, said the relevant question is "whether the appointment mechanism in 30301 and 30312 undermines the authority and independence of the agency." The court answered yes. "There are no safeguards and checks which would serve to ensure that the Commission is under the primary authority and supervision of the executive branch," Justice Scotland wrote for the unanimous three-judge panel. "Rather, the retention by the Legislature of virtually unfettered power of appointment, and wholly unfettered power of removal, over two-thirds of the voting members of the Commission serves to ensure that the Commission is under control of the Legislature." "This is not merely a paper conclusion," Scotland continued. "It is a political reality." He pointed to the Commission's own argument that it functions free of executive branch authority. Scotland cited Bowsher v. Synar, (1986) 478 U.S. 714, in which the U.S. Supreme Court ruled that Congress could not remove the U.S. comptroller general, who was charged with identifying budget cuts for the president when the federal deficit reached a certain point. "To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto," the court held in Bowsher. That kind of congressional control is unconstitutional. Finally, the Third District ruled that the governor cannot allow the Legislature to usurp his authority to make executive branch appointments. The court made clear its opinion concerned only this case and was neither retroactive regarding Coastal Commission decisions, nor applicable to other executive branch agencies to which the Legislature appoints members. The Case: Marine Forests Society v. California Coastal Commission, No. C038753, 02 C.D.O.S. 12484, 2002 DJDAR 14692. Filed December 30, 2002. The Lawyers: For Marine Forests Society: Ronald Zumbrun, (916) 486-5900. For the Commission: Lisa Trankley, deputy attorney general, (916) 327-7877.