Justices not inclined to upset coastal commission applecart

By PAUL MILLER

Published: April 8, 2005

IN A disjointed, rambling session that lasted almost an hour Wednesday, justices on California’s Supreme Court seemed to agree with an attorney for the California Coastal Commission that a 2003 legislative fix is enough to keep the commission from violating the state constitution’s separation of powers clause.

Two of the justices went so far as to offer their own reasons why it’s fine to allow the President of the Senate and the Speaker of the Assembly to continue appointing eight of 12 coastal commissioners because that doesn’t necessarily mean they control what the commission does. Lower courts have ruled the appointment scheme allowed the legislature to encroach on the political territory of the governor, who is supposed to enforce laws after the legislature passes them.

“Your argument loses impact in the face of term limits,” Chief Justice Ronald George told Ron Zumbrun, attorney for the Marine Forests Society, which sued the coastal commission for ordering it to remove an experimental underwater reef off the Newport Beach pier. “Assembly speakers come and go after a year or two. They don’t even have the longevity that coastal commissioners have.”

“The likelihood of mischief is substantially reduced by term limits of the legislature,” agreed Justice Ming W. Chin.

“Before the Coastal Act, there wasn’t anything that showed land-use planning was overseen by the executive branch,” observed Justice Joyce Kennard. “One could reasonably conclude that [letting the legislature appoint eight of 12 coastal commissioners] does not affect a core function of the executive branch.”

Kennard also observed that numerous other states let their legislatures appoint officials to agencies that are nominally controlled by the governor.

She told Zumbrun he has a tough row to hoe.

“The hurdle you have to overcome is this,” Kennard said. “The California Constitution imposes no prohibition against legislative appointment of executive branch officers; this court has consistently upheld the exercise of that power, and on top of all this, this is in line with the practices in other states. How do you overcome these hurdles?”

Zumbrun responded by arguing that individual liberties are threatened when the powers of government are not divided, and that this principal is basic to our form of government.

“This court has been given the obligation to protect the public,” Zumbrun said. “The coastal commission has been erratic and subjective.”

“But you are relying on an inchoate separation of powers argument,” the chief justice observed.

Can the legislature do it all?

Representing the commission, deputy attorney Joseph Barbieri argued that there was nothing in the California Constitution limiting the legislature’s power to appoint government officials, and that any dispute over this principle had long been settled.

“More than 100 years ago, this court upheld the legislature’s power to appoint executive officers, and twice rejected the separation of powers argument,” he told the justices.

“But is that power without limitation?” Chief Justice George asked. “Could the legislature appoint each and every person in the executive branch?”

“We’re not talking about [the legislature appointing] someone who is a close confidant of the governor,” Barbieri said. But otherwise, the answer is yes, he said.

“And what about the power to remove them?” asked Justice Chin. “Are you saying they have that?”

“Yes I am,” Barbieri replied.

Chief Justice George challenged Barbieri on this point: “What test should we use, then, to decide when there has been a violation of the separation of powers clause?”

Barbieri responded that the only thing the legislature could not do was “direct the decisions of coastal commissioners in any way,” and he said it would be up to the voters — not the courts — to punish legislators who overstepped their bounds. “The check [on the legislature’s power] is the political process,” he said. Also, history shows there is no reason to worry, he said, because the legislature hasn’t tried to grab the governor’s power by appointing majorities of numerous executive branch agencies.

“But wouldn’t we give them a road map to do that by ruling as you wish?” Justice Chin asked. “Don’t we need something more than faith to provide checks and balances?”

“The checks and balances were struck at the beginning,” Barbieri said. When the state constitution was adopted, “there was a philosophical decision made that the power of appointment was safer in the hands of the legislature, because it is closest to the people.”

(This discussion is important because during almost all of the coastal commission’s 29-year history, a Democratic majority has controlled the legislature, giving that party control of the coastal commission and frustrating a string of Republican governors who tried to reign in the coastal commission’s power. If the California Supreme Court rules that the governor must control the coastal commission, it could mean a radical departure from the commission’s history of strictly controlling what private property owners and local governments can do.)


How to fix past wrongs

Although Barbieri argued that the legislature has an unfettered power to appoint and fire coastal commissioners, there was no sentiment among the Supreme Court justices to restore the old at-will appointment scheme soundly rejected by the appeals court two years ago, and which the legislature almost immediately switched to a system of fixed terms.

The justices wanted to know what the impact would be on decades of coastal commission permit decisions if they agreed with lower courts that from 1976 to 2003 the commission was unconstitutionally structured.

“If we agree with you that the current scheme is constitutional, but not the prior one, what would the effect be?” Chief Justice George asked.

“In our view, it would not affect the validity of any of those decisions,” Barbieri said. All the old decisions — including the order against the Marine Forests Society — should be granted validity under what Barbieri called the “de facto officer” doctrine.

“This court should say, ‘those decisions were made under the color of law and we’re not going to undo a scheme that everybody relied on,’” Barbieri argued.

During oral arguments, Zumbrun wasn’t given the chance to respond to this point, but in earlier comments, he agreed that most permit decisions made by the commission over the decades would not be undone by a Supreme Court ruling in his favor. However his client, and about 20 others property owners who challenged the coastal commission’s makeup recently, should be entitled to have the courts overrule the commission’s decisions on their permits, he said.

And Zumbrun argued Wednesday that the coastal commission should be ordered by the supreme court to stick to policy making and leave permit decisions to local government agencies.

“What would they be able to do?” Chief Justice George asked. “Put out pretty brochures?”

“Not at all,” Zumbrun argued. “The commission would still be able to set policy and do rule making [about development along the coast].”

There was no indication when a ruling will come from the high court, which waited more than two years to hold oral arguments after the case was submitted to them.