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Coastal Panel Asks Court to Void Rulings

Commission's decisions are open to challenge even if Legislature fixes constitutional problem.

February 11, 2003|Kenneth R. Weiss | Times Staff Writer

The California Coastal Commission asked the state Supreme Court on Monday to throw out lower court rulings that found the commission in violation of the state's Constitution because of the way its members are appointed and the way they can be dismissed.

The commission believes there is reason to appeal, even though the state Legislature may soon fix a constitutional problem at the heart of the case. A bill to remedy the problem could receive final legislative approval and land on Gov. Gray Davis' desk next week.

The commission's lawyers argue in a 27-page appeal that, no matter what happens in the Legislature, there remains a pressing need for the Supreme Court to settle a number of legal issues left unanswered by a Sacramento appeals court ruling that threatens to shut down the commission.

A key question is what will happen to the more than 100,000 building permits that the commission has granted or denied since its inception.

The legal case "already has and will continue to inspire collateral attacks on the thousands of administrative decisions issued by the commission during the past 27 years," the commission's appeal said. "The critical issues raised by this opinion are not going away."

In the opinion, the 3rd District Court of Appeal ruled in late December that the commission's makeup violates the Constitution's doctrine on separation of powers because the Legislature controls eight of the 12 members of the commission, which acts as an agency of the executive branch.

The three-justice panel said it wasn't troubled by the Legislature's appointing a majority of the commissioners, but rather by the Legislature's power to dismiss these commissioners at any time. The justices ruled that the arrangement gives the Legislature too much authority over the commission, which performs functions of the executive branch, such as granting or denying building permits.

Two bills pending before a special session of the Legislature would limit the Legislature's authority by giving commissioners fixed terms of four years, shielding them from legislators' power to remove them at will. The governor's four appointees would continue to serve at his pleasure.

In its appeal filed Monday, the commission's lawyers pressed the Supreme Court to settle all of the legal issues. Although the lower court's ruling found the commission in violation of the Constitution, the lawyers wrote, "it is vague and ambiguous about what structure would be constitutional."

"The narrow and most plausible reading of the lower court's opinion is that there is a separation-of-powers violation only where the Legislature reserves the power to appoint and remove a majority of a board's members. Others, however, have interpreted the opinion to mean that the governor must command a majority of the appointments."

This issue could determine the future of about 40 other state boards and commissions on which the governor controls fewer than a majority of appointments, according to commission's lawyers on the staff of Atty. Gen. Bill Lockyer.

Ronald Zumbrun, co-founder of the Pacific Legal Foundation and the property rights lawyer who mounted the legal challenge, dismissed the appeal as the same arguments that have been rejected twice by lower courts.

"It's based on a misinterpretation of the California Constitution," Zumbrun said. "They've added Chicken Little scares as to what's going to happen if the court of appeal's ruling is upheld. I believe the Supreme Court will see right through their brief."

The commission also asked for a speedy review of the case. The justices have 60 days to decide whether to take up the matter.

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