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Coastal Commission Asks Judges for Second Opinion

Members vote to appeal ruling declaring agency unconstitutional, vow to take fight to high court.

January 09, 2003|Kenneth R. Weiss | Times Staff Writer

The 12 members of the California Coastal Commission on Wednesday voted unanimously to appeal a court ruling that declared the agency's structure to be unconstitutional and jeopardizes its authority to regulate development along the state's 1,150-mile coastline.

The commissioners instructed their lawyers to first ask a state appeals court in Sacramento to reconsider its ruling that the commission violates the state Constitution's separation of powers doctrine because the Legislature can appoint -- and dismiss -- two-thirds of the commissioners "at will." The 3rd District Court of Appeal last week ruled that this "unfettered" authority to remove commissioners gives the legislative branch of government too much power over the commission, which is part of the executive branch.

If the three justices on the appeals court panel don't change their minds, the commission's lawyers will ask the state Supreme Court to overturn the decision. Filing the requests with the courts effectively suspends the ruling and keeps the commission in business -- for now.

"Our position is that under the law, the justices made an incorrect decision," said Commission Chairman Mike Reilly. But if the three justices won't alter their decision, the commission's lawyers will then ask them to clarify a remedy. What the lawyers may suggest is that the court simply strike out the offending language of the Coastal Act, which allows legislators to remove commissioners "at will."

Reilly said he has been meeting with lawmakers who want to fix the problem by changing the law. "Clearly, there are legislators who are as concerned about coastal protections as the general public," he said.

One of those lawmakers is Assembly Natural Resources Committee Chairwoman Hannah-Beth Jackson (D-Santa Barbara), who on Wednesday announced she will introduce a "very simple" bill to resolve any constitutional issue. Her legislation, which she said has the support of Assembly Speaker Herb Wesson (D-Culver City), will strip the provision in the Coastal Act that says commissioners can be removed at the pleasure of those who appoint them and instead give each commissioner a fixed, two-year term.

Other members of the Legislature, responding to property rights advocates, the real estate and building industries, and others, favor legislation that would give the governor the power to appoint a majority of the coastal commissioners. Currently, commission appointments are equally split among the governor, the Assembly speaker and the Senate Rules Committee. Each gets to appoint four.

Jackson pointed out that the equal, three-way split in appointments was designed to shield the commission from undue influence from the governor or a particular lawmaker. That way, she said, it fortified its independence to tackle tough decisions that must balance a property owner's rights to develop with those of the public to preserve the coast and retain access to beaches.

"It's critical to maintain the commission's independence because of what could happen in the future," Jackson said. "We may have a governor now who supports protecting the coast. But prior to Gov. Davis, we had governors who wanted to get rid of the coastal commission and appointed members who were philosophically opposed to the commission. That could happen again, and we could see tremendous damage to the coast."

Jackson said she will introduce the legislation as soon as Gov. Gray Davis calls a special session of the Legislature, as he said he is inclined to do. The reason for a speedy special session is so that any change in the law can take effect immediately instead of waiting for the usual effective date of legislation -- Jan. 1 of the following year.

Senate President Pro Tem John Burton (D-San Francisco) last week asked Davis to convene a special session so that the commission could continue orderly business and avoid throwing thousands of development permits into legal limbo.

Byron Tucker, a Davis spokesman, said the governor has not yet made a final decision, but remains committed to keeping the coastal commission functioning. "The Davis administration is talking to legislative leadership to design a solution that will hold up in a court of law," he said.

The case that now threatens the commission was filed by Ronald Zumbrun, co-founder of the conservative Pacific Legal Foundation, which has spent decades trying to reign in the coastal commission's power to approve and deny development permits both on and offshore.

In this case, he raised the constitutional arguments in a lawsuit on behalf of the Marine Forests Society, a nonprofit group that failed to get a coastal permit to build an artificial reef off Newport Beach out of discarded car tires and other materials to foster growth of kelp and mussels. The lawsuit challenged the commission's constitutional authority to tell the group to clean up the tires -- a position first embraced by a Superior Court judge and then the appellate court.

Matt Rodriquez, senior assistant state attorney general representing the commission, said his office has until Tuesday to ask for the justices to review their decision. The justices have until Jan. 29 to indicate if they will be willing to reconsider.

If the commission isn't protected by the courts or the Legislature, the Sierra Club, the League for Coastal Protection and other environmental groups, may ask voters to approve a ballot initiative that would plug what they consider are a number of loopholes in the Coastal Act.

"One of the things we've always talked about was establishing fixed terms," said Mark Massara, manager of the Sierra Club's coastal programs. "The irony is that this case, which was brought to undermine the commission, may end up strengthening it."

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