Coast Panel Bill Clears Legislature

Seven weeks after a state appeals court declared that the California Coastal Commission violates the state Constitution, the Legislature passed a bill meant to address the court’s concerns and keep the powerful agency at work regulating development along the coastline.

On a vote of 50 to 23, the Democratic-controlled Assembly gave final approval to a bill that slightly revamps the commission’s structure by setting fixed, four-year terms for a majority of the commissioners -- those appointed by the Legislature.

The change blocks legislators from removing commissioners at will. That leverage, according to the court, gave the Legislature too much power over a body that belongs to the executive branch of state government.

Gov. Gray Davis has indicated he will sign the bill into law.

State officials and legal scholars believe the legislation will end the constitutional crisis facing the agency, which is both beloved and loathed for its broad license to grant and deny development permits on land, as well as its ability to regulate oil drilling and other industrial activities offshore.

Moreover, they believe the legislative fix will strengthen the commission’s independence as it weighs decisions that affect the property and pocketbooks of politically influential people.

“Four-year terms are better for the independence of the commission,” said Stephen R. Barnett, a state constitutional expert at UC Berkeley’s Boalt Hall School of Law.

From its inception 27 years ago, the commission’s 12 members have been granted two-year terms but could be removed at any time by the Sacramento leaders who appointed them. Four of the commissioners are appointed by the governor, four by the speaker of the Assembly and four by the Senate Rules Committee.

In late December, a state appeals court in Sacramento concluded that legislative leaders’ ability to appoint a majority of commissioners and to remove them “at will” violated the state Constitution’s separation-of-powers doctrine.

With the commission’s future in doubt, Gov. Davis called for a special session of the Legislature to address the legal challenge to the commission more quickly. The resulting bill by Assemblywoman Hannah-Beth Jackson (D-Santa Barbara) would take effect 90 days after the governor signed it. The governor has not indicated when he plans to sign the bill, a spokesman said Tuesday.

Republicans fought against the bill, arguing that the Coastal Commission tramples private property rights and needs a more extensive overhaul.

The legislation, as it emerged in final form, would give four-year terms to the eight commissioners appointed by the Legislature. The terms will be staggered so that each new speaker of the Assembly gets an opportunity to make appointments. Leaders of the Assembly and Senate, however, will not have the authority to remove commissioners named by their predecessors until their four-year terms expire.

The governor’s appointees will continue to serve at his pleasure, meaning they can removed at any time.

A new law should not immediately affect the makeup of the commission. Both Assembly Speaker Herbert J. Wesson Jr. (D-Culver City) and Senate President Pro Tem John Burton (D-San Francisco) said they do not intend to change their appointments if Davis signs the bill.

The original challenge to the Coastal Commission came in a lawsuit filed by the Marine Forests Society, a nonprofit group that built an artificial reef of discarded car tires and PVC pipe off Newport Beach without a permit.

Representing the group, Ronald Zumbrun, a Sacramento lawyer specializing in property rights defense, argued that the Coastal Commission’s order to remove the reef was invalid because the commission’s composition violated the state Constitution.

Zumbrun said Tuesday that the Legislature’s attempt to address the court’s concern falls short.

To avoid a separation-of-powers issue, he said, the Legislature should have no appointments on the Coastal Commission. Instead, he said, the commission should be accountable solely to the executive branch.

“Anything that does not have the Legislature getting out of the appointment business,” Zumbrun said, “doesn’t have a chance of passing court scrutiny.”

But Barnett, who has followed the case closely, predicted that the legislative fix, once signed by the governor, would “more than pass muster with the court.”

Peter Douglas, the commission’s executive director, said the commission’s lawyers reached the same conclusion. The legislation, he said, was carefully drafted to remedy the constitutional problem flagged by the 3rd District Court of Appeal.

Still, Douglas said, the commission last week asked the California Supreme Court to review the case and definitively answer the question: Should the governor appoint a majority of the commissioners?

If the court answers yes, it could force a change in the makeup of about 40 other state boards and commissions on which the governor controls fewer than a majority of appointments.

In addition, the state’s highest court was asked to resolve any question about the more than 100,000 building permits the commission has granted -- or denied -- since its inception. Do these decisions stand as legally valid, or are they subject to legal challenges because they were made by a commission that was declared in violation of the Constitution?

“The Supreme Court needs to address these questions,” Douglas said, “so the commission can carry on the public’s business without diverting public money to fight endless litigation by people who want to overturn decisions or destroy the commission.”