Coastal Panel Challenge Aired

A state appellate court panel on Wednesday vigorously challenged assertions that the composition of the California Coastal Commission is unconstitutional.

The justices were responding to oral arguments in a case, brought by the co-founder of a conservative legal foundation and upheld by a lower court last year, that could strip the coastal commissioners of most of their powers to dictate what can and cannot be built along the coast.

The justices focused on the principal argument raised by property rights lawyer Ronald Zumbrun that the commission violates the state Constitution’s separation of powers doctrine because the Legislature appoints two-thirds of the 12-member panel that acts like an executive agency by granting or denying building permits.

“There are a lot of presidents unhappy with their appointees to the U.S. Supreme Court because they didn’t act the way they hoped they would,” said Arthur G. Scotland, presiding justice of the 3rd District Court of Appeal.

Scotland was more open to the assertion that the lawmakers’ ability to remove these commissioners “at will” gives the Legislature too much control over the executive branch.

“Let’s talk human nature here,” Scotland said. “When you have a position that you want to keep, it puts you in a subservient role. Your basic desire is not to lose your job.... So why doesn’t that create a problem?

Scotland raised an issue that has long swirled around the Coastal Commission. Without fixed terms, commissioners can come under strong pressure from the people who appointed them. The issue surfaced again last week, when the staff of Gov. Gray Davis and Assembly Speaker Herb Wesson (D-Culver City) were urging their appointees to replace environmental activist Sara Wan as chairwoman.

The appellate justices looked hard at what Stephen R. Barnett, an expert on the state Constitution at UC Berkeley’s Boalt Hall law school, said may be a legal flaw in the way the commission was organized. He cited a 1986 U.S. Supreme Court case which drew a similar objection to Congress threatening to remove officers in the executive branch.

The question for the appellate justices, he said, will be how to fashion a remedy. Barnett said they could simply strike down that portion of the Coastal Act that says commissioners can be “removed at will.”

If the justices do so, they will end up strengthening the independence of the commission.

Or, he said, they could “strike down the whole structure of the commission, which is doubtless what the plaintiff would like.”

Joseph Barbieri, a deputy attorney general arguing on behalf of the Coastal Commission, maintained that the state Constitution differs in many ways from the federal Constitution, especially in granting the Legislature authority to appoint officers of the executive branch. He noted that the governor’s appointees do not make up the majority of members on dozens of state commissions and agencies.

“Since the 1850s, it has always been the role of the Legislature to appoint executive officers,” Barbieri said. That authority, he said, has been supported by court cases dating back to 1857.

Zumbrun, the property rights lawyer, on Wednesday asked the justices to “strip the California Coastal Commission of its quasi-judicial and executive functions,” which he says include unchecked dictatorial powers over the state’s 1,150-mile coastline.

Zumbrun, co-founder of the Pacific Legal Foundation, has spent more than a dozen years trying to find a judge who would agree with his theory to unravel a commission.

He brought up the argument in a lawsuit he filed on behalf of the nonprofit Marine Forest Society, which built an artificial reef a dozen years ago off Newport Beach without getting the proper permit from the Coastal Commission. In addition to challenging the commission’s “cease and desist” order to remove the reef, Zumbrun arguing that the commission’s very existence violates the state Constitution.

He reiterated his main point to the appellate justices, focusing on those members appointed by the Legislature. “The governor does not have any power over them. The secretary of resources doesn’t either. They can thumb their nose at them and do anything they want,” he said.

Last year, Sacramento Superior Court Judge Charles C. Kobayashi ruled in Zumbrun’s favor, declaring the commission to be a “legislative body.” As such, the judge decided, it cannot perform functions of the executive branch, such as approving or denying coastal development permits or issuing cease and desist orders.

“Purportedly an executive agency, the commission is answerable to no one in the executive [branch],” Kobayashi wrote. “The members are not directly answerable to the voters. ... The Coastal Commission is effectively a legislative agency.”

Kobayashi’s decision, which was suspended on appeal, was unique in that it was the first to challenge the commission for precisely what has made it so effective in resisting outside pressures: the independence it derives from splitting its appointments three ways.

Because four members of the commission are appointed by the governor, four by the Assembly speaker and four by the Senate Rules Committee, no one person or entity has control over a majority of members.

A ruling is expected early next year from the appellate panel, made up of Justices Scotland and Rodney Davis -- both appointees of former Gov. George Deukmejian, who during the 1980s tried to dismantle the Coastal Commission -- and Ronald B. Robie, recently appointed to the court by Gov. Gray Davis.