California's coast has withstood huge waves and oil spills, bikini contests and infestations of dead squid. But it will take the state Supreme Court and the Legislature to save it from a legal attack that won a curious victory Monday in the state 3rd District Court of Appeal.
For three decades the state Coastal Commission has protected Californians' sandy beaches and rocky coves from overreaching developers and every variety of shortsighted profiteer. A narrow interpretation of the law dealing with how coastal commissioners are appointed must not be allowed to junk those safeguards.
The lawsuit decided this week was brought by Ronald Zumbrun, a Sacramento attorney who has long argued that the commission tramples on property rights and "isn't accountable to anyone." But the suit and the court ruling focused entirely on the appointing process and not the commission's regulatory powers.
When the Legislature passed the Coastal Act in 1976, it sought to assure the commission's independence from the governor by giving legislative leaders the power to appoint eight of the 12 commissioners -- four by the Assembly and four by the Senate -- to two-year terms. But here's the kicker: They could be fired at any time by the lawmakers who appointed them. That's a precarious form of independence.
The court held that the Legislature unconstitutionally infringed on the powers of the executive branch by having the "unfettered authority" to fire commissioners. There didn't have to be evidence that a commissioner was fired for casting a "bad" vote, or intending to -- something that has occurred in the past. Rather, the three-justice panel said it was enough that a commissioner might vote one way or another to avoid being fired.
What's strange (and a bit scary) is that the court threw out the entire Coastal Act when it could have simply nullified the flawed appointment provision alone.
The state should appeal the decision to the Supreme Court, which may well take a more pragmatic view of the issue. Then the Legislature needs to pass a law that corrects the appointment provisions of the Coastal Act so there is no longer any doubt about their constitutional correctness. In any event, state Sen. Sheila Kuehl (D-Santa Monica) says she will sponsor legislation to correct the problem by having commissioners serve fixed terms -- four years would be good -- and not be subject to firing.
That should solve the legal problem. Better public policy, with added legal insurance, would be to expand the commission to 13 members, with the governor appointing a majority of seven and the legislative bodies adding three each.
Lawmakers won't easily give up any of their appointing power. In this case, Californians should demand it of them as a step toward ensuring that their 1,150 miles of coast will have protection from those who would pollute it or fence it off.