State urges court to find Coastal Commission constitutional

Wednesday December 18, 2002

By STEVE LAWRENCE
Associated Press Writer

SACRAMENTO (AP) The state urged an appeals court Wednesday to uphold the California Coastal Commission, saying the fact legislators appoint a majority of the commissioners doesn't violate the constitution.

``Over 150 years the Legislature has created more than 100 executive agencies and appointed and removed hundreds of executive agency officers,'' said Deputy Attorney General Joseph Barbieri.

``This issue, in one way or another, has been litigated since 1850.''

But Ronald Zumbrun, an attorney representing the Marine Forests Society, said the fact legislative leaders appoint eight of the 12 commissioners and can remove them at will violates the constitution's separation of powers clause.

That appointment system makes the commission, in effect, ``a legislative committee,'' not the executive branch agency the state contends it is, he said.

The state is appealing an April 2001 ruling by Sacramento County Superior Court Judge Charles Kobayashi on a lawsuit filed by the society, a nonprofit group that wanted to use old tires to create an artificial reef off Newport Beach to develop fish habitat.

Because it had not been issued a permit, the society was ordered by the commission to stop the project in 1999.

The commission, which helps regulate development along California's 1,100-mile coastline, was created by voters in 1972 and made permanent by the Legislature in 1976.

The Assembly speaker and Senate Rules Committee each appoint four members of the commission. The other four voting members are appointed by the governor.

Commissioners serve two-year terms but can removed before their terms expire by the person or persons who appoint them.

Peter Douglas, the commission's executive director, said that appointment system was chosen to attempt to prevent any one ideology from dominating the commission.

But critics such as the Marine Forests Society say the appointment system makes the commission a legislative body exercising legislative, judicial and executive powers in violation of the separation of powers clause.

Kobayashi agreed, noting that the commission can issue rules and regulations as well as building permits and cease-and-desist orders and accept grants, appropriations and contributions.

``The judicial and executive powers that it exercises are not incidental to the law making power,'' he said. ``They are not properly under the jurisdiction of the Legislature.''

But Barbieri said the California Constitution envisions the Legislature making appointments to executive branch agencies like the Coastal Commission.

Out of about 136 various boards and commissions the governor makes a majority of the appointments to only 42 of them, he said.

Zumbrun said questioning of the two attorneys by a three-member panel of the 3rd District Court of Appeal indicated that at the very least the court would strike down the portion of the law that allows coastal commissioners to be removed before their terms expire.

Douglas said if that's the only finding, then commissioners would just serve fixed, two-year terms. But a broader ruling striking down the entire appointment process would require legislation or another coastal initiative to correct the problem.

He said he assumes that if the court issues that broader ruling and it's upheld by the state Supreme Court the courts would provide enough lead time to make those corrections and would not issue a ruling jeopardizing past commission decisions.

``It would be chaos otherwise,'' he said. ``My guess is they are not going to visit chaos on the state of California.''

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On the Net: www.coastal.ca.gov and www.marinehabitat.org

(Copyright 2002 by The Associated Press. All Rights Reserved.)