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California Supreme Court Upholds Constitutionality of Coastal Commission


On June 23, 2005, in a much anticipated decision, the California Supreme Court unanimously upheld the constitutionality of the California Coastal Commission.  The Court found that the Commission does not violate the State’s constitutional separation of powers, thereby overturning two lower court decisions that held the agency did not have enough autonomy.  See Marine Forests Soc’y v. California Coastal Comm’n, 36 Cal. 4th 1 (2005).  The Court’s decision has a direct impact on land along California’s 1,100-mile coast, over which the Commission has exercised broad powers to approve local land use plans and oversee development since its creation in 1976.


At issue in Marine Forests was whether an agency that has the executive power to enforce the California Coastal Act can legally operate with eight legislative appointees among its twelve voting members (the other four voting members are appointed by the Governor).  See Marine Forests, 36 Cal. 4th at 13 (citing Cal. Pub. Res. Code § 30301(e)-(f) (providing, at the time of the commencement of the action, that all members of the Commission were to serve two-year terms, were eligible for reappointment to succeeding two-year terms, and were removable throughout their term in office at the pleasure of their appointing authority)).


In 2003, the California Court of Appeal in Sacramento held that the Commission was "an unconstitutional abuse of authority" because state legislators had the power to appoint and dismiss members:  "The flaw is that the unfettered power to remove the majority of the Commission’s voting members, and to replace them with others, if they act in a manner disfavored by the Senate Committee on Rules and the Speaker of the Assembly[,] makes those Commission members subservient to the Legislature."  Marine Forests Soc’y v. California Coastal Comm’n, 104 Cal. App. 4th 1232, 1236 (2002).  In response to the Court of Appeal decision, and in an effort to reach a compromise, the Coastal Act was amended, giving Commission members appointed by the Legislature four-year terms and providing that the legislative appointees are not removable at the pleasure of such member’s appointing authority, while retaining the gubernatorial appointees’ two-year terms and the governor’s ability to remove his or her appointees from office.  See Marine Forests, 36 Cal. 4th at 14 (citing §§ 30301(e)-(f), 30312(a)(1)-(2), & 30312(b)(1)-(2)).


Although the parties initially focused the bulk of their briefing on the question of the validity of the statutory scheme in effect at the time the action was initiated, the Court found that the resolution of the appeal would turn on the validity of the current statutory scheme, as amended.  After resolving this threshold issue, the Court went on to hold that the current statutory provisions governing the composition of the Commission do not violate the separation of powers clause of the California Constitution.  Marine Forests, 36 Cal. 4th at 14.


The separation of powers clause establishes the three powers of California’s government:  the legislative, executive, and judicial.  The separation of powers clause also provides that persons charged with the exercise of one power may not exercise either of the others except as permitted by the California Constitution itself.  See Marine Forests, 36 Cal. 4th at 24 (quoting Article III, Section 3 of the California Constitution).  The Coastal Act authorizes the Commission to perform a variety of governmental functions, some of which can be generally characterized as executive, some quasi-legislative, and some quasi-judicial.  For instance, the Commission performs an executive function when it carries out programs and policies established by the Legislature; the Commission is also included for administrative purposes in the Resources Agency, a part of the State’s executive branch.  The Commission performs a quasi-legislative function when it engages in rulemaking through the adoption of regulations.  Finally, the Commission performs a quasi-judicial function when it determines the outcome of applications for coastal development permits, when it reviews the validity of a local government’s coastal program, and when it issues cease and desist orders with regard to unauthorized development."  Id. at 25-26 (citations omitted).[1]


In order to address the Court of Appeal’s holding that the prior statutory scheme was unconstitutional, because of the substantial number of past administrative matters that potentially could be affected by the litigation, and because the question had been extensively briefed, the Court went on to clarify, at the request of the parties, the status of the numerous actions that were taken by the Commission during the time period in which the prior statutes were in effect.  Marine Forests, 36 Cal. 4th at 52.  The Court noted that the pre-2003 version of the Coastal Act posed a much more serious separation of powers question than the current version.  However, the Court held that there was no need to determine the validity of the earlier version in order to clarify the status of the actions taken by the Commission when its members were selected and served pursuant to the terms of the earlier version.  Even if it were assumed, arguendo, that the earlier version violated the separation of powers clause, the Court held that it could not properly set aside past actions of the Commission on that ground.  The Court noted several reasons why such a ruling would be improper:  First, the applicable statute of limitations would bar a present challenge to most of the prior actions of the Commission, and a judicial decision that found the earlier version unconstitutional would not recommence the statute of limitations with regard to past actions of the Commission.  Second, with regard to those actions of the Commission that had been timely challenged and that had proceeded to a final judicial decision, res judicata principles would preclude a renewed challenge.  Third, even with regard to cases in which a timely separation of powers challenge to the Commission’s composition had been raised and that remained pending either before the Commission or the courts, the "de facto officer" doctrine – applicable when the officer in question acts under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such – precludes setting aside prior actions of the Commission on the ground that the appointment of the commissioners who participated in the decision may be vulnerable to constitutional challenge.  Id. at 53-55 (citations omitted).


In sum, the California Supreme Court left in place the decisions made by the Coastal Commission under the pre-2003 appointment mechanism, without reaching the question of whether that mechanism violated California’s separation of powers doctrine, and explicitly upheld the constitutionality of the post-2003 appointment mechanism.  Since its inception in 1976, the Commission has been praised by its advocates and denounced by its critics.  Moving forward, the Commission will continue to play a central role in the management of the State’s coasts and, more generally, as part of California’s regulatory landscape.

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