Constitutional Law
May 31, 2001
Checks and Balances
On May 8, Judge Charles C. Kobayashi ruled in Marine Forests Society v. California Coastal Commission, 00AS00567 (Sacramento Super. Ct., filed Jan. 31, 2000), that the California Coastal Commission is unconstitutionally structured.
On May 8, Judge Charles C. Kobayashi ruled in Marine Forests Society v. California Coastal Commission, 00AS00567 (Sacramento Super. Ct., filed Jan. 31, 2000), that the California Coastal Commission is unconstitutionally structured. The court held that because two-thirds of the commissioners are appointed by, and serve at the will of, the Legislature, the commission is a legislative body and, therefore, cannot perform executive-branch functions, such as issuing permits and cease-and-desist orders and performing similar regulatory functions.
The case was brought by a highly reputable research group, the Marine Forests Society of Newport Beach, and its president, Rodolphe Streichenberger. They are dedicated to the successful creation of marine forests to replace lost marine habitat. The Marine Forests Society challenged the commission's authority to eliminate the society's environmental research off Newport Beach.
Kobayashi held that "a separation of powers violation occurs where the exercise of the power of one branch of government defeats or materially impairs the authority of another branch." He also held that "[t]he Coastal Commission has wide powers, only a limited number of which are subject to limited judicial review. Purportedly an executive agency, the Commission is answerable to no one in the Executive. The members are not directly answerable to the voters. The legislature has retained for itself the power of appointment and dismissal at its pleasure. The Coastal Commission is effectively a legislative agency."
Legal scholars said that this ruling presents a significant legal challenge to the commission.
"It's a serious challenge to the commission that may well be upheld on appeal," Stephen J. Barnett, professor at the University of California, Boalt Hall, said.
J. Clark Kelso, professor at McGeorge School of Law, believes the case raises a "strong argument" that the commission's membership violates the California Constitution.
"It represents a tremendously important issue," Kelso said.
The Separation of Powers Clause of the California Constitution (Article III, Section 3) is deeply rooted in our nation's history and is the centerpiece of our form of government. The California Supreme Court recently addressed this issue in Obrien v. Jones, 23 Cal.4th 40 (2000).
The Obrien court was faced with the Legislature revamping of the seven-member State Bar Court, which presides over attorney discipline proceedings. This legislation was challenged on the grounds that the Legislature had granted to itself the ability to appoint two of the judges, which violates the Separation of Powers Clause.
The court, in a 4-3 decision, upheld this legislation, acknowledging that all bar appointees must be evaluated by a nomination committee named by the Supreme Court, and only those found qualified would be eligible for appointment. All three judges of the State Bar Court Review Department continue to be appointed by the Supreme Court, which also is the ultimate reviewer. The court felt that these veto and review powers were sufficient to avoid a violation of the Separation of Powers Clause.
Speaking for the Obrien court, Presiding Justice Ronald George stated, "[W]e conclude that the legislation here at issue ... does not defeat or materially impair our authority over the practice of law, and thus does not violate the separation of powers provision."
In her dissent, Justice Joyce Kennard stated, "The purpose of separation of powers is to protect individual liberty by preventing concentration of powers in the hands of any one individual or body. Among the three great departments or branches into which the state and the federal governments are divided - the legislative, executive, and judicial branches - the Framers of the federal Constitution were most apprehensive about the legislative branch. ... At the Philadelphia convention, James Madison explained it this way: '[E]xperience in all states has evinced a powerful tendency in the legislature to absorb all power into its vortex.' This was the real source of danger to the American [state] Constitutions; and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles."
The facts of the Marine Forests Society case are much different and pose a more extreme separation-of-powers issue. Many argued that the commission as presently constituted is out of control.
In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the U.S. Supreme Court scrutinized the commission's practice of requiring a dedication of private property as a condition of obtaining a coastal permit. Instead of evaluating the environmental impact of the project, the commission was selling permits to the highest bidder. The court declared this process "an out-and-out plan of extortion" that violated the Fifth Amendment. The commission is avoiding this ruling by inducing permit seekers to "voluntarily" propose such dedications - a questionable procedure.
In Healing v. California Coastal Commission, 22 Cal.App.4th 1158 (1994), the Court of Appeal described processing a land-use claim before the commission as an administrative "shell game" and a judicial "minefield." The property owner was required to gather and present to the government agency all evidence supporting a takings claim before knowing whether the agency would deny the application.
Describing the commission's procedures as "a long-term nightmare," the court stated, "It is in the nature of our work that we see many virtuoso performances in the theaters of bureaucracy but we confess a sort of perverse admiration for the Commission's role in this case. It has soared beyond both the ridiculous and the sublime. ... To state the Coastal Commission's position is to demonstrate its absurdity."
In a stinging rebuke of the commission, on Aug. 18, 2000, the Mendocino County Superior Court, in Smiley v. California Coastal Commission, CV78270 (Mendocino Super. Ct., filed March 13, 1998), invalidated almost all of the commission's hearing procedures. The commission's findings did not reflect the analytical route from evidence to findings, nor were the findings supported by specific facts.
The commission imposed unreasonable time constraints on witnesses. Some "were constrained to give up their right to speak by the time limit imposed, and a key witness at the first hearing had driven two full days round trip yet was given only one minute to speak while her testimony was rejected."
The Smiley court held that the commission's repeated interruption of the presentation for a "focus on the clock" appeared overbearing and distracting, thus interfering with the content and merit of the presentation. The court held the record did "not support a conclusion that adequate due process and objective, impartial consideration were given."
The deficiencies of the Smiley proceeding were repeated in Marine Forests Society. The society's research project is located on 10 acres 300 yards off the Balboa pier in Newport Beach. The worst and most irresponsible roadblock raised by the commission's staff was to allege that the Marine Forests Society "development is located in an area of degraded water quality and raises concerns regarding the marine life attracted to the area, and ultimate human consumption of contaminated fish and shellfish. By attracting and congregating fish in this area, the Marine Forests Society development increases the risk that unsuspecting recreational anglers may catch and consume fish contaminated with E. coli and other pathogens associated with sewage outfall."
This defamatory statement was released to the press by the commission's staff, causing great detriment to the Marine Forests Society. The actual facts are just the opposite. The commission's staff has presented no evidence that these waters are polluted or a threat to society. If they are, what are the commission and other public agencies doing about it? Why were the city of Newport Beach and the California Department of Fish and Game permits issued to the Society? What about the swimmers, surfers and fishermen regularly using these waters?
In fact, the Orange County Sanitation Districts took exception to the commission's staff comments. As usual, the staff comments were blindly adopted by the commission.
The commission and its staff are answerable to no one and are on a course not envisioned by the California Coastal Act or supported by California's Constitution. Property owners are hopeful that Kobayashi's ruling will result in true coastal protection that recognizes the rights of all Californians. While awaiting the commission's expected appeal, a legal cloud is hanging over commission activities.
The goal of the Marine Forests Society litigation is to ensure that either the commission remains a legislative agency making policy or that it is restructured as a part of the executive branch of government appointed by the governor. It is important that the commission become accountable for its actions and be subject to the same checks and balances applicable to all other governmental agencies. The purpose of the Separation of Powers Clause is to protect the people from overreaching government. Only in this way can California continue to protect its coast and protect against tyranny.
Ronald A. Zumbrun is managing attorney of The Zumbrun Law Firm, a Sacramento-based public-issues firm, which represents the Marine Forests Society in this action. He also represented the Nollans, Healings and Smileys in their actions against the commission.
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