of California Coastal Commission Ruled Unconstitutional
Forest Society v. California Coastal Commission, 128 Cal. Rptr.
2d 869 (Cal. Ct. App. 2002).
Showalter, J.D., M.S.E.L.
December, 2002, a California court of appeal held that the appointment
structure of the California Coastal Commission violates the separation
of powers clause in the California Constitution. The court enjoined
the Commission from granting or denying permits for coastal development
and from issuing cease and desist orders. This decision leaves the California
Coastal Commission powerless to regulate or stop development along the
Created in 1972, the California Coastal Commission (Commission) is the
primary agency responsible for the implementation of the California
Coastal Act of 1976. The Coastal Act governs land use planning along
the California coast and contains provisions on public access and recreation,
coastal resources, and residential and industrial development. The Commissions
12 voting members are appointed as follows: 4 by the Governor of California,
4 by the Speaker of the Assembly, and 4 by the Senate Committee on Rules.
Members appointed by the above authorities serve two-year terms at
the pleasure of their appointing authority.1
Commission is a permanent body which acts by majority vote. It is empowered
to take a variety of actions to ensure the implementation of the Coastal
Act, including promulgating regulations, hearing applications for coastal
permits, and issuing cease and desist orders to halt illegal development.
The Marine Forest Society (Society) is a nonprofit corporation involved
in an experimental project to create marine forests. The object
and purpose of the Marine Forest Society is to discover techniques and
economics facilitating the creation of large scale marine forests where
seaweed and shellfish growing on sandy bottoms will replace the lost
marine habitats.2 The
Society planted its first forest, created from a mix of materials, including
tires, plastic jugs, and concrete blocks, in 1986. In 1993, the Commission
determined that the activities of the Society were a coastal zone development
project requiring a permit under the Coastal Act. The Society applied
for an after-the-fact permit which was denied. In October 1999, the
Commission issued a cease and desist order for the experimental site.
The Society filed a lawsuit against the Commission for injunctive relief
from the cease and desist order. The Society argued that the Commission
lacked the authority to issue such orders as the mechanism by
which the majority of its voting members are appointed violates the
separation of powers doctrine.3
The trial court agreed with the Society and issued an injunction preventing
the Commission from granting or denying coastal permits and issuing
cease and desist orders. The Commission appealed the injunction.
The California Constitution states the powers of state government
are legislative, executive, and judicial. Persons charged with the exercise
of one power may not exercise either of the others except as permitted
by this Constitution.4
The separation of powers doctrine prevents one branch of government
from exercising control over the functions of another branch. The legislative
branch makes the laws while the executive branch executes the laws.
It is impermissible for the legislative branch to also execute the laws
it makes. The Society argued that the appointment structure of the Commission
allowed the Legislature to improperly exercise control over the execution
of the Coastal Act.
Administrative agencies, such as the Commission, are part of the executive
branch of government and they exercise executive powers. The powers
to adopt rules and regulations, conduct investigations, and review local
coastal programs are all executive in nature. The Commission also exercises
quasi-judicial powers by granting and denying permits and issuing cease
and desist orders. An administrative body may exercise such quasi-judicial
powers if incidental to, and reasonably necessary to accomplish, the
agencys executive mandate. These quasi-judicial powers are not
legislative powers, however, but executive powers exercised to assist
the agency in carrying out its executive functions.
In California, the Legislature has the authority to create new agencies
and, if the law creating the agency so prescribes, also the power to
appoint agency members. It is permissible for the appointees to be removable
at the will of the Legislature. If the appointment power is not prescribed
by law, it remains with the Governor. Although the Legislature can appoint
executive branch officers via an administrative agency and remove them
at will, this power is not unlimited. The appointment mechanism must
contain adequate safeguards to ensure that the inherent authority of
the executive branch agency is not materially infringed upon by the
appointing authority. For example, an appointment mechanism allowing
the Governor and the California Legislature to appoint three of the
five judges of the State Bar Hearing Department did not violate the
separation of powers doctrine because the appointees had to be evaluated
in accordance to California Supreme Court rules and found qualified
by a committee appointed by the Supreme Court.5 The judges were also subject to discipline by the Supreme Court and
their findings were reviewable by a Supreme Court committee. These safeguards
ensured that the Supreme Courts authority over the judicial branch
was not impaired by the appointment mechanism.
Such safeguards are not present in the appointment mechanism for the
Commission. The Court of Appeals determined that the appointment mechanism
for the Commission violates the separation of powers doctrine because
it gives the Legislature almost complete discretion to appoint 8 of
the 12 members. These Commissioners serve at the pleasure of the Legislature
and can be removed at any time for any reason, even without cause. Furthermore,
the Coastal Act contains no procedural safeguards to protect against
the Legislatures use of its appointment or removal authority.
The United States Supreme Court has held that an agencys executive
power is impermissibly interfered with if a majority of the voting members
of the agency are removable at the pleasure of the legislative branch.6 The majority of the Commissions members are removable at the pleasure
of the Legislature. The presumed desire of those members to avoid
being removed from their positions creates an improper subservience
to the legislative branch of government.7
Because the mechanism for appointing members to the Commission violates
the separation of powers doctrine, the California Court of Appeals affirmed
the decision of the trial court and reinstated the injunction. The Commission
is, therefore, prohibited from granting, denying, or conditioning any
coastal development permits and issuing cease and desist orders. Because
of the ramifications of this opinion for coastal planning in California,
the Commission will likely appeal this decision to the California Supreme
1. Cal. Pub. Res. Code § 30312 (2002).
2. Marine Forest Society homepage, http://www.marinehabitat.org (last
visited Feb. 14, 2003).
3. Marine Forest Socy v. Cal. Coastal Commn, 128
Cal. Rptr. 2d 869, 874 (Cal. Ct. App. 2002).
4. Cal. Const. art. III, § 3.
5. Obrien v. Jones, 96 Cal. Rptr. 2d 205 (Cal. 2002).
6. Marine Forest Socy, 128 Cal. Rptr. 2d at 881 (citing Bowsher
v. Synar, 478 U.S. 714 (1986)).