Procedures of California Coastal Commission Ruled Unconstitutional

Marine Forest Society v. California Coastal Commission, 128 Cal. Rptr. 2d 869 (Cal. Ct. App. 2002).

Stephanie Showalter, J.D., M.S.E.L.

In 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 California coast.

The Commission
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 Commission’s 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 The 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 Appeal
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.

Separation of Powers
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 agency’s 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 Court’s 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 Legislature’s use of its appointment or removal authority. The United States Supreme Court has held that an agency’s 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 Commission’s 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

Conclusion
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 Court.

ENDNOTES
1. Cal. Pub. Res. Code § 30312 (2002).
2. Marine Forest Society homepage, http://www.marinehabitat.org (last visited Feb. 14, 2003).
3. Marine Forest Soc’y v. Cal. Coastal Comm’n, 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 Soc’y, 128 Cal. Rptr. 2d at 881 (citing Bowsher v. Synar, 478 U.S. 714 (1986)).
7. Id. at 882.