Court will decide group’s legality

Andrew Edwards

The seven justices of the state Supreme Court weighed arguments

Wednesday about whether the California Coastal Commission should be

declared unconstitutional, which could open to challenge nearly three

decades of decisions about coastal development.

The crux of the case -- filed in 2000 by Rodolphe Streichenberger,

founder of the Newport Beach-based Marine Forests Society -- is

whether the commission’s structure is legal.

Streichenberger and his attorney Ronald Zumbrun have argued that

the body violates the state Constitution’s separation of powers. They

say it exercises executive powers over development permits, while

eight of the commission’s 12 voting members are appointed by the

legislature. A state appellate court sided with Streichenberger and

Zumbrun in 2002 after they won their first case in Sacramento County

Superior Court.

The Supreme Court has 90 days to reach a decision.

During Wednesday’s session, justices peppered attorneys with

questions, asking both sides to justify their positions according to

the state constitution and previous court decisions. Each side had 30

minutes to make its case.

Justices began by hearing arguments by state Deputy Atty. General

Joe Barbieri, who represented the Coastal Commission. Barbieri

contended that the Legislature, not the executive branch, has always

had the bulk of power over appointments to state agencies.

Justice Marvin Baxter asked Barbieri if the Legislature could pass

laws giving legislators exclusive control over appointments to all

state boards and commissions. He posed the question as a hypothetical

situation in which a recalled governor and legislators would agree to

new rules in order to take appointment powers away from the incoming

governor.

Barbieri responded that under the state Constitution, legislators

could take exclusive control of appointments, though such a move

would be unlikely in a hypothetical world or the real one.

“That would be possible in theory but doesn’t happen in practice,”

Barbieri said.

Though the Legislature, in Barbieri’s analysis, would have power

to seize complete control over appointments, the political cost of

appearing heavy handed would keep them in check, even in an extreme

situation.

In normal times, the governor’s veto could prevent legislators

from increasing powers over appointments.

After Streichenberger and Zumbrun won their second court case, the

Legislature in 2003 altered the commission’s structure to give

legislative appointees fixed, four-year terms. Zumbrun argued that

legislators could control coastal commissioners under the current

format, contending that commissioners wanting another term would act

like politicians seeking reelection.

“As they approach the end of their term, they’re trying to please

that appointing power,” Zumbrun said.

Four commissioners are appointed by the governor, four by the

Senate Rules Committee and four by the Assembly Speaker. Because

legislators’ time in office can be shorter than that of the

commissioners they appoint, Chief Justice Ronald George said he

doubted the Legislature could control the commission.

“Your argument loses impact in the face of term limits,” George

said.

During a brief rebuttal, Barbieri argued that since coastal

commissioners are required to make decisions based on the Coastal Act

and evidence, it’s wrong to assume commissioners are held in thrall

by the Legislature.

“If they’re going to do what they’re asked to do, what they’re

sworn to do, they’re going to follow the law,” Barbieri said.

George and Justice Joyce Kennard asked Zumbrun why California’s

executive branch should take interest in coastal land-use policies

since those issues were not a historic function of the executive

branch before the Coastal Act made the Coastal Commission permanent

in 1976.

“The executive has a core function of enforcing the laws the

Legislature passes,” Zumbrun said.

Streichenberger’s Marine Forests Society started building a reef

from tires and plastic materials in 1987 near Newport Pier. In 1993,

the Coastal Commission told Streichenberger the project needed a

permit and eventually issued a cease-and-desist order against the

reef project. Streichenberger first filed a lawsuit in 2000.