Coastal case set to begin

Andrew Edwards

The attorney representing the Newport Beach nonprofit in its battle

against the California Coastal Commission said the legal remedy

sought by his client would strip away the commission’s powers to

issue or deny coastal development permits.

“The Coastal Commission cannot be involved in the implication of

laws, because it’s a legislative commission controlled by the

legislature,” attorney Ronald Zumbrun said.

Zumbrun is representing Rodolphe Streichenberger’s Marine Forests

Society, a nonprofit group that filed suit against the Coastal

Commission in 2000.

The nonprofit claimed that since eight of the commission’s 12

members are appointed by the legislature, the body violates the

constitutional principal of separation of powers by enforcing the

Coastal Act, an executive function.

Streichenberger won his case, and again was victorious in 2002

when a state appeals court ruled in his favor. Oral arguments before

the state Supreme Court are scheduled to begin Wednesday.

If Streichenberger wins again, Zumbrun said the Coastal Commission

would be able to issue broad regulations consistent with the Coastal

Act but lose its power over individual projects.

Upholding the appellate court’s decision could also open the

floodgates to future lawsuits.

Zumbrun said if the Supreme Court finds the Coastal Commission did

not have proper jurisdiction to make its previous decisions, courts

would have to determine whether to allow litigation to reverse

previous commission decisions.

“The courts can decide what can be overturned and can’t be

challenged,” Zumbrun said.

However, law professors at Whittier Law School doubted the state’s

highest court would issue a ruling that could have a sweeping impact

on coastal policy.

“I think the Supreme Court will be loathe to uphold the decision

in its current form,” visiting assistant law professor Kenneth Agran

said.

Agran, who primarily studies the federal judiciary, suggested the

state Supreme Court could take a middle road by evaluating

interactions between the Coastal Commission and the legislature.

The appellate court ruled the commission was unconstitutional on

the basis of the body’s structure, but Agran said the state Supreme

Court may focus on whether legislators can control the commission.

The process for appointing Coastal Commissioners changed after the

appellate court sided with the Marine Forests Society. In 2003, Gov.

Gray Davis signed a law giving four-year terms to commissioners

appointed by the legislature, who previously could have been removed

at will.

The law was a welcome reform, Coastal Commissioner Toni Iseman

said. Iseman said legislators can try to influence commissioners’

decisions but can’t fire anyone over their positions.

“The appointing agent can call as many times as they like, but

they can’t give you the hook,” Iseman said.

Newport Beach’s Judy Rosener, a former member of the Coastal

Commission, said officials would appoint members they expected to

agree with but attributed that dynamic to basic politics.

Rosener said she served on the commission from 1973 to 1981 and did not know of any commissioners being removed because legislators

disagreed with their actions.

When Assembly Speaker Willie Brown ousted her from the commission,

Rosener said she was not given a specific reason why she was told to

leave. She also said she never met the legislators who appointed her

-- George Moscone and Leo McCarthy.

If the state’s highest court finds the Coastal Commission’s

structure is unconstitutional, the ruling would not necessarily

invalidate past decisions, Whittier Law School professor David

Treiman said.

“They usually don’t do it completely retroactively,” he said.

One possibility, Treiman speculated, is that the court could issue

what he called a prospective ruling. In this situation, the

commission could lose power to make future decisions or be given a

grace period during which lawmakers could restructure the body.