Guest Contributor
James S. Burling

James S. Burling is a Principal Attorney at Pacific Legal Foundation [go to Guest index]

Tyrants in the Dock
Court May Finally Stop the Legislature’s Coastal Commission Power Grab...
[James S. Burling] 4/25/05

When the nonprofit Marine Forests Society and its volunteers created artificial reefs off the Balboa Peninsula in Newport Beach in 1993, they were hoping to create a new home for a variety of fish populations. Little did they know they were also setting the stage for a constitutional battle that could change the shape of California law and politics for decades.

Over time, their experiment worked and the fish thrived. By all rights, this volunteer organization, which had secured local permits for the artificial reef, should have received praise from California officials. Instead, it was greeted by a cease-and-desist order from the California Coastal Commission.

Why halt something that proved to be a success?

Despite the benefits from the artificial reefs, the Coastal Commission would rather destroy that which it cannot control. Because it hadn’t granted permits to the group, the commission shut the Marine Forests Society down. The society soon learned of the extraordinary and unconstitutional power of the Coastal Commission — as policy-maker, enforcer and judge.

State legislators created the commission with the power of an executive agency, but they made a serious error when they granted themselves the power to appoint a majority of commission members. On April 6, the California Supreme Court will hear arguments to once and for all force the Legislature to live by the state Constitution — which clearly sets out a separation of powers between government’s executive and legislative branches.

While such a decision may seem esoteric, in this case it will restore sanity to a process that affects millions of Californians who live along our coastline.

If the governor appointed a majority of the Coastal Commission members, Californians would have an elected official of the executive branch to hold accountable for the commissioners’ actions. Even better, if the power to regulate the coast were put back in the hands of local and county governments, with the commission playing an advisory role, the people of California could once again control their own destinies along the coast — and directly vote for or against the decision-makers.

But, instead, the agency is packed with appointees from a handful of power brokers in the Legislature. Under California’s system of separation of powers, a legislative body can set policy, but it cannot exercise executive functions. In this case, the speaker of the Assembly and the Senate Rules Committee are effectively running the Coastal Commission, controlling two-thirds of its appointees and therefore nearly every development, including home renovations, along 1,000 miles of California coastline.

Our founding fathers argued for a clear separation of powers, understanding that, as the 17th-century French philosopher Baron de Montesquieu stated, “When the legislative and executive powers are united in the same person or body there can be no liberty.”

In writing the U.S. Constitution, James Madison remarked, “The accumulation of all powers, legislative, executive, and judiciary in the same hands may justly be pronounced the very definition of tyranny.”

Unfortunately, tyranny is what Californians dealing with the Coastal Commission have faced. Anyone wanting to do anything along the coastline of California is forced to submit to the Legislature through its appointees on the commission.

California courts that have reviewed this toxic stew of combined powers have called it unconstitutional. And the practical result of this blending of powers since the commission was established in 1976 has been dismal. Controversy over this agency is legendary, leading to frequent rebukes by the courts. In short, the Coastal Commission has been an experiment in unaccountable bureaucracy, regularly harming Californians and depriving them of the use of their property.

Yet even as its court losses mount, the Coastal Commission marches on, using taxpayer money to appeal at every level to keep a clearly unconstitutional entity afloat.

If the California Supreme Court upholds lower court decisions, this constitutional mess — and the multitude of problems it has caused - will finally be put to an end, thanks to a group of people who just wanted to restore habitat for some fish off Newport Beach.

James S. Burling is a Principal Attorney at Pacific Legal Foundation which submitted a friend of the court brief in support of the Marine Forests Society at the California Supreme Court. This commentary appeared in the April 6 issue of the Orange Country Register. CRO

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