In January 2003, in Marine Forests Society v. California Coastal Commission, the California Court of Appeals ruled that the California Coastal Commission's appointment structure violates the California state constitution's separation of powers clause. (1) The plaintiff, Marine Forests Society (MFS), had built an experimental reef on the floor of the Newport Harbor. The California Coastal Commission (hereinafter "Commission") notified the MFS that it intended to commence cease and desist proceedings against it. The MFS brought suit to enjoin the Commission, arguing that the Commission's appointment structure was unconstitutional and therefore, that the Commission did not have the authority to issue the order. (2) The appellate court agreed with the MFS. On April 9, 2003, the Supreme Court of California agreed to review this case. (3) If the California Supreme Court upholds the ruling of unconstitutionality, it will then have to decide whether such a ruling will retroactively invalidate past and pending decisions of the Commission. (4) Such a retroactive application of a ruling of unconstitutionality would cause uncertainty and disarray for cities and property owners who have relied on Commission decisions over the past twenty-seven years.
The doctrine of retroactivity has gone through various incarnations at both the state and the federal levels over the past two hundred years, so it is not obvious which approach the court will use in this case. In addition to having a choice of approaches to retroactivity of judicial decisions, the court could choose to use the de facto officer doctrine and uphold past decisions of commissioners because they were de facto officers at the time they made the decisions. The purpose of this Note is to navigate the case law from California courts and from the United States Supreme Court in an attempt to determine whether the California Supreme Court will make retroactive a ruling of unconstitutionality in the MFS case.
This Note will first give a brief background on the Commission and the MFS case. It will then examine the history of the retroactivity and de facto officer doctrines at both the United States and California Supreme Court levels. Given the existing history of retroactivity, the Note will then explore the factors that the California Supreme Court will consider in reaching a decision, and the limiting effect of res judicata and statutes of limitations on retroactive decisions. Finally, the Note will examine whether the court would use the de facto officer. This Note concludes that if the California Supreme Court upholds the ruling of unconstitutionality, it will not invoke the de facto officer doctrine, but will choose instead to make its decision non-retroactive.
A. California Coastal Commission: History, Number and Importance of Decisions
The California Coastal Commission was first created by voter initiative in 1972 (5) and later made permanent by the California Coastal Act of 1976. (6) The Commission's duties include reviewing and certifying the programs of local governments for compliance with the Coastal Act, granting and denying permits for development, requiring property owners to offer easements for public beach access, and issuing cease and desist orders. (7) In its twenty-seven years, the Commission has made over 100,000 decisions relating to development permits. (8) As of October 1, 2003, there were twenty-three appeals of Commission decisions pending review in trial and appellate courts in California. (9) Several of the cases pending before the trial courts were brought after the appellate court's decision in Marine Forests Society but involve appeals of offers to dedicate that were finalized many years ago. (10) These decisions will be blocked by the Coastal Act's statute of limitations. Only two cases currently pending reached the appeals court before Marine Forests Society was decided. …