A California Superior Court ruling a year ago was an incredible bombshell that should have had defenders of private property rights rejoicing and California environmentalists gnashing their teeth. Yet the decision, declaring unconstitutional the California Coastal Commission, received surprisingly little media coverage and sparked only muted celebration and outrage at the time.
The decision was treated as a bizarre quirk that would no doubt be overturned at the appellate court. The reaction shows just how far we've gone down the road of accepting as permanent even the most noxious government agencies.
To those unfamiliar with it, the Coastal Commission is California's state agency that oversees the development of property along the coast, from the Oregon to Mexico border. Its authority over property, private and public, extends from three miles out to sea to as much as five miles inland, although in certain areas its authority only goes a few hundred feet east of the shoreline.
Within these Rhode Island-sized boundaries, including some of California's most sought-after and populated areas, the commission has near-dictatorial powers to approve, reject, or reform any development proposal. Created by initiative in 1972 and affirmed by legislative edict four years later, the commission has been as controversial as one would expect from a government agency with unchecked power. Those who share its values, goals, and messianic sense of purpose adore it and see it as a template for "guiding" development throughout the state. Those who cherish property rights and freedom despise it, as do many local government officials frustrated by its ability to trump local decisions. (Even "liberal" Malibu residents battled the commission after it trumped a local plan for regulating the coast in order to impose one of its own liking.)
Yet the Sacramento Superior Court's ruling-based mainly on separation-of-powers issues-was largely shrugged off. Then a funny thing happened. Last December the California Court of Appeal in the Sacramento district upheld the decision. Yes, the California Coastal Commission is unconstitutional, and many people now believe the decision will withstand the likely appeal to the state's supreme court.
The courts ruled that the makeup of the commission formed the heart of its constitutional problem. It has 12 members, with four selected by the governor, four by the speaker of the Assembly, and four from the Senate Rules Committee. All members can be removed for any reason at any time by those who appointed them.
"The flaw is that the unfettered power to remove the majority of the commission's voting members, and to replace them with others, if they act in a manner disfavored by the Senate Committee on Rules and the Speaker of the Assembly makes those commission members subservient to the Legislature," the appellate court ruled. "In a practical sense, this unrestrained power to replace a majority of the commission's voting members, and the presumed desire of those members to avoid being removed from their positions, allows the legislative branch not only to declare the law but also to control the commission's execution of the law and exercise of its quasi-judicial powers."
Environmentalists and legislature Democrats who are enamored with the commission can't understand what the fuss is about. They view the makeup of the commission as a clever means to share powers among different branches of government, and claim the court's ruling is an easily fixed, technical one.
But that "technical" problem goes to the heart of the American system of government. Legislative branches of government write laws, executive branches enforce them, and judicial branches adjudicate disagreements. When one agency has all three functions it is tyrannical. That was the view of America's founders, if not the current California Legislature.
If nothing else, the Coastal Commission is a tyrannical agency. …