And the envelope please … the Supreme Court hears Coastal v. Marine Forests


From the Publisher/Arnold G. York

The line waiting to get into the courtroom ran all the way down the corridor.

The case of the Marine Forests Society v. the California Coastal Commission was set for oral argument last week on April the 6, at 2 p.m. precisely. The case had been working its way throughout the legal system for several years and a great deal was at stake relating to the power of the California Coastal Commission.

Following two decisions in the lower courts-the trial court and the Court of Appeal-both of which went against the Coastal Commission, which in itself was a very rare event, the California Supreme Court agreed to hear the case and actually gave the parties some questions to consider:

1. Was there a constitutional problem with the way the Coastal Commission members were appointed with the legislature having two-thirds of the appointments?

2. Did the new law passed by the Legislature to try and fix the constitutional problem do the job or not?

3. If there was still some problem, what was the remedy? In others words, what should the court do to fix it?

The case was rapidly approaching the day of decision and this paneled room was where the final battle would be fought.

Walking into the courtroom of the California Supreme Court, you are entering a different world. It’s very detached from the noise and the bustle of most courtrooms. It’s quiet and cerebral, and everyone is very polite. It’s very different than the real world we live in day to day. It doesn’t matter who you are. It’s all a little intimidating. Whatever case brings you there, however hot the emotions attached to the case, inside that courtroom you sense that the justices look at the world differently, and some of the things that appear very important outside that courtroom may carry little weight inside the courtroom.

The seven justices filed in, Chief Justice George called the case and the deputy attorney general arguing for the state rose and began to speak. He never got to finish the first sentence before the first question came flying at him from one of the justices.

The courtroom was packed. We were all there because the case was going to directly impact our lives. It wasn’t just Malibu that was there. Cities and counties along the coast, homeowners and businesses, environmentalists and farmers, anyone living or working along the coast was going to be impacted by this decision.

For many years, any judicial challenges to the power of the Coastal Commission had been slapped down by the courts, but this time many felt it might be different. This time, when the challenge was first raised that the Coastal Commission was unconstitutional because of the way it was made up, the trial court in Sacramento actually agreed. The trial court said that, even though the Coastal Commission was an executive agency, two thirds of its membership served at the pleasure of the Legislature and could be removed at any time by the legislative leaders who appointed them, and the judge found that wanting. Those arguments had been raised before, but this was the first time a court agreed with them. The trial court’s decision was, as you would expect, appealed to the Court of Appeal, and much to the amazement of many, the Court of Appeal agreed with the trial court and the Coastal Commission lost again.

Immediately, the environmental lobby swung into action and the California Legislature passed a new law to try to fix the problem that had obviously caused the lower courts’ concern. Under the new law, the Legislature would still get to make two-thirds of the Coastal Commission appointments, but, instead of them serving at will, they would serve for fixed terms. This supposedly would eliminate the problem of everyday legislative influence over the commissioners, which is what appeared to particularly bother the lower courts.

Watching an oral argument and trying to psych out how the justices are going to vote, is a little like trying to read tea leaves, unless you know the justices very well. I must confess I don’t. Some justices are right out front and it’s clear how they’re going to vote. Some say very little and are a cipher. Some, you’re simply not sure because their questions are bouncing from one side to the other. They may really be uncertain, or they may alternatively be trying to influence their colleagues by using the attorneys as a conduit to move their colleagues in a particular direction.

After watching them argue back and forth for an hour, my gut tells me that they’re not going to do anything radical. They appeared to me to be petty cautious and, perhaps, as some have suggested, they didn’t want to take the Legislature head on and declare something the Legislature did as unconstitutional. Several justices seemed to indicate by the tone of their questioning that the legislative correction might have been enough of a correction. If I had to bet, I think they might open the door, but just a crack, with nothing really dramatic, which I suspects means good news for the Coastal Commission and bad news for the challengers.

We should have an answer in about three months.