The majesty of the law


From the Publisher/Arnold G. York

The four justices of the California Court of Appeal came into the room suddenly and took their seats behind the judge’s bench on the imposing, raised platform. The room is dark wood, under lit, quiet and conveys the impression that this is a serious place to do serious work. It reeks of furniture polish and the majesty of the law. If you wandered in off the street you might well harbor the illusion that this is a place where justice is done.

The case of the City of Malibu versus the California Coastal Commission, the first of the day’s agenda for oral argument, was called and the illusion for me quickly dissipated.

It’s not that the justices weren’t competent, because they were. The three justices who were hearing the case (the fourth sits it out) were extraordinarily bright and obviously aware of the issues before them, and they asked the lawyers some very difficult questions. The problem for me is that I’ve followed this battle between the Coastal Commission and Malibu from the get go. I have seen the crosses and the double-crosses, know the politicians and the people involved, and their ambitions and their faults. I have heard the lies, seen the trickery and the greed, and the ambitions. And here it all was in a courtroom, bloodless, abstract, with arcane points of the statutes being argued, having nothing to do with anything I had experienced in this multiyear battle.

The questions raised by the case are like a Bar Exam question or a final in graduate school of political science.

How much power can the Legislature delegate to an administrative agency?

This has been an increasingly more important question because term limits have had the undesirable impact of dummying down the Legislature, so they end up delegating more and more power and authority to agencies, like the Coastal Commission, to fill in the blanks.

Malibu says the Legislature can’t do this, at least to the extent that it has, because all the checks and balances are being eliminated in the Constitution and in the statutes. The people’s right of referendum is being eliminated and all this power is being handed to an administrative agency, un-elected, with fixed terms so it is answerable to no one but itself from which there is no appeal. Malibu says the Legislature is handing the right to control its own land use, which is an essential part of the purpose of local government, and handing it to a state agency for no good reason other than it perceives Malibu as a big pain in the ass, which, I must admit in all fairness, is probably true. However, the question is, is that reason enough to short-circuit and change the whole system? Malibu wants the court to look at the big picture, and if it does Malibu will probably win.

The state is in there arguing the small picture. There was a problem in Malibu. Malibu couldn’t agree on a Local Coastal Plan, and that 26 miles of coastline is a very valuable state resource. The Legislature knowing Malibu’s recent history, and being constantly barraged with phone calls from well-heeled Malibu movers and shakers, decided to try and get this thing out of its hair. So, when the Coastal Commission power brokers came in with a possible solution, it grabbed at it and gave the Coastal Commission the power to write Malibu’s LCP. Unfortunately, what the legislators failed to do was think it through very carefully because if they had, they might have put in some checks and balances. They didn’t and they kept AB988 short and sweet, and that said very little and implied a great deal, depending whom you ask.

The Court of Appeal judges are left with the somewhat difficult problem of trying to gleam what was implied from a statute that doesn’t tell them very much. And even though the judges will end up calling it statutory construction, it will really end up being statutory creation, because the truth is the Legislature avoided the tough calls and dumped the problem in their lap. They’ll also have to decide if it’s OK for the Legislature to pass a piece of legislation that will only impact one city. But to referend it would require a vote of all the voters of California, which is what the attorney general seemed to be arguing even though the Malibu LCP covers only Malibu. When this is all over, unless it goes to the California Supreme Court, which I’m sure it will, someone will decide if the people have a right of referendum on the Malibu LCP, or if they’re just sheep being led to the slaughter. And perhaps they’ll decide who, if anyone, is supposed to issue coastal permits, the absence of which have created chaos in Malibu.

A last thought. There is really a profound question involved. Can the Legislature just eliminate legal and constitutional protections by as simple a process as saying they don’t apply? Does the people’s right of referendum (the right to overrule a legislative act) just disappear if the Legislature assigns the power to create the law to one of its own agencies? There would be no question that, if the city of Malibu passed the Malibu LCP, we, the people of Malibu, would have a right to overturn that decision at the ballot box. If the Court of Appeal rules against Malibu, it will have lost that right, even though the plan becomes local Malibu law and the city has to enforce it. The reason the question is profound is because the United States Supreme Court is shortly going to be faced with similar questions. The Bush Administration has declared that people captured are enemy combatants or detainees as opposed to prisoners of war. It has also said that the U.S. Constitution doesn’t apply in such cases. In fact, the Administration says, the judiciary doesn’t even have the right of inquiry to the Executive Branch since national security is involved and the war powers belong to the president. It’s the same kind of question posed by the Coastal Commission versus Malibu case, and it goes to the very heart of whether the judiciary has the nerve to be truly independent in our society.

P.S.-I just got a flash from my son, Anthony, in Sacramento. The governor just made some new Coastal Commission appointments.

New appointees:

Meg Caldwell, attorney, director of the Environmental and Natural Resources Law and Policy Program at Stanford Law School.

Steve Kram, executive vice president, COO of the William Morris Agency Inc.

Bonnie Neeley, member of Humboldt County Board of Supervisors

All three are Republicans.

The fourth seat is still vacant.

Leaving the commission are Mary Nichols, former Resources Secretary; Cynthia McClain-Hill, attorney; John Woolley, member Board of Supervisors, Eureka.