Why is Malibu being penalized?


From the Publisher/Arnold G. York

We’ve just learned that Malibu lost its lawsuit against the California Coastal Commission in the Court of Appeal.

For months and months now, we’ve been waiting anxiously to see what the Court of Appeal would do with the Malibu Local Coastal Program, which had been jammed down Malibu’s throat by the Coastal Commission. We had little input into this document. It was essentially the plan of Coastal Commission bureaucrats, and they handed it to us on a take it or go to hell basis. We argued, we fumed, we balked and in the end, after long and contentious hearings, and after paying the appropriate lip service to us, they simply ignored us and did what they intended anyway.

The people of Malibu were, generally speaking, outraged and felt very beat up, with some justification in my opinion. And then, 2,400-plus Malibu voters signed a referendum petition to put the Malibu Local Coastal Program onto the ballot for a vote of the people.

All sides appeared to agree that if the city of Malibu had passed the Malibu LCP, the people of Malibu would have had a right of referendum. However, the real legal question was what happens when a state agency, the Coastal Commission, votes in the Malibu LCP under a special act of the Legislature that empowers them to do so. Do the people of Malibu still have referendum rights or not? No one knew the answer.

Once the referendum was filed, everything just stopped. The Coastal Commission refused to issue coastal permits because it said that was now Malibu’s job. And Malibu said it couldn’t issue permits because once the referendum was filed, its hands were tied. In effect, we had an unofficial moratorium. Then, in classic Southern California tradition, everybody sued everybody else, and everybody’s PR people let all the press know what unreasonable rats the other side really was.

But behind all the posturing, and the egos and political theater that accompanies these kinds of political battles, there were some serious questions the court could have addressed— should have addressed-and ultimately didn’t.

Malibu lost.

Now let me reduce the 11-page court decision to one line. Its decision was, ” The state outranks the city, and if you don’t think it’s fair, well tough!”

The thing that I find most disappointing is that this Court of Appeal, whose three justices are all very bright, would come up with an opinion that is so intellectually shallow. All this time for what, a decision that could have been put on a rubber stamp? You could create a computer program to decide with this kind of meaningless analysis and save everyone a great deal of time and expense.

There were serious questions here.

Q. How much can a piece of legislation be directed at one particular city and not all the others?

A. Apparently, as much as you want as long as you list some reasons. So, unless the Legislature is moronic, pretty much any reason will suffice.

Q. How much authority can the Legislature delegate to an administrative agency?

A. Apparently, as much as it wants without limitation as long as there are some genuine legislative purposes.

This may sound innocuous, but it’s not. It’s what bureaucrats dream about when they sit by the fire at night. You cannot view this in a vacuum. We now have term limits so the legislators have less experience and less expertise. Their staffers tend to move with their legislators so the new staffers have less experience and less expertise.

Every day the Legislature delegates more and more of its job to administrative agencies with fewer and fewer limitations. The agencies, of course, love it, because in the absence of a major screw-up or a political revolt, they virtually operate unfettered.

Theoretically, the legislative committees supervise them, but the reality is that seldom happens. This case was most significant because it was about the limits of that unfettered discretion, and apparently the Court of Appeal simply didn’t give a damn.

Q. What happens to the people of Malibu? Don’t we have any rights of referendum? Why are we being penalized? Were we naughty or something?

A. This produced the most startling answer to me. The court, in its opinion in the final paragraph, wrote, “The voters of Malibu are not without recourse; however, to correct their disenfranchisement over the LCP, those remedies lie in the political not the judicial arena. The voters lost their right because their city leaders did not enact their own LCP.”

The word they didn’t use, because no self-respecting justice would ever utter it, is forfeiture. Now that word may not mean much to a layman, but to a lawyer it is definitely a no no, as they like to pompously say in a legion of cases. Forfeitures are looked upon with disfavor. Forfeiture is a penalty. If you commit a felony you forfeit your right to vote. Well, what did we, the people of Malibu do? Did we commit a felony? Did we offend the dignity of the Coastal Commission? Or were we just a minor annoyance and is that enough to forfeit our right to vote?

Apparently so, at least according to Presiding Justice Laurence D. Rubin and associate justices Paul Boland and Madeleine I. Flier.

Next week I’ll talk about what the decision really means and where we go from here.