From the Publisher/Arnold G. York
As of last Thursday the Court of Appeal’s decision in the case of the Marine Forests Society vs. the California Coastal Commission, which declared the Coastal Commission unconstitutional, became final. So I guess you could say that, as of the morning of Dec. 31, 2002, the California Coastal Commission no longer existed. Now, no one expects this state of affairs to last very long since the governor declared a special session of the Legislature to speed up the legislative process for fixing the constitutional problem. Two bills, a Senate bill and an Assembly bill, have already been introduced as possible fixes. The Assembly bill would give commissioners a fixed two-year term, and the Senate bill a fixed four-year term.
But in the meantime, the litigation in which the City of Malibu is challenging the Malibu Local Coastal Program (LCP) drafted by the Coastal Commission is being heard in the West Los Angeles Court of Superior Court Judge Allan J. Goodman. After days of argument in a courtroom crowded with at least a dozen lawyers and file cabinets full of motions and declarations, the case has come to the first turn in the road, so to speak. The legion of lawyers, many of whom are prominent land-use attorneys, represent a pot full of parties including the city, the state, the Coastal Commission and a variety of private parties that want to protect their land and buildings, and, for some, their financial future. Their combined billing rate would probably go far to pay off the state debt. In that same lawsuit the state is asking the court to throw out the referendum of the Malibu voters that gathered 2,600-plus signatures to put the Malibu LCP onto the ballot.
On Jan. 31, Judge Goodman issued a case review and court order. It was sort of a state-of-case review, and a roadmap to the attorneys as to his thinking and where they all go from here. This is what he said:
- The Marine Forest decision is final for now
- The appellate court held that the Coastal Act violated the separation of powers doctrine, therefore it is unconstitutional
- There was no stay of that determination by the Court of Appeal
- That is binding precedent on him
- The question to be addressed is whether the ruling in Marine Forest Society vs. California Coastal Commission is retroactive. In other words, does it mean the Coastal Commission never lawfully approved the LCP for Malibu?
- Since no legislative fix is yet in place, and since the California Supreme Court has not stayed the decision, Goodman wants the attorneys to brief the issues presented by this circumstance, including whether the decision invalidates the Coastal Commission adoption and certification of the Malibu LCP
- Just in case, he also wants them to brief just what they believe the impact would be if the California Supreme Court decides to grant a stay
(Note: There is nothing brief about a legal brief. In fact, they are usually quite the opposite. The lawyers will read everything that was ever decided in the area, most of which doesn’t quite fit right in this situation, and then try to convince the judge to see it their way. It means trying to convince the judge that your round peg really does fit that square hole.)
Meanwhile, as this case goes on, the rules are subject to change at any moment in any one of a number of ways. It could happen by either an action of the Legislature (passing a new bill), a decision by California Supreme Court (which could mean making a decision, or deciding not to make a decision, or sending it back to a lower court for further proceedings), or, if it gets to the ballot, perhaps even the Malibu voters might get to decide.
A last option might be every one getting together to try and craft a LCP we all can live with although, as the number of issues gets more complex and the number of interested parties keeps multiplying, a negotiated settlement becomes more and more difficult.
In the meantime, you could say with reasonable certainty that everything is in a total and expensive legal muddle. And although the judge hopes to render his decision shortly after the briefing is finished on Feb. 11, it’s a certainty that whatever he decides, one side or the other will appeal it to the Court of Appeal, and the battle will continue on.