Public Forum


From the editor: This section is dedicated to the Public Forum, where we publish opinions on public and social issues that affect the Malibu community and our readers at large.

Long reach by the Supremes/ By Ted Vaill

As counsel for Amicus Curiae Californians For Local Coastal Planning (a Malibu group) in the Marine Forests case, decided on June 23, 2005 by the California Supreme Court in favor of the Coastal Commission in one of the longest reaches I have ever witnessed in 40 years of practicing law, I have this to say:

The Supremes spent a lot of time distinguishing the California Constitution from the U.S. Constitution insofar as the separation of powers doctrine is concerned. It is almost as if the U.S. Supreme Court’s separation of powers doctrine does not apply at all in California, in their view. But there are limits as to how far afield a state can go from the U. S. Supreme Court and the U.S. Constitution, and this may very well raise a U.S. Supreme court issue in this case.

The California Supreme Court did agree that for the California Legislature to have the ability to appoint and remove Coastal Commissioners could create a U.S. (and California) Constitutional problem, but they went on to rule that since the Legislature removed the “at will” appointment power by statute in 2003, and since the relief (an injunction) sought by Marine Forests operates only prospectively, there is now no constitutional problem.

However, one little hole remains in the Supremes’ analysis: the Coastal Commission ruled against Marine Forests (and the City of Malibu regarding its LCP) before the “legislative fix” was in place. How did the Supremes get around this fact? Answer: by invoking something called the “defacto officer” doctrine. This doctrine holds that official actions taken by a public officer before the invalidity of his or her appointment had been finally adjudicated may not be overturned on that basis. To use a hypothetical example: Suppose that Ozzie Silna ran for the Malibu City Council and won, and served three years of his term on the Council before a Court ruled that since only his front yard and not his house was within Malibu city limits, he was not a City of Malibu resident and could not legally be on the Council. The “de facto officer” doctrine would hold in this hypothetical example that all Council votes in which he participated before he was finally determined not to be a Malibu city resident would not be overturned because for these three years he was a “de facto” city resident until proven otherwise.

This doctrine is sound public policy, but the Supremes used a “hall of mirrors” here to reach the result they did. The “de facto officer” doctrine remedy is raised only by a quo warranto proceeding, which must be brought by the California Attorney General, the very state body representing the Coastal Commission in this case! Furthermore, the doctrine is limited to situations where the rights of third persons are concerned, and here Marine Forests is the claimant in the case before the Supreme Court, and not a third party. Also, the doctrine applies, according to the U.S. Supreme Court (if they matter) only to technical infractions of statutes (such as the hypothetical Ozzie Silna matter stated above) and not to a challenge “based on nonfrivolous constitutional grounds,” to quote the U.S. Supreme Court in a leading case. Finally, the California Supremes ignored the fact that the Coastal Commission waived the “de facto officer” doctrine by raising it for the first time on appeal, a clear violation of California judicial procedures.

Why did the Supremes reach the result they did? The answer? Politics! This is a difficult time for the California judiciary, with state budgetary crunches threatening its future effectiveness. Consequently the Chief Justice wants the Legislature’s assistance in placing on the ballot in 2006 a proposed constitutional amendment lengthening judges terms, changing the way the courts are funded (and judges are paid), and providing standardized procedures for adding new judges based on need. For the Supremes to slap the Legislature in the face by finding a separation of powers violation in the way Coastal Commissioners are appointed, even after the attempted “legislative fix” was in place, would almost certainly be disastrous to the future of the proposed Constitutional amendment.

Consequently, unless the U.S. Supreme Court agrees to hear this case, the battle is over, and the City of Malibu will be forced to enforce the Coastal Commission’s vindictive LCP against its own citizens. And with the new U.S. Supreme Court decision decided on the very same day allowing cities to condemn private citizen’s homes to permit developers to build there, thus giving the cities additional tax revenues, this is indeed a dark day for coastal property owners.