From the Publisher/Arnold G. York
The year began with Mel Gibson’s movie resurrecting his directing career, despite all the doubters, with his enormously successful movie.
Then later in the year, the L.A. Dodgers began to slip, and all their fans began walking around with that hound dog look until, suddenly, out of nowhere, the Dodgers resurrected and the sun shone again.
Ditto for all the Malibu Democrats who saw the John Kerry campaign seemingly slip below the waves. Then came the first debate, and their spirits were revived. It was an entirely new race, resurrected from political oblivion.
Now the city of Malibu has decided that its fortunes could perhaps be resurrected and, perhaps hoping that good things come in threes, it has petitioned the California Supreme Court to overturn the two earlier court decisions in favor of the Coastal Commission regarding the Malibu LCP. The decisions were relatively simple. A trial court, and later the Court of Appeal, held that the state was the ultimate power and, to put it plainly, the state outranks the city. If the Legislature wanted to turn its powers over to a state administrative agency, namely the Coastal Commission, it could, and there wouldn’t be much that the city or the voters of Malibu could say about it. You may recall that more than 2,400 of us signed referendum petitions to try and get a chance to vote on this Malibu LCP. Those petitions should have been more than enough to put the Malibu LCP onto the ballot to allow all of us to vote. But there was a catch. Everyone agreed that if the Malibu City Council had voted in the Malibu LCP, we the voters would have a right of referendum. However, since the Coastal Commission voted it in, and it is a state agency, we lost our rights. At least that’s what the trial court and the Court of Appeal said. So Malibu has decided to take its chances and is asking the California Supreme Court to intercede.
In order for us to win in the Supreme Court we have to convince the court that it has to look at the big picture concerning questions like how much power you can delegate to an unelected administrative agency and how many rights you can take away before it’s too much.
Unfortunately, courts tend to look at history through a telescope—the wrong end of the telescope. Throughout American history, with few exceptions, the courts have generally trailed far behind the political system. Whether it was runaway slaves in the free states before the Civil War, or the Japanese being interred in World War II, or our current attorney general arguing that anyone designated an “enemy combatant,” even an American citizen, had no right to be taken before a court under a writ of habeas corpus.
I’m not suggesting that our Malibu LCP case is of that magnitude. Still, in the last decade or two we have gone through a political revolution in this country and in this state. We voted in term limits. Politicians cycle through so quickly that you have freshmen running the Legislature. We’ve recalled a governor, which is historic. We’ve voted in Indian gaming, and the billions it produces has filled the coffers of incumbent politicians and made a mockery of our campaign contribution laws. We’ve created a large and complicated bureaucracy that has no term limits so, as the politicians move around, the bureaucrats move into the vacuum and acquire more and more power. The boards that supposedly oversee these bureaucrats and their organizations are typically both captive and, often, impotent. These are significant issues in our world, and we’re going to the California Supreme Court to ask them to do what they should do. That is, to take a hard look at this plan and fulfill its constitutional duty and serve as a check and a balance.
I wish I could say I was optimistic, but I’m not. If the Supreme Court turns us down, then we’re probably going to be forced to enforce a plan we don’t like, that we believe, in many parts, is simply blatantly illegal and is, at best, a gross overreaching by a group of very doctrinaire bureaucrats. I would guess the only ones left smiling will be the trial lawyers, because there is going to be a wave of very expensive litigation following this plan.
See you in court.
P.S. Some time ago I spoke to a politician, a very smart person, who was instrumental in getting this piece of legislation passed that allowed the Coastal Commission to write the Malibu LCP. I told him about the kind of controversy that this plan had generated and he was genuinely surprised. The bureaucracy had assured him that the legislation would fix a problem, not create new ones. The truth is, they hadn’t spent much time looking at the legislation or thought it through very carefully. As often happens in Sacramento, it had been pushed through to solve one perceived problem and ended up creating 10 new ones instead.