January 1, 2003 - From the December/January, 2003 issue

Coastal Commission Status Report: Appellate Ruling

An appellate court judge recently found that the California Coastal Commission was unconstitutional in its structure because its legislative appointees have no specified term or term limits. As a result of this ruling, the Legislature is scrambling to decide on whether to file an appeal and/or restructure the constitution of the Commission. TPR is pleased to present this interview with Cynthia McClain-Hill, a member of the Coastal Commission and appointed by the governor, in which she addresses the recent legal action concerning the state of the Commission as a body and the Commission's business.


Cynthia McClain-Hill

With an appellate court affirming a holding that the Coastal Commission Act is Unconstitutional, what exactly is the legal status of the Coastal Commission?

Certainly, the Coastal Act is still in effect. The Commission has the legal right to continue to conduct business until and unless the stay of the lower court order is lifted. And that has not yet happened.

Obviously, the Commission has continued to meet since the decision by the lower court. What is the Commission's legal strategy regarding further appeals and with regard to the Legislature relative to modifying the Act?

First, to be clear, the lower court decision to which I was referring and that put the Coastal Commission effectively out of business is the trial court. We have met relative to the appellate court opinion and have authorized our counsel to seek both a clarification of that opinion and a review of the appellate court's decision by the appellate court itself. Their position is that the failure to have defined terms for the legislative appointees is the problem. They simply could strike that provision of the statute and put an end to the methodology behind our composition. Should they fail to do that, then obviously a legislative solution will be necessary. It will also raise a question as to whether or not simply imposing terms is sufficient to cure the defect.

Is there a date by which you expect a response from the court on your request for a review and clarification?

The court has a defined length of time and, off of the top of my head, I cannot recall how long it is. It is anticipated, however, that the court will act before the end of January. In fact, if they do not act before then, the decision becomes final.

Senator Burton has communicated the need for legislative. Has the Commission taken a position on what its public testimony might be regarding amending the Act?

The Commission has taken no such position on any bill or proposal. Our only collective view is that the Coastal Act is extremely important and all steps must and should be taken to address this cloud over the Commission so that there remains a body viable to enforce the Act.

Do you have a personal, as distinct from a Commisison position on these matters?

Having served on the Commission as a gubernatorial appointee for four years, it is clear to me that the people generally look to the governor as the person responsible for the actions of most policy bodies in the state. Certainly, during my stint at the Coastal Commission, as matters are reported, the governor gets blamed or credit. For example, for the billionaire's home that has a permit approved, the governor gets blamed. When the Commission is successful in litigation against the federal government over offshore oil drilling, the governor gets the credit. It seems to be reasonable and consistent with common practice that the governor would have the majority of appointments on this body as he does on other bodies in the state with this level of impact on statewide policy. In addition, while I appreciate that there are a number of arguments for the multiple appointing authorities, only the governor was elected statewide. There may be a stronger argument to have other statewide officeholders have the power to appoint members as opposed to members of the Legislature, who were elected by a particular district and may be insulated from the broader concerns that impact the California coast.

Let's return to the scope of the court decision. Hypothetically, let's assume that the ruling stands. There are assertions by the plaintiffs that all actions taken by the Commission to date must be deemed unconstitutional as well. What is the Commission's position on the reliability and legality of its positions taken to date?

The court was very careful to limit its decision to the parities to the case. And, in looking at the decision, there is nothing to suggest that any of our past actions would be nullified by this decision were it to stand.

What is the statute of limitations on Commission decisions?

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The statute of limitations of an action taken by the Coastal Commission is 60 days.

Give us a sense of how the politics of the appellate court's decision play out over the course of the next year.

Frankly, courts rarely reverse themselves. It is unlikely that the appellate court will come to the conclusion that it erred and rule that it was out of order regarding the basis of our composition. I anticipate that we will immediately appeal that decision to the Supreme Court. I also would anticipate that we would seek expedited review of that appeal given the importance of the matter and the potential for chaos if there is not some definitive resolution in the short term.

Simultaneously, it is difficult to imagine that there will not be efforts within the Legislature and coming from the administration to address the issue and bring this matter to a close sooner rather than later.

Clearly the recent decisions of both courts regarding the constitutionality of the Coastal Commission has overshadowed a dramatic internal Commission discussion and debate both with regarding to who chairs the Commissin and re the priorities of the Commission. A change in leadership of Commission has now occurred. Can you comment on how consensual the Commission is today?

What I can tell you is that the body is united behind its current chairman, Mike Reilly. There is support at the Commission level, at the staff level, at, from what I can tell, at the political level. Mike is thoughtful, a strong environmentalist, very fair and even-handed, and we are fortunate to have him as chair, particularly at this time.

The Coastal Commission has always had a full docket with many issues coming before it at each meeting. Given the uncertainty arising from the ruling on constitutionality, how are you managing your docket and the cases now pending before you?

Again, we have been advised by counsel that we are fully empowered to act until and unless a stay is in effect. In our last meeting, we moved forward in the normal and ordinary course of business. We are, because of this decision, vulnerable in that anyone who doesn't like an outcome, be it that a permit was granted or not, and on either side of that debate, all they need to do is file a lawsuit raising our constitutionality. That then jeopardizes that decision if this opinion remains in effect. So, while we are acting, those actions are subject to challenge. I do not believe that we will get many challenges out of our most recent meeting.

We have carried both in TPR and in Metro Investment Report a number of articles on public easements relative to public beach access. Bring us up to date on the status of the law here.

The Coastal Commission has had a strong series of wins in connection to easements relative to beach access. There has been a good deal of coverage of challenges in the Malibu area. Those matters have been decided in favor of the Coastal Commission. The Commission is still committed to being very aggressive in pursuing and protecting public access to the beaches up and down the coast.

Lastly Cynthia, did you know what you were getting into when you were first appointed to this Commission?

The truth of the matter is that I did not apply for this position. I had served on the transition team and it was in the course of that process when I got a call on my cell phone from someone in the governor's office and the reception was quite poor. They asked me how I would feel about serving on a commission. Of course, I was willing to do whatever the governor wants. After the call, I phoned a friend and told her, "I think I was just appointed to the ‘Postal' Commission. Have you ever heard of the ‘Postal' Commission?" My friend suggested that it may be the Coastal Commission instead. So, the answer to your question is no.

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