Coastal agency quick fix sought after court rules it unconstitutional - Democrats' Burton urges a special session to rescue the panel.

By Gary Delsohn -- Bee Capitol Bureau

January 3, 2003

Sacramento, CA - Convinced that Republicans won't act to rescue the California Coastal Commission from a recent court ruling that declared it unconstitutional, Senate President Pro Tem John Burton urged Gov. Gray Davis on Thursday to call a special legislative session so Democrats can quickly fix the problem.

Burton's request for a special session, delivered in a letter to Davis, comes three days after the 3rd District Court of Appeal in Sacramento declared the 12-member Coastal Commission unconstitutional.

The 30-year-old commission violates the state constitution's separation of powers provision, the court ruled, because the Legislature has too much power over who serves on what is essentially an executive and judicial body.

Attorney General Bill Lockyer, who is also a Democrat, said earlier this week that he's likely to appeal the ruling to the California Supreme Court and is expected to meet with commission members next week to discuss legal strategy. In the meantime, though, Burton and other Democrats who don't want to interrupt the commission's work of regulating coastal development are anxious to pursue legislative solutions suggested in Monday's court order.

Because they control both the Assembly and the Senate, Democrats could pass legislation without Republican support in a special session and -- if Davis signed it -- the law would take effect 90 days after the session ended.

In a regular legislative session, bills can't become law until the following January, unless rules are suspended and the bill is declared an "urgency measure." Such legislation would take effect immediately after being signed by the governor. Declaring a measure urgent, however, would require a few Republican votes in each house, Burton pointed out, and he considers that highly unlikely.

"The problem is Republicans don't support the concept of the ... Coastal Commission," Burton, a San Francisco Democrat, said in an interview Thursday. "Why ... would they vote for something where they'd be happy if it didn't exist?"

Dave Cox of Fair Oaks, the Assembly's Republican leader, didn't quarrel with Burton's assessment that Republicans aren't interested in saving the commission.

"When we have no input at all into who is appointed, our preference would be for it to go away," Cox said. "No question about that.

"Now, would we feel better if we could appoint an even number of the members? I don't know the answer to that question."

Sen. Sheila Kuehl, D-Santa Monica, who is chairwoman of the Senate's Natural Resources Committee, said Republicans in the Legislature who have long believed the commission exercised too much power over the rights of individual property owners "would prefer to see the Coastal Commission be unconstitutional without a fix."

"I know our side of the aisle will do everything it can to make certain the commission's authority is amended so it will be constitutional but not undermined," she said.

Steve Maviglio, press secretary to the Democratic governor, said Davis also wants to make sure the commission isn't put out of business by Monday's court ruling. But Davis first wants to see what Lockyer does about an appeal.

If Lockyer does appeal, the ruling by the 3rd District Court of Appeal, now scheduled to take effect Jan. 29, would be stayed pending action by the high court.

"There's a couple different scenarios," Maviglio said Thursday. "The governor will consider (Burton's request), but he wants to see what the attorney general does."

Established in 1972 by a statewide vote, the California Coastal Commission regulates development along the state's Pacific Coast. It has been controversial from the start, often under attack from builders and conservatives who think it's too restrictive and from environmentalists and other activists who have accused it of playing politics with what is one of the state's most treasured natural resources.

The appellate court, which upheld an earlier ruling by a Sacramento Superior Court judge in a challenge brought by a conservative legal foundation and a nonprofit marine research group in Southern California, suggested possible legislative solutions that on their face appear to be straightforward and uncomplicated.

Because eight of the commission's 12 members are appointed by the Senate president pro tem and Assembly speaker and only four are appointed by the governor, the legislative appointees dominate the commission. That gives the Legislature power the constitution says it shouldn't have, the court ruled.

But even more crucial than who appoints the commissioners, according to the court order written by the appellate district's presiding judge, Arthur Scotland, is the fact that all the commissioners serve at the pleasure of who appoints them. That imposes the Legislature even more deeply into executive and judicial branch functions because if legislative leaders don't like how a commissioner votes, they can remove him or her without cause. The court said that problem could be eliminated if legislative appointments were for fixed terms of specific duration.

Commissioners would know a term would be set for, say, two or four years, making them less beholden to legislative leaders, the court said.


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