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SACRAMENTO — The state Supreme Court decided Wednesday it wants to have the final word on whether the California Coastal Commission is unconstitutional. In unanimously accepting Marine Forests Society et al. v. California Coastal Commission et al., S113466, the high court also substantially broadened the case. The justices have asked for briefing on how a December ruling by the Third District Court of Appeal affects the commission’s 27 years of decisions. And they’ve asked for arguments about whether a hasty piece of legislation — passed after the appellate decision — solves the commission’s constitutional problems. The appeal court made history by ruling that the selection process used to pick coastal commissioners violated the state Constitution. Eight of the commission’s 12 voting members are picked by the Legislature. “The appointment structure giving the [Legislature] the power not only to appoint a majority of the commission’s voting members but also to remove them at will contravenes the separation of powers clause,” wrote Third District Presiding Justice Arthur Scotland. But the court limited its ruling, saying it wouldn’t undo decisions in the commission’s 27-year history. Now, the Supreme Court has opened the possibility that Scotland’s ruling could be used as the basis to appeal anything the commission has ever done. “The Supreme Court will decide whether the entire history of the Coastal Commission is valid,” said Ronald Zumbrun, a Sacramento solo who co-founded the conservative Pacific Legal Foundation and is representing Marine Forests Society. Marine Forests is a group of environmental activists that built an artificial reef off Newport Beach and sued the commission after it issued the group a cease-and-desist order. The commission lost in Sacramento County Superior Court and again on appeal. At first glance, the Supreme Court’s taking of the case appears to be a victory for the commission, which is represented by the attorney general’s office. But Zumbrun’s side scores, too. Zumbrun didn’t like the fix-it legislation, which was written by Assemblywoman Hannah-Beth Jackson, D-Santa Barbara. The bill limits commissioners to four-year terms but otherwise doesn’t change the appointment structure. Zumbrun would like to see the commission put under the control of the executive branch. “I can understand what the [Supreme Court] is doing,” Zumbrun said. “Because we have a messy situation, and the court is going to tell us what to do.” Even though he’s glad the court will look at the issue of retroactivity, Zumbrun believes justices will be reluctant to toss nearly 30 years of regulation. Deputy Attorney General Joseph Barbieri, who represents the commission, agreed and said case law backs him up. For example, if a person who sits on a government board is found to be unqualified, Barbieri said, courts have held that the board’s decisions still have the power of law and can’t be undone once the person is removed. “Courts are very unlikely to undo past decisions,” Barbieri said. The commission, created by the 1976 Coastal Act, regulates development along California’s coast. Marine Forests was joined by an unlikely list of allies in its court fight that included the California Building Industry Association and the California Association of Realtors. Although developers are not usually considered friendly to environmentalist concerns, both sides said the commission seemed to be more influenced by politics than by concerns over what to do with valuable land along the coast.

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