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LOS ANGELES — Term limits may have saved the California Coastal Commission. On Wednesday, a majority of the California Supreme Court justices seemed to reject arguments that the selection process used to pick the 29-year-old agency’s members violates the separation-of-powers doctrine. But the justices indicated that that might not have been the case if the state Legislature hadn’t changed the rules in 2003 to set fixed four-year terms for commissioners, rather than have them serve at will. “Your argument loses impact in the face of term limits,” Chief Justice Ronald George told Sacramento lawyer Ronald Zumbrun, who was hoping to persuade the high court to affirm the Third District Court of Appeal’s 2002 decision that declared the Coastal Commission unconstitutional. The courtroom was filled to capacity for Wednesday’s headliner argument. The case had attracted dozens of amici curiae, including an odd alliance of environmentalists and developers who felt the commission had become too political and was acting at the whim of individual legislators rather than the law. The Coastal Commission was created in 1976 in reaction to a 1972 proposition passed by the voters to regulate development in the state’s 1,100-mile coastal zone. Commissioners and their supporters were concerned that hundreds of thousands of commission decisions could be voided if the court found the agency unconstitutional. Wednesday’s case was born in 1995, when the Coastal Commission denied the Marine Forests Society a permit to construct an artificial reef — composed of used tires, plastic jugs and concrete blocks — off Newport Beach. The goal was to create underwater marine forests whose seaweed and shellfish growth would replace lost marine habitats. The Marine Forests Society sued, arguing that the selection process for commissioners — where four are chosen by the governor and eight by the Legislature — made it an executive branch agency controlled by the state Legislature. The Third District agreed and found the agency unconstitutional, saying the Legislature’s power to appoint a majority of the commissioners and its ability to terminate their appointment at will contravened the separation of powers. On Wednesday, however, a majority of the Supreme Court didn’t seem overly concerned about the Legislature having some appointing authority, noting that there are other agencies under the executive branch whose members are chosen by the Legislature. Chief Justice George and Justice Joyce Kennard also pointed out that there is nothing in the California Constitution that explicitly forbids legislators from naming appointees to executive branch agencies and said other states allow it routinely. Several of the justices, however, indicated that they might have had problems with the commission’s original rules that allowed the Legislature to remove commissioners from the agency at will. Justice Carlos Moreno questioned Oakland-based Deputy Attorney General Joseph Barbieri about the effects on past rulings if the court found the original scheme unconstitutional while upholding the new rules. And Justice Ming Chin, following up on a question by George, asked Zumbrun whether it wasn’t true that term limits could cut down on the “likelihood of mischief” — i.e. commissioners feeling compelled to please their appointers. At one point Zumbrun, co-founder of the Pacific Legal Foundation, tried to argue that the Coastal Commission was a politically influenced agency “exercising quasi-judicial and quasi-executive functions.” But he was cut off by George, who asked: “Can they only put out pretty brochures? Is that the extent” of the agency’s authority? Barbieri came under fire as well. When he argued that the Legislature not only has the constitutional power to appoint members of the Coastal Commission, but also to remove them if they disagree with legislative policy, Chin seemed appalled. “Then how is the Legislature not controlling this agency?” he asked. Barbieri also argued that in 150 years, the Legislature has shown great restraint in not overstepping its appointing powers. “In theory, it’s possible” there could be abuses, he said. “In reality, it doesn’t happen.” The chief justice thought that naive. “Don’t we need something besides faith in the political process to ensure appropriate checks and balances?” he asked. Kathryn Mickle Werdegar seemed like the odd-justice-out on the bench, expressing worries about possible abuses — both under the at-will language and under the new term limits. “This does not control what they do?” she asked Barbieri. “Under the old scheme, they could be removed and under the new one they cannot be renewed.” Barbieri argued that there has to be some degree of faith that commissioners, duly appointed to do a job, will do it. “They are going to follow the law,” he said, “and ignore any displeasure by the appointing authorities.” The case is Marine Forests Society v. California Coastal Commission, S113466.

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