Stanford Law School - Robert Crown Law Library

Filed 6/23/05



IN THE SUPREME COURT OF CALIFORNIA



MARINE FORESTS SOCIETY et al.,

Plaintiffs

and

Respondents,

S113466

v.

) Ct.App.

3

C038753

CALIFORNIA COASTAL COMMISSION )
et al.,

Sacramento

County

Defendants and Appellants.

Super. Ct. No. 00AS00567



This case involves a constitutional challenge to the provisions of the

California Coastal Act (Coastal Act or Act) governing the appointment and tenure

of the members of the California Coastal Commission (Coastal Commission or

Commission). At the time this action was commenced, the applicable statutes

provided, in part, that one-third of the voting members of the Coastal Commission

were to be appointed by the Governor, one-third by the Senate Committee on

Rules (Senate Rules Committee), and one-third by the Speaker of the Assembly,

and further provided that all members of the Commission were to serve a two-year

term and were eligible for reappointment for succeeding two-year terms but were

removable throughout their term in office at the pleasure of their appointing

authority. (Pub. Resources Code, § 30301, subds. (e), (f), former § 30312,

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subd. (b), as enacted by Stats. 1976, ch. 1330, § 1, p. 5970.)1 In their initial cause

of action, plaintiffs asserted that this statutory structure — by authorizing

members of the legislative branch to appoint a majority of the voting members of

the Commission and enabling each appointing authority to remove its appointees

at will — rendered the Coastal Commission a “legislative body” for purposes of

the separation of powers clause of the California Constitution and that such a body

was precluded from engaging in executive or judicial functions, such as granting,

denying, or conditioning a development permit, or hearing and determining a

cease and desist order. The complaint sought declaratory and injunctive relief,

including an order enjoining the Commission from engaging in the foregoing

executive or judicial functions in the future.

The trial court granted summary adjudication in favor of plaintiffs on the

separation of powers cause of action, and issued the requested injunctive relief,

enjoining the Coastal Commission from granting, denying, or conditioning permits

or issuing and hearing cease and desist orders. On appeal, the Court of Appeal

affirmed the judgment rendered by the trial court, declaring that the statutory

scheme was flawed in authorizing the Senate Rules Committee and the Speaker of

the Assembly to remove a majority of the voting members of the Commission at

will, because such a structure created an improper subservience on the part of the

Commission to the legislative branch.

In response to the Court of Appeal’s decision, and while the Coastal

Commission’s petition for review from that decision was pending in this court, the

Legislature enacted, and the Governor signed, an urgency measure amending the


1

Unless otherwise indicated, all further statutory references are to the Public

Resources Code.

2

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pertinent provisions of the Coastal Act. (Stats. 2003-2004, 2d Ex. Sess. 2003,

ch. 1x, enacted Feb. 20, 2003, eff. May 20, 2003.) As amended, the statutory

scheme continues to provide for appointment of one-third of the voting members

of the Commission by the Governor, one-third by the Senate Rules Committee,

and one-third by the Speaker of the Assembly, but now provides that each of the

commission members appointed by the Senate Rules Committee or by the Speaker

of the Assembly shall serve a four-year term and is not removable at the pleasure

of such member’s appointing authority. (§§ 30301, subds. (e), (f), 30312,

subds.(a)(2), (b)(2).) Each member appointed by the Governor, by contrast,

continues to serve a two-year term and may be removed at the pleasure of the

Governor. (§ 30312, subds. (a)(1), (b)(1).)

Although both parties initially focused the bulk of their briefing on the

question of the validity of the statutory scheme in effect at the time this action was

initiated, as we shall explain the governing authorities establish that the resolution

of this appeal actually turns on the validity of the current statutory scheme. Under

the controlling precedent, it is well established that when, as here, a judgment for

injunctive relief is reviewed on appeal, the validity of the injunction is governed

by the law in effect at the time the appellate court renders its decision. Because

the statutory provisions upon which the decisions of the trial court and the Court

of Appeal were based have been modified, our determination of the validity of the

judgment granting injunctive relief necessarily rests upon an assessment of the

validity of the revised statutory scheme as it presently exists.

For the reasons discussed below, we conclude that the current statutory

provisions governing the composition of the Coastal Commission do not violate

the separation of powers clause of the California Constitution. As we shall see,

although plaintiffs’ challenge to the current provisions relies heavily on a number

of United States Supreme Court decisions holding that, under the separation of

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powers doctrine embodied in the federal Constitution, Congress has no authority

to appoint an executive officer (see, e.g., Buckley v. Valeo (1976) 424 U.S. 1, 135-

136; Myers v. United States (1926) 272 U.S. 52, 117), it is clear both from the

history of the California Constitution and from the judicial authorities interpreting

the separation of powers clause of our state Constitution, that the California

Constitution, unlike the United States Constitution, does not categorically preclude

the Legislature from enacting a statutory provision authorizing the Legislature

itself to appoint a member or members of an executive commission or board.

At the same time — and contrary to the argument advanced in this case by

the Attorney General — we conclude that, as in other contexts in which one

branch’s actions potentially impinge upon the domain of a coordinate branch, the

separation of powers clause of the California Constitution imposes limits upon the

legislative appointment of executive officers. Consistently with past decisions that

have addressed allegedly improper legislative intrusion upon the functions of the

judicial branch, we conclude that the California separation of powers clause

precludes the adoption of a statutory scheme authorizing the legislative

appointment of an executive officer or officers whenever the statutory provisions

as a whole, viewed from a realistic and practical perspective, operate to defeat or

materially impair the executive branch’s exercise of its constitutional functions.

As we shall explain, a statute authorizing the legislative appointment of an

executive officer may transgress this constitutional limitation in at least two

distinct circumstances. First, such a statute would violate the separation of powers

clause if legislative appointment to the particular office in question intrudes upon

what might be characterized as the “core zone” of the executive functions of the

Governor (or another constitutionally prescribed executive officer), impeding that

official from exercising the independent discretion contemplated by the

Constitution in the performance of his or her essential executive duties. Second, a

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statute providing for the legislative appointment of an executive officer also would

violate the separation of powers clause if the statutory scheme, taken as a whole,

permits the legislative appointing authority to retain undue control over an

appointee’s executive actions, compromising the ability of the appointed officer

(or of the executive body on which the appointee serves) to perform the officer’s

(or the executive body’s) authorized executive functions independently, without

legislative coercion or interference.

After reviewing the current provisions of the Coastal Act under the

foregoing standard, we conclude that in light of the nature of the Coastal

Commission’s functions, the origin, purpose, and operative effect of the

Commission’s current appointment and tenure structure, and the numerous

safeguards incorporated within the Coastal Act that serve to ensure that the actions

of commission members adhere to statutory guidelines and are not improperly

interfered with or controlled by the legislative appointing authority, the current

provisions do not violate the state constitutional separation of powers clause.

Accordingly, because we uphold the constitutionality of the current

provisions governing the composition and tenure of the Coastal Commission, we

conclude that the judgment rendered by the trial court, enjoining the commission

from undertaking the bulk of its statutorily authorized functions, must be reversed.

I

Although the resolution of the legal issue presented by this case does not

depend upon the facts underlying the administrative proceeding that generated this

constitutional challenge to the composition of the Coastal Commission, to place

the controversy in context we briefly set forth the background of the

administrative proceeding.

Plaintiff Marine Forests Society (Marine Forests) is a nonprofit corporation

whose purpose is the development of an experimental research program for the

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creation of so-called marine forests to replace lost marine habitat.2 The

organization’s objective is to discover economically viable techniques facilitating

the creation of large-scale marine forests where seaweed and shellfish growing on

sandy ocean bottoms will replace lost marine habitat. As part of its project,

Marine Forests began “planting” or depositing various materials, including used

tires, plastic jugs, and concrete blocks, on a sandy plain of the ocean off Newport

Harbor. The initial project was approved by the City of Newport Beach, the

California Department of Fish and Game, and the California Integrated Waste

Management Board, but Marine Forests did not seek or obtain permission for its

activities from the Coastal Commission.

In June 1993, the staff of the Coastal Commission informed Marine Forests

that it was required to apply to the Commission for a permit to conduct its

activities on the ocean floor off Newport Harbor. In 1995, Marine Forests applied

for an “after-the-fact” permit. In April 1997, the Commission denied Marine

Forests’ application for the permit and thereafter directed its staff to commence

enforcement proceedings against Marine Forests to compel it to cease and desist

performing the contested operations. In 1999, the Commission’s executive

director issued a “Notice of Intent to Commence Cease and Desist Order

Proceedings” against Marine Forests.

In response to the issuance of the notice of intent to commence cease and

desist proceedings, Marine Forests filed the present proceeding in superior court

for declaratory and injunctive relief, seeking to enjoin the Commission from


2

The complaint was brought in the name of both Marine Forests and

Rodolphe Streichenberger, the founder, president, and chief executive officer of
Marine Forests. For convenience, we refer to plaintiffs collectively as Marine
Forests.

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pursuing enforcement proceedings against it. The complaint filed by Marine

Forests maintained, in the initial cause of action, that the Coastal Commission

lacked authority to pursue enforcement proceedings, asserting that because a

majority of the voting members of the Commission were appointed by the Senate

Rules Committee and the Speaker of the Assembly and served at the will of their

appointing authority, the Coastal Commission must be considered a “legislative

body” for purposes of the separation of powers clause of the California

Constitution and that the Commission therefore lacked the authority either to

grant, deny, or condition a permit (a power the complaint characterized as an

“executive power”) or to conduct a hearing and issue a cease and desist order (a

power the complaint characterized as a “judicial power”). Shortly after the filing

of the complaint, both parties moved for summary adjudication on the separation

of powers cause of action. The trial court granted summary adjudication in favor

of Marine Forests, concluding that the circumstances that a majority of the voting

members of the Commission are appointed by members of the Legislature and that

the commission members serve at the pleasure of their appointing authority render

the Commission “a legislative body.” The trial court held that the Commission,

“as a legislative body, is enjoined from exceeding its jurisdiction and violating the

Separation of Powers Clause of the California Constitution which precludes it

from granting, denying, or conditioning permits or issuing and hearing cease and

desist orders.”

On appeal, the Court of Appeal affirmed the judgment rendered by the trial

court, concluding that “the Commission’s interpretation and implementation of the

California Coastal Act of 1976 is an executive function, and that the appointment

structure giving the Senate Committee on Rules and the Speaker of the Assembly

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 of

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California’s Constitution. The flaw is that the unfettered power to remove the

majority of the Commission’s voting members, and to replace them with others, if

they act in a manner disfavored by the Senate Committee on Rules and the

Speaker of the Assembly makes those Commission members subservient to the

Legislature. In a practical sense, this unrestrained power to replace a majority of

the Commission’s voting members, and the presumed desire of those members to

avoid being removed from their positions, allows the legislative branch not only to

declare the law but also to control the Commission’s execution of the law and

exercise of its quasi-judicial powers.”

After the Court of Appeal rendered its decision and while the petition for

review was pending in this court, the Legislature passed, and the Governor signed,

urgency legislation providing that the members of the Coastal Commission who

are appointed by the Senate Rules Committee and by the Speaker of the Assembly

shall serve four-year terms and no longer are removable by the appointing

authority, rather than serving two-year terms at the pleasure of their appointing

authority. The members of the Commission who are appointed by the Governor

continue to serve two-year terms at the pleasure of their appointing authority.

(Pub. Resources Code, § 30312, as amended by Stats. 2003, 2d Ex. Sess, ch. 1x.)

In light of the importance of the issues raised by this case, we granted

review. Our order granting review directed the parties to brief, in addition to the

issue set forth in the petition for review relating to the validity of the statutory

scheme addressed by the Court of Appeal, the following issues: (1) In light of the

February 2003 amendment to the relevant provisions of the Coastal Act, is the

composition of the Coastal Commission currently vulnerable to a separation of

powers challenge?, and (2) If the Court of Appeal was correct in finding that the

pre-2003 Coastal Act provisions relating to the composition and tenure of the

Coastal Commission violated the state separation of powers clause, what effect

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does such a conclusion have upon the past and currently pending decisions of the

Coastal Commission?

We have received extensive briefing, both from the parties and from

numerous amici curiae in support of each of the parties.

II

The California Coastal Act of 1976 had its origin in an initiative measure,

the Coastal Zone Conservation Act (popularly known as Proposition 20), passed

by the voters in the November 1972 general election. The 1972 initiative measure

created a statewide California Coastal Zone Conservation Commission and six

regional coastal conservation commissions that were charged, among other

responsibilities, with the duty of preparing a plan for land use and development

within the coastal zone that was to be submitted to the Legislature on or before

December 1, 1975. (Former §§ 27300-27320, enacted by Prop. 20, Nov. 7, 1972

Gen. Elec. and repealed by Stats. 1974, ch. 897, § 2, p. 1900, eff. Jan. 1, 1977.)

The coastal zone conservation commissions also were granted the authority to

issue permits to control development within each region pending the enactment of

a statewide plan. (Former §§ 27400-27403.)

As established by the 1972 initiative measure, the statewide commission

was composed of 12 members — six representatives from the regional

commissions (one selected by each regional commission) and six representatives

of the public who were not members of any regional commission and were

appointed “equally by the Governor, the Senate Rules Committee, and the Speaker

of the Assembly.” (Former § 27202, subd. (d), enacted by Prop. 20, Nov. 7, 1972

Gen. Elec. and repealed by Stats. 1974, ch. 897, § 2, p. 1900, eff. Jan. 1, 1977.)

The regional commissions were composed of a combination of local elected

officials and public representatives. Like the public representatives of the

statewide commission, the public representatives of the regional commissions also

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were appointed equally by the Governor, the Senate Rules Committee, and the

Speaker of the Assembly. (Ibid.)

While the 1972 initiative measure was in effect, a question arose whether

the public members of the regional and statewide commissions who had been

appointed by the Governor, the Senate Rules Committee, and the Speaker of the

Assembly had the right to remain in office for the life of the commissions (under

the initiative measure, the commissions — as well as the Coastal Zone

Conservation Act itself — were to expire on January 1, 1977, when all of the tasks

prescribed by the act were required to be completed) or whether all of these

members served at the pleasure of their appointing authority. In Brown v.

Superior Court (1975) 15 Cal.3d 52, this court concluded that the members of the

commissions served at the pleasure of their appointing authority, relying on the

circumstances (1) that the Coastal Zone Conservation Act contained no provision

specifying a term of office for the members of the regional or statewide

commissions, and (2) that California law — dating from the California

Constitution of 1849 — explicitly has provided that whenever the duration of any

office is not provided by law, the office is held at the pleasure of the appointing

authority. (Cal. Const. of 1849, art. XI, § 7; Cal. Const. of 1879, art. XX, § 16;

Gov. Code, § 1301.) In reaching this conclusion, the court in Brown rejected the

contention that because the terms of all commission members necessarily would

end on January 1, 1977 — when the act would expire — the act properly should

be interpreted to grant all commission members a fixed term lasting until January

1, 1977. This court explained that “[n]othing in that limited duration . . . suggests

that the drafters or voters intended to confer upon a public representative a term of

office equal to the duration of the commission, and thus deny state administrations

elected after January of 1973 any role in the selection of those representatives.

The drafters and voters could reasonably choose to establish a commission of

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limited duration, but one composed of politically responsive members subject to

removal by elected officials.” (Brown v. Superior Court, supra, 15 Cal.3d at p.

56.) In Brown, no separation of powers issue was raised or decided.

The commissions created by the 1972 initiative measure completed their

work in a timely fashion and submitted a proposed coastal plan to the Legislature

in December 1975. The following year the Legislature enacted the California

Coastal Act of 1976, a very lengthy and comprehensive statutory scheme aimed at

protecting the coastal zone. (§§ 30000-30900.)3

The Coastal Act created the Coastal Commission as the entity with the

primary responsibility for the implementation of the provisions of the Coastal Act

(§ 30330) and designated the Commission “the successor in interest to all

remaining obligations, powers, duties, responsibilities, and interests” of the


3

The Coastal Act contains a lengthy series of legislative findings and

declarations. (See §§ 30001, 30001.2, 30001.5, 30002, 30004, 30006, 30006.5,
30007.5.)


Section 30001.5 “declares that the basic goals of the state for the coastal

zone are to:


“(a) Protect, maintain, and, where feasible, enhance and restore the overall

quality of the coastal zone environment and its natural and artificial resources.


“(b) Assure orderly, balanced utilization and conservation of coastal zone

resources taking into account the social and economic needs of the people of the
state.


“(c) Maximize public access to and along the coast and maximize public

recreational opportunities in the coastal zone consistent with sound resources
conservation principles and constitutionally protected rights of private property
owners.


“(d) Assure priority for coastal-dependent and coastal-related development

over other development on the coast.


“(e) Encourage state and local initiatives and cooperation in preparing

procedures to implement coordinated planning and development for mutually
beneficial uses, including educational uses, in the coastal zone.”

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statewide and regional coastal zone conservation commissions established by the

1972 initiative measure. (§ 30331.)

With regard to the selection and tenure of the membership of the Coastal

Commission — the issues central to the present proceeding — the Coastal Act set

forth detailed provisions governing each of these matters.

The Coastal Act provides that the Coastal Commission consists of 16

members, 12 voting and four nonvoting. (§ 30301.)4 The 12 voting members of

the Coastal Commission consist of “[s]ix representatives of the public from the

state at large” and “[s]ix representatives selected from six coastal regions.”

(§ 30301, subds. (e), (f).)

With regard to the six public members, the Governor, the Senate Rules

Committee, and the Speaker of the Assembly each select two such members.

(§ 30301, subd. (e).)5


4

The four nonvoting members of the Coastal Commission are: (1) the

Secretary of the Resources Agency, (2) the Secretary of the Business and
Transportation Agency, (3) the Secretary of Trade and Commerce, and (4) the
Chairperson of the State Lands Commission. (§§ 30301, subds. (a)-(d), 30301.5)


The three agency secretaries are appointed by the Governor (subject to

Senate confirmation) and serve at the pleasure of the Governor. (Gov. Code,
§§ 12800, 12801.) The State Lands Commission is an entity in the Resources
Agency (Gov. Code, § 12805), consisting of the Controller, the Lieutenant
Governor, and the Director of Finance (§ 6101), and the Office of Chairperson of
the State Lands Commission traditionally has rotated on an annual basis between
the Controller and the Lieutenant Governor. (See, e.g., <http://archives.slc.ca.gov/
Meeting_Summaries/Current_Meeting/Commission_Meeting_Summaries.htm>
[as of June 23, 2005])

5

Under the Standing Rules of the Senate, the Senate Rules Committee

consists of the President Pro Tempore of the Senate, who serves as chair, and four
other members of the Senate elected by the Senate.

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With regard to the six coastal regional representatives, the Governor selects

one member from the north coast region (consisting of the Counties of Del Norte,

Humboldt, and Mendocino) and one member from the south central coast region

(consisting of the Counties of San Luis Obispo, Santa Barbara, and Ventura), the

Speaker of the Assembly selects one member from the central coast region

(consisting of the Counties of San Mateo, Santa Cruz, and Monterey) and one

member from the San Diego coast region (consisting of San Diego County), and

the Senate Rules Committee selects one member from the north central coast

region (consisting of the Counties of Sonoma and Marin, and the City and County

of San Francisco) and one member from the south coast region (consisting of the

Counties of Los Angeles and Orange). (§ 30301, subd. (f).) In addition, as to the

selection of the regional representatives, the Act provides that the county boards of

supervisors and city selection committees within each region shall propose

multiple nominees (consisting of county supervisors or city council members who

reside in the region) to the appointing authority, and further provides that the

appointing authority must make a selection from the nominees proposed by the

local governmental entities. (§ 30301.2.)6

The Coastal Act, as initially enacted in 1976, provided that any member

appointed by the Governor, the Senate Rules Committee, or the Speaker of the

Assembly “shall serve for two years at the pleasure of their appointing power” and

“may be reappointed for succeeding two-year periods.” (Former § 30312,


6

The Act provides that if the appointing authority notifies the local bodies

that none of the first group of nominees is acceptable, the appointing authority
may request an additional set of nominees. If the appointing authority requests an
additional set of nominees, the appointing authority must make the appointment
from such nominees. (§ 30301.2, subd. (b).)

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subd. (b), as enacted by Stats. 1976, ch. 1330, § 1, p. 5970.)7 The Act further

specified that “[v]acancies that occur shall be filled . . . in the same manner in

which the vacating member was selected or appointed.” (§ 30313.)8

For more than two decades after the creation of the Coastal Commission in

1976, the Commission operated under the foregoing statutory provisions without

serious constitutional challenge. In the present proceeding, however, both the trial

court and the Court of Appeal ruled that the foregoing statutory provisions

governing the appointment and tenure of commission members violated the

separation of powers clause of the California Constitution.

As noted above, in reaching its determination the Court of Appeal

explained that in its view “[t]he flaw [in the statutory scheme] is that the

unfettered power to remove the majority of the Commission’s voting members,

and to replace them with others, if they act in a manner disfavored by the Senate

Committee on Rules and the Speaker of the Assembly[,] makes those Commission


7

The Act further initially provided that although any member who qualified

for membership because of the office he or she held as a local elected official
generally served at the pleasure of his or her appointing authority, the membership
of such an official on the Commission would terminate 60 days after his or her
elected term of office ended (or sooner if a replacement was appointed by the
appropriate appointing authority).

8

In addition to the foregoing provisions, the Coastal Act — explicitly

recognizing “that the duties, responsibilities, and quasi-judicial actions of the
commission are sensitive and extremely important for the well-being of current
and future generations[,] and that the public interest and principles of fundamental
fairness and due process of law require that the commission conduct its affairs in
an open, objective, and impartial manner free of undue influence and the abuse of
power and authority” (§ 30320) — included a separate article, entitled Fairness
and Due Process (§§ 30320-30329), that precludes commission members from
conducting any “ex parte communication” with any person who has a financial
interest in any matter before the commission, unless the member fully discloses
the communication to the commission on the record of the proceeding.

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members subservient to the Legislature.” Further, the Court of Appeal

emphasized that its “legal conclusion — that the process for appointing voting

members of the Commission violates the separation of powers doctrine — is

limited to the specific facts of this case, where a majority of the Commission’s

voting members are appointed by the legislative branch and may be removed at the

pleasure of the legislative branch and there are no safeguards protecting against

the Legislature’s ability to use this authority to interfere with the Commission

members’ executive power to execute the laws. We express no opinion regarding

the propriety of legislative appointments to administrative agencies under

circumstances different than presented here.” (Court of Appeal’s italics.)

Shortly after the Court of Appeal rendered its decision in this matter, the

Legislature passed, and the Governor signed, an urgency measure amending the

Coastal Act to provide that members of the Coastal Commission who are

appointed or selected by the Senate Rules Committee or by the Speaker of the

Assembly shall serve four-year terms and are not removable at the pleasure of

their appointing authority. (§ 30312, subds. (a)(2), (b)(2), as amended by Stats.

2003, 2d Ex.Sess., ch. 1x, § 1.) Under the new legislation, members of the

Commission who are appointed by the Governor, by contrast, continue to serve

two-year terms at the pleasure of the Governor. (§ 30312, subds. (a)(1), (b)(1).)9

The revised statute further provides that members appointed by the Senate Rules

Committee or by the Speaker of the Assembly may be reappointed for succeeding


9

Under the amended statute, as under the prior version, a member of the

Commission who qualifies for membership because he or she holds a specified
office as a locally elected official ceases to be a member of the Commission 60
days after the termination of his or her term of office as a locally elected official.
(§ 30312, subds. (a), (b).)

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four-year terms, and members appointed by the Governor may be reappointed for

succeeding two-year terms. (§ 30312, subd. (b)(1), (2).)

The parties and amici curiae initially directed the bulk of their briefing to

the question whether the statutory provisions governing the appointment and

tenure of members of the Coastal Commission that were in effect prior to the 2003

amendments violated the separation of powers clause of the California

Constitution. As we shall explain, however, the governing decisions establish that

the resolution of the case before us requires us to determine the validity of the

current statutory provisions, rather than the prior provisions in effect at the time of

the rulings rendered by the trial court or the Court of Appeal. Accordingly, after

discussing the authorities underlying this threshold procedural point, we shall turn

to the substantive question whether the current Coastal Act provisions relating to

the appointment and tenure of the members of the Coastal Commission violate the

separation of powers clause of the California Constitution.

III

As noted, the proceeding before us is an appeal from a judgment granting

injunctive relief in favor of Marine Forests. Although Marine Forests earlier had

filed an application with the Coastal Commission for an after-the-fact permit and

had been denied such a permit, the present proceeding is not an administrative

mandate proceeding brought by Marine Forests to contest the permit denial, but

rather is a separate action brought by that party to obtain an injunction prohibiting

the Coastal Commission from granting, denying, or conditioning permits and from

hearing and determining cease and desist orders in the future. As requested by

Marine Forests, the trial court granted such injunctive relief on the basis of

plaintiff’s separation of powers claim, and the Coastal Commission appealed from

that judgment. Thus, the question before us on this appeal is the validity of the

judgment granting injunctive relief.

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With the case in this posture, it is clear under a long and uniform line of

California precedents that the validity of the judgment must be determined on the

basis of the current statutory provisions, rather than on the basis of the statutory

provisions that were in effect at the time the injunctive order was entered. As

observed by Witkin: “Because relief by injunction operates in the future, appeals

of injunctions are governed by the law in effect at the time the appellate court

gives its decision.” (6 Witkin, Cal. Procedure (4th ed. 1997) Provisional

Remedies, § 399, p. 324 & cases cited; see also 9 Witkin, Cal. Procedure, supra,

Appeal, § 332, p. 373.)

The case of Building Industry Assn. v. City of Oxnard (1985) 40 Cal.3d 1

provides an apt illustration of this principle. In the Building Industry case, after

the City of Oxnard enacted an ordinance imposing a “Growth Requirements

Capital Fee” on new developments, the plaintiff, an association representing the

construction industry, brought an action seeking an injunction against enforcement

of the ordinance. The trial court denied injunctive relief and the plaintiff appealed.

While the appeal was pending, the city amended the challenged ordinance. On

appeal before this court, the plaintiff contended that the modification of the

ordinance had no bearing on the resolution of the appeal, but we rejected that

contention, explaining that “past California decisions establish that in proceedings

of this nature — where injunctive relief against a legislative enactment is

sought — the relevant provision for purposes of the appeal is the measure which is

in effect at the time the appeal is decided.” (40 Cal.3d at p. 3.)

Numerous California decisions have applied this rule. (See, e.g., Kash

Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6 [“Under

settled principles, the version of the ordinance in force at present is the relevant

legislation for purposes of this appeal [of an order denying injunctive relief].”];

Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489, 527-528

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[“the rule is well settled that on appeals involving injunction decrees, the law in

effect when the appellate court renders its opinion must be applied”].)

Accordingly, in resolving this appeal from the trial court’s judgment

granting injunctive relief against the Coastal Commission, we must determine

whether the injunction should be affirmed in light of the current statutory

provisions. If the current statutory provisions are constitutional, the injunction

prohibiting the Commission from granting, denying, or conditioning permits in the

future (or from holding hearings on and determining cease and desist orders)

cannot be upheld on appeal.

We now turn to the question of the constitutionality of the current Coastal

Act provisions under the California separation of powers clause.

IV

Article III, section 3 of the California Constitution — this state’s separation

of powers clause — provides: “The powers of state government are legislative,

executive, and judicial. Persons charged with the exercise of one power may not

exercise either of the others except as permitted by this Constitution.”

In discussing this constitutional provision in Superior Court v. County of

Mendocino (1996) 13 Cal.4th 45 (County of Mendocino), we explained: “Although

the language of California Constitution article III, section 3, may suggest a sharp

demarcation between the operations of the three branches of government,

California decisions have long recognized that, in reality, the separation of powers

doctrine ‘ “does not mean that the three departments of our government are not in

many respects mutually dependent” ’ [citation], or that the actions of one branch

may not significantly affect those of another branch. Indeed, upon brief reflection,

the substantial interrelatedness of the three branches’ action is apparent and

commonplace: the judiciary passes upon the constitutional validity of legislative

and executive actions, the Legislature enacts statutes that govern the procedures

18

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and evidentiary rules applicable in judicial and executive proceedings, and the

Governor appoints judges and participates in the legislative process through the

veto power. Such interrelationship, of course, lies at the heart of the constitutional

theory of ‘checks and balances’ that the separation of powers doctrine is intended

to serve.” (13 Cal.4th at pp. 52-53.)

In County of Mendocino, we continued: “At the same time, [the separation

of powers] doctrine unquestionably places limits upon the actions of each branch

with respect to the other branches. The judiciary, in reviewing statutes enacted by

the Legislature, may not undertake to evaluate the wisdom of the policies

embodied in such legislation; absent a constitutional prohibition, the choice among

competing policy considerations in enacting laws is a legislative function.

[Citation.] The executive branch, in expending public funds, may not disregard

legislatively prescribed directives and limits pertaining to the use of such funds.

[Citation.] And the Legislature may not undertake to readjudicate controversies

that have been litigated in the courts and resolved by final judicial judgment.

[Citations.]” (County of Mendocino, supra, 13 Cal.4th 45, 53.) As we more

recently expressed this point: “The separation of powers doctrine limits the

authority of one of the three branches of government to arrogate to itself the core

functions of another branch.” (Carmel Valley Fire Protection Dist. v. State of

California (2001) 25 Cal.4th 287, 297.)

In the present case we address a separation of powers challenge to the

Coastal Commission. Like many other modern administrative agencies

established by the Legislature, the Coastal Commission is authorized (by the

Coastal Act) to perform a variety of governmental functions, some generally

characterized as “executive,” some “quasi-legislative,” and some “quasi-judicial.”

As a general matter, the Commission performs an “executive” function insofar as

it carries out programs and policies established by the Legislature, and the

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Commission is included for administrative purposes in the Resources Agency, a

part of the executive branch. (§ 30300.) The Commission performs a “quasi-

legislative” function when it engages in rulemaking through the adoption of

regulations (Pacific Legal Foundation v. California Coastal Com. (1982) 33

Cal.3d 158, 168), and a “quasi-judicial” function when it passes upon applications

for coastal development permits (Davis v. California Coastal Zone Conservation

Com. (1976) 57 Cal.App.3d 700, 707), when it reviews the validity of a local

government’s coastal program (City of Chula Vista v. Superior Court (1982) 133

Cal.App.3d 472, 488), and when it issues cease and desist orders with regard to

unauthorized development (Ojavan Investors, Inc. v. California Coastal Com.

(1994) 26 Cal.App.4th 516, 528).

As the Court of Appeal recognized, however, the constitutional propriety of

an administrative agency’s performance of such varied functions long has been

firmly established under California law (see, e.g., Jersey Maid Milk Products v.

Brock (1939) 13 Cal.2d 620, 658-659; Gaylord v. City of Pasadena (1917) 175

Cal. 433, 436-440), and Marine Forests’ separation of powers claim does not rest

simply upon the varied nature or scope of the governmental authority granted to,

and exercised by, the Coastal Commission. Instead, Marine Forests asserts there

is a fatal constitutional flaw in the statutory provisions governing the appointment

and tenure of the members of the Commission authorized to perform these varied

functions. Marine Forests maintains that because the Commission, in light of its

functions, properly must be considered part of the executive branch, the current

statutory provisions violate the separation of powers clause embodied in the

California Constitution by providing that a majority of the voting members of the

Commission are to be appointed by, and are subject to reappointment by, officials

or entities that are part of the legislative branch. Although we agree that the

Coastal Commission properly is considered part of the executive branch, for the

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reasons set forth below we do not agree that the challenged statutory provisions

governing the appointment and reappointment of Commission members violate

the separation of powers clause of the California Constitution.

In support of its separation of powers argument, Marine Forests relies in

part upon a number of decisions of the United States Supreme Court interpreting

and applying the separation of powers principles embodied in the United States

Constitution. In Buckley v. Valeo, supra, 424 U.S. 1, 109-143, for example, the

high court addressed a constitutional challenge to the provisions of a federal

statute governing the appointment of the members of the Federal Election

Commission — a body, like the Coastal Commission, charged with a variety of

functions similar to those exercised by most contemporary administrative

agencies. The statute in question in Buckley provided that of the six voting

members of the Federal Election Commission, two were to be appointed by the

President pro tempore of the United States Senate (upon the recommendations of

the majority and minority leaders of the Senate), two by the Speaker of the United

States House of Representatives (upon the recommendations of the majority and

minority leaders of the House), and two by the President. The statute further

required that each of the six voting members be confirmed by a majority of both

houses of Congress and also prohibited each of the three appointing authorities

from choosing both of its appointees from the same political party.

In challenging the statute, the plaintiffs in Buckley maintained that because

the Federal Election Commission was authorized to exercise wide-ranging

rulemaking and enforcement powers, “Congress is precluded under the principle

of separation of powers from vesting in itself the authority to appoint those who

will exercise such authority.” (Buckley v. Valeo, supra, 424 U.S. 1, 118.) In

sustaining the plaintiffs’ separation of powers challenge to the federal statutory

provisions at issue in that case, the high court in Buckley relied principally upon

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the appointments clause — article II, section 2, clause 2 — of the United States

Constitution, concluding that under this provision neither Congress nor its officers

could be granted the authority to appoint an officer who is to exercise such

executive authority. (424 U.S. at pp. 124-137.) Because the members of the

Federal Election Commission had not been appointed in conformity with the

requirements of the appointments clause, the court in Buckley held that under the

federal separation of powers doctrine the commission was precluded from

exercising the broad administrative powers that the statute empowered it to

perform. (424 U.S. at pp. 137-141.)

The high court’s holding in Buckley — that under the federal separation of

powers doctrine neither Congress nor congressional leaders may be granted the

authority to appoint an executive officer — drew support from a number of prior

United States Supreme Court decisions. (See, e.g., Myers v. United States, supra,
272 U.S. 52, 117 [the executive power granted the President by article II “included

the appointment and removal of executive subordinates”]; Springer v. Philippine

Islands (1928) 277 U.S. 189, 202 [invalidating Philippine statute that purported to

grant executive authority to legislative appointees, observing that “[l]egislative

power, as distinguished from executive power, is the authority to make laws, but

not to enforce them or appoint the agents charged with the duty of such

enforcement. The latter are executive functions.”]; Humphrey’s Executor v.

United States (1935) 295 U.S. 602, 624-625 [upholding legislative restrictions

upon President’s power to remove members of independent regulatory agencies,

but recognizing that such executive officers were to be appointed by the

President].) In addition, in the years following the high court’s decision in

Buckley, a number of United States Supreme Court decisions have reconfirmed

that under federal separation of powers principles the appointment and removal of

executive officers are considered executive functions that may not be vested in

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Congress as a whole or in individual members of Congress. (See, e.g., Bowsher v.

Synar (1986) 478 U.S. 714 [invaliding statutory provision that authorized the

Controller General, an official subject to removal by Congress, to exercise an

executive function]; MWAA v. CAAN (1991) 501 U.S. 252 [invalidating statutory

provision conferring upon a board of review composed of nine members of

Congress the authority to veto executive decisions of the Metropolitan Washington

Airports Authority, an executive body].)

Although these federal decisions establish that the provisions of the Coastal

Act here at issue would be of doubtful validity if the Coastal Commission were a

federal agency and the statutory provisions were to be judged under the federal

separation of powers doctrine, the flaw in Marine Forests’ reliance upon these

federal decisions lies in the implicit assumption that the separation of powers

doctrine embodied in the federal Constitution is equivalent to the separation of

powers clause of the California Constitution. As we shall see, with respect to the

exercise of the particular governmental function at issue in this case — the

authority to appoint executive officers — the federal and California Constitutions

are quite distinct, rendering inapposite the federal authorities upon which Marine

Forests relies.

In the analysis that follows, we begin with a brief overview of several basic

differences between the structure of the federal Constitution and that of most state

constitutions — differences that explain why, as a general matter, separation of

power decisions under the federal Constitution cannot be applied uncritically in

resolving separation of powers questions that may arise under a state constitution.

We then turn to the specific governmental function at issue in this case — the

appointment of executive officers — and explain that although under the federal

Constitution Congress is prohibited from appointing any federal executive

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officers, the California Constitution imposes no similar categorical constraint upon

legislative appointment of state executive officers.

Thereafter, we proceed to explain that although the Legislature is not

precluded by the state Constitution from providing for legislative appointment of

executive officers, the state separation of powers clause imposes limits upon the

Legislature’s exercise of this authority, restraining the Legislature from

overstepping its bounds by defeating or materially impairing the executive

function. Finally, we examine in detail the current provisions of the California

Coastal Act relating to the appointment and tenure of the Coastal Commission to

determine whether such provisions violate the separation of powers clause of the

California Constitution, concluding that these provisions do not violate this clause.

V

In the introduction to a recent scholarly law review article entitled

Interpreting The Separation of Powers in State Constitutions, Professor G. Alan

Tarr observed: “To understand the separation of powers in the American states,

one must be willing to explore the nature of state constitutions, their historical

development, and their underlying ideas, without preconceptions derived from

familiarity with the separation of powers on the national level. . . . The most

cursory examination of state constitutions confirms how distinctive state

constitutions and governments are. The Federal Constitution restricts the federal

government both by imposing prohibitions on the government and by granting the

government only limited powers. Under state constitutions, by contrast, the

second restriction is largely missing, and thus the states exercise plenary

legislative power. . . . [¶] Put differently, despite the superficial similarities, state

governments are not merely miniature versions of the national government.”

(Tarr, Interpreting The Separation of Powers in State Constitutions (2003) 59

N.Y.U. Ann. Surv. Am. L. 329, 329-330 (hereafter Tarr).)

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As Professor Tarr goes on to explain, “both federal and state constitutions

agree with Montesquieu in positing three branches of government — legislative,

executive, and judicial — each invested with a different function. The institutions

created at the national and state levels also have a surface similarity: state

legislature and Congress, governor and president, state supreme court and U.S.

Supreme Court. But when one proceeds below the surface, one finds that those

apparently analogous structures of government and separation of powers quickly

evaporate.” (Tarr, supra, at p. 333.) With regard to the federal Constitution,

“[t]he major concern in 1787 was to introduce checks on the legislative branch

which, as James Madison warned in Federalist No. 51, ‘necessarily predominates’

in republican governments.” (Ibid.) On the other hand, “[m]ost early state

constitutions reflected a quite different sensibility. Typically the separation of

powers was not designed to balance power among the branches of government.

Power tended to be concentrated in the legislature, in most instances the only

branch whose members were directly elected by the people; to state constitution-

makers this seemed altogether appropriate.” (Id. at p. 334.)

Of course, these cautionary admonitions do not mean that federal

separation of powers decisions never provide helpful guidance in interpreting the

California separation of powers clause. In the past, we have looked to federal

decisions for assistance in interpreting our state constitutional separation of

powers doctrine in instances in which there were no fundamental differences

between the relevant constitutional provisions. (See, e.g., Carmel Valley Fire

Protection Dist. v. State of California, supra, 25 Cal.4th 287, 298-308.) The

appropriateness of such reliance, however, necessarily depends upon the nature of

the particular separation of powers question that is at issue in a given case. The

general teaching of the article quoted above is simply that in interpreting and

applying a state constitutional separation of powers provision, a court must keep in

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mind potential structural differences between the state and federal constitutions.

As Professor Tarr observes, “[i]n interpreting state constitutions, one must . . . not

assume that the definition of what is ‘executive’ or ‘legislative’ is the same at the

state level as at the national level.” (Tarr, supra, at p. 338.)

VI

The separation of powers issue presented in this case concerns the authority

to appoint a public official who performs an executive function. The Framers of

the federal Constitution, in large part in reaction to the failures that occurred under

the Articles of Confederation, opted to establish a strong, unitary executive

officer — the President — with extensive executive authority. (See The Federalist

Nos. 69, 70 (Alexander Hamilton).) One important feature of the decision to

create a strong executive was the adoption of the federal appointments clause —

article II, section 2, clause 2 of the United States Constitution10 — which grants

the President the exclusive appointment authority over high executive officials,

and authorizes Congress, by statute, to vest the appointment of “inferior officers”

“in the President alone, in the courts of law, or in the heads of departments,” but

pointedly does not authorize Congress itself to appoint any executive official.

(See, e.g., Buckley v. Valeo, supra, 424 U.S. 1, 124-136.) In light of the language

and history of the appointments clause, the United States Supreme Court has held


10

Article II, section 2, clause 2 of the United States Constitution provides:

“[The President] . . . by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and consuls, judges of the Supreme
Court, and all other officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be established by law; but the
Congress may by law vest the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of
departments.”

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that under the federal separation of powers doctrine, neither Congress as a whole,

nor congressional leaders, may appoint a federal executive officer. (Ibid.)

The United States Supreme Court also has made clear, however, that the

separation of powers doctrine embodied in the federal Constitution, which governs

the allocation and exercise of governmental authority by the federal legislative,

executive, and judicial branches, has no application to the states. As the high

court observed in Mayor of Philadelphia v. Educ. Equal. League (1974) 415 U.S.

605, 615, footnote 13: “The [federal] Constitution does not impose on the States

any particular plan for the distribution of governmental powers.” (See also Dreyer

v. Illinois (1902) 187 U.S. 71, 84.)

Accordingly, the separation of powers issue before us must be decided on

the basis of the California Constitution.

VII

Unlike the federal Constitution, the California Constitution — like many

state constitutions — embodies a structure of divided executive power, providing

for the statewide election of not only the Governor (and the Lieutenant Governor),

but also of the Attorney General, the State Treasurer, the Secretary of State, the

Controller, and the Superintendent of Public Instruction.11 Furthermore, and

perhaps most significantly, unlike the United States Congress, which possesses

only those specific powers delegated to it by the federal Constitution, it is well

established that the California Legislature possesses plenary legislative authority

except as specifically limited by the California Constitution. (See, e.g., Fitts v.


11

Provision for the statewide election of the Insurance Commissioner is

statutory, rather than constitutional. (See Ins. Code, § 12900; cf. Cal. Const.,
art. V, §§ 2 (Governor), 11 (Lieutenant Governor, Attorney General, Controller,
Secretary of State, and Treasurer), art. IX, § 2 (Superintendent of Public
Instruction).)

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Superior Court (1936) 6 Cal.2d 230, 234 [“we do not look to [the California]

Constitution to determine whether the [L]egislature is authorized to do an act, but

only to see if it is prohibited. In other words, unless restrained by constitutional

provision, the [L]egislature is vested with the whole of the legislative power of the

state.”]; California Housing Finance Agency v. Patitucci (1978) 22 Cal.3d 171,

175 [same]; see also People v. Tilton (1869) 37 Cal. 614, 626 [“ . . . State

Constitutions are not grants of power to the Legislature. Full power exists when

there is no limitation”].)

In contrast to the federal Constitution, there is nothing in the California

Constitution that grants the Governor (or any other executive official) the

exclusive or paramount authority to appoint all executive officials or that prohibits

the Legislature from exercising such authority. Moreover, as we shall see, the

history of the California Constitution and past judicial decisions make it

abundantly clear that under this state’s Constitution the Legislature possesses

authority not only to determine whether to create new executive offices, agencies,

or commissions, but also to decide who is to appoint such executive officers and

commissioners, including, at least as a general matter, the authority to provide for

such appointment by the Legislature itself.

We begin with the relevant provisions of California’s first Constitution —

the Constitution of 1849.

A

The 1849 Constitution contained two explicit provisions relating

specifically to the appointment of executive officials.

Article XI, section 6, of the 1849 Constitution provided: “All officers

whose election or appointment is not provided for by this Constitution, and all

officers whose offices may hereafter be created by law, shall be elected by the

people, or appointed as the Legislature may direct.” (Italics added.)

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Article V, section 8, of the 1849 Constitution provided: “When any office

shall, from any cause become vacant, and no mode is provided by the Constitution

and laws for filling such vacancy, the Governor shall have the power to fill such

vacancy by granting a commission, which shall expire at the end of the next

session of the Legislature, or at the next election by the people.” (Italics added.)

Thus, the 1849 Constitution established that, except as otherwise provided

by the Constitution, the Legislature possessed the constitutional authority to

determine the method for appointing executive officers, and that the Governor

possessed the authority to fill a vacancy in such offices only when no method for

filling such vacancies had been provided by the Constitution or legislation — and

then only on an interim basis.

By its terms, article XI, section 6 of the 1849 Constitution provided simply

that public officers whose election or appointment was not specified by the

Constitution “shall be elected by the people, or appointed as the Legislature shall

direct,” and did not explicitly address the question whether the provision

contemplated that the Legislature could provide for the appointment of public

officers by the Legislature itself.12 Very shortly after the adoption of the

Constitution, however, the Legislature made clear by its own contemporary


12

The 1849 Constitution contained a provision prohibiting any member of the

Legislature, during his or her legislative term, from being appointed to “any civil
office of profit, under this State, which shall have been created . . . during such
term, except such office as may be filled by election by the people ” (Cal. Const.
of 1849, art. IV, § 20), but contained no provision prohibiting the Legislature from
appointing nonlegislators to such office. The current California Constitution
contains an analogous but somewhat broader provision, prohibiting a state
legislator from holding any appointive state office during his or her term of office.
(Cal. Const., art. IV, § 13 [“A member of the Legislature may not, during the term
for which the member is elected, hold any office or employment under the State
other than an elective office.”].)

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interpretation that it was understood the constitutional provision authorized the

Legislature, by legislative enactment, to provide for the appointment of state

officers by the Legislature itself.

The second piece of legislation passed by California’s first Legislature was

a bill creating the Office of State Printer and providing that the State Printer would

be elected by the Legislature. (Stats. 1850, ch. 2, p. 45.) Several months later, the

Legislature created a four-member Board of Health for the Port of San Francisco,

consisting of the Mayor of San Francisco and three additional members appointed

by the Legislature. (Stats. 1850, ch. 64, p. 162.) The following year, the

Legislature created a State Hospital to be administered by an eight-member board,

all of whom were appointed by the Legislature. (Stats. 1851, ch. 127, p. 500.)

Very early decisions of this court confirmed both the primacy of the

Legislature’s constitutional role in determining how and by whom executive

officers should be appointed, and the very limited nature of the role that the state

Constitution granted to the Governor with regard to this function. (See, e.g.,

People v. Fitch (1851) 1 Cal. 519, 536; People v. Jewett (1856) 6 Cal. 291, 293.)

In People v. Mizner (1857) 7 Cal. 519, 524-525, this court, after reviewing the

applicable state constitutional provisions quoted above, declared in this regard: “It

would seem that the evident intent and whole spirit of the Constitution of the State

was to limit the patronage of the Executive within very narrow bounds.” (Italics

added; see also People v. Tilton, supra, 37 Cal. 614, 622 [“ ‘Our Constitution,

whether wisely or unwisely, it is not our province to determine, has studiously

restricted the patronage of the Governor.’ ”].)13 Although the Constitution of


13

As these early decisions noted, other provisions of the 1849 Constitution

were consistent with this approach. This Constitution provided that all of the
statewide constitutional officers would be selected by election by the people, but

(footnote continued on following page)

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1849, like the Constitution today, included provisions specifying that “[t]he

supreme executive power of this State shall be vested in . . . the Governor” and

that “[the Governor] shall see that the laws are faithfully executed” (Const. of

1849, art. V, §§ 1, 7 [see now Cal. Const., art. V, § 1]), none of the numerous

authorities cited above suggested that these provisions could be interpreted to

grant the Governor a broad power to appoint executive officers in the absence of

statutory authorization, in part because of the specific constitutional provision that

expressly granted the Governor only a limited authority to fill vacancies in such

offices. (Cal. Const. of 1849, art. V, § 8.)14


(footnote continued from preceding page)

also provided that prior to the initial election, the Legislature would appoint the
first Attorney General, Treasurer, Comptroller, and Surveyor General, as well as
the first justices of the Supreme Court (id., art. V, § 20; art. VI, § 3); the Governor
was given the authority to appoint, with the advice and consent of the Senate, only
the first Secretary of State (id., art. V, § 19).

14

In McCauley v. Brooks (1860) 16 Cal. 1, 40, the court, in listing a number

of important functions or duties as to which the Governor, as head of the executive
branch, has broad discretion that generally is not subject to judicial review, noted
in dictum that the Governor “can exercise his discretion in numerous appointments
to office.” Nothing in McCauley, however, indicates that the appointments to
which this brief passage refers were other than appointments to the numerous
offices that the Governor was authorized to fill either by virtue of the
constitutional provision relating to vacancies, or the numerous then-existing
statutes providing for gubernatorial appointment. Unlike the cases discussed in
text above, McCauley itself did not involve an issue relating to an appointment to
office, but rather concerned the unrelated procedural question whether a writ of
mandamus could be issued to compel the Controller to perform a ministerial act —
in that case, the issuance of a warrant for a sum due from the state that was
payable from available, appropriated funds. On this procedural point, the court in
McCauley held that a writ of mandamus could issue to compel this type of
ministerial act by an executive officer.

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With regard to the separation of powers question before us today, the most

directly relevant of the early California decisions is People v. Langdon (1857) 8

Cal. 1. In Langdon, a dispute arose with regard to who properly held the public

office of superintendent of the state asylum for the insane — the person who had

been appointed by the Governor to a vacancy in the position, or the person

subsequently appointed by the Legislature. The governing statute provided that

the superintendent was to be appointed for a two-year term by a vote of the

Legislature on joint-ballot, but the Governor’s appointee (who had been appointed

to fill a vacancy) challenged the applicable statute as a violation of the state

separation of powers clause, arguing that “[t]o create the office, prescribe the

duration of the term, and to define the powers and duties of the office are clearly

legislative functions, but to fill this office by an election in joint convention is not

a legislative function. It is most clearly an invasion of the executive power of the

State, or the rights of the people to elect.” (8 Cal. at p. 4.)

Restating and responding to this argument, the court in Langdon observed:

“The appellant contends that, under the third article [separation of powers] and the

sixth section of the eleventh article of the Constitution [election or appointment of

officers], the Legislature have no power to elect an incumbent to an office. The

third article provides for the distribution of the powers of government between the

executive, legislative, and judicial branches of government, and forbids those

charged with duties belonging to one, from exercising functions appertaining to

another department.[15] Under this provision, it is urged that the Legislature may


15

The language of the separation of powers provision of the 1849

Constitution was similar to the current provision, and read in full: “The Powers of
the Government of the State of California shall be divided into three departments:
the Legislative, the Executive, and Judicial; and no person charged with the
exercise of powers belonging to one of these departments, shall exercise any

(footnote continued on following page)

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create the office, but cannot elect the officer; that it would be exercising power

belonging to the executive branch of the government, or to the people. Unhappily

for the argument, there is no fourth branch of the government recognized by the

third article of the Constitution, which is represented by the people, and if there is

any encroachment upon any other department, it must be upon the Executive.”

(People v. Langdon, supra, 8 Cal. 1, 15-16.)

The court in Langdon then explained: “The power to fill an office is

political, and this power is exercised in common by the Legislatures, the

Governors, and other executive officers, of every State in the Union, unless it has

been expressly withdrawn, by the organic law of the State. That it has not been by

our Constitution, there can be no doubt: First, because there is no clause that

would warrant such a construction: and, Second, because there are several that

would forbid it.” (People v. Langdon, supra, 8 Cal. 1, 16.)

After reviewing the language of article XI, section 6 of the 1849

Constitution — that all officers whose election or appointment is not provided by

the Constitution “shall be elected by the people, or appointed, as the Legislature

may direct” (italics added) — and rejecting as specious the claim that the use of

the term “appointed” prohibited the Legislature from providing for the selection of

an officer through “election” by the members of the Legislature (rather than by

“appointment” by the Legislature), the court in Langdon declared emphatically:

“It would be useless to pursue this argument further; this power has been always

exercised by the Legislature, and never before denied. It is not prohibited by the

Constitution, and according to the theory and spirit of our institutions, is safer

(footnote continued from preceding page)

functions appertaining to either of the others, except in the cases hereinafter
expressly directed or permitted.” (Cal. Const. of 1849, art. III.)

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when exercised by the immediate representatives of the people, than when lodged

in the hands of the Executive.” (People v. Langdon, supra, 8 Cal.1, 16, italics

added.)

Subsequent cases decided under the 1849 Constitution reiterated the

principles set forth in the early cases, confirming the Legislature’s broad authority

over the appointment of executive officers, including the power to authorize the

appointment of such officers by the Legislature itself. (See, e.g., Wetherbee v.

Cazneau (1862) 20 Cal. 503, 508; People v. Tilton, supra, 37 Cal. 614, 621-623;

In re Bulger (1873) 45 Cal. 553, 559.)16

In 1872, as part of the adoption of the initial Political Code, the Legislature

enacted a general statute providing that, in the absence of a specific statute

prescribing the appointing authority for a particular office, the officer would be

appointed by the Governor. (Pol. Code of 1872, § 875 [“Every officer, the mode

of whose appointment is not prescribed by the Constitution or statutes, must be

appointed by the Governor”].) This provision — whose terms are now embodied


16

The 1849 Constitution of California was hardly alone in recognizing the

Legislature’s authority to appoint executive officers. In The Federalist No. 47,
James Madison reviewed the structure of a number of the state constitutions that
were in existence at the time of the drafting of the federal Constitution in 1787,
and noted that the constitutions of at least seven of the original colonies (New
Hampshire, Massachusetts, New York, Delaware, Virginia, South Carolina, and
Georgia) provided for the appointment of at least some executive officers by the
Legislature itself, including, in a number of instances, the state governor. (The
Federalist No. 47, at pp. 303-307 (James Madison) (Clinton Rossiter ed. 1961).)
Although Madison objected to the legislative appointment of executive officers
and was instrumental in persuading the drafters of the federal Constitution to
incorporate a different structure into the federal Constitution, the drafters of the
1849 Constitution of California opted, in this instance, to model the relevant
provisions of the California Constitution on the earlier state models.

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in nearly identical language in Government Code section 130017 — recognizes

that the Legislature retains the authority to determine the mode of appointment of

state officers by the enactment of an applicable statute, but in the absence of such

an enactment the Governor is statutorily empowered to appoint the officer.

B

Thirty years after the adoption of the 1849 Constitution, a constitutional

convention was convened in California to draft a new Constitution.

During the 1878-1879 Constitutional Convention, two delegates proposed

the adoption of revised constitutional provisions that would have conferred upon

the Governor the general authority to appoint state executive officers and would

have prohibited the Legislature itself from appointing such officers. (See 1 Willis

& Stockton, Debates and Proceedings, Cal. Const. Convention 1878-1879, p. 147

[amendment proposed by Mr. White: “The Governor shall nominate, and by and

with the advice and consent of the Senate . . . appoint all officers whose offices . . .

may be created by law, and whose appointment or election is not otherwise

provided for; and no such officer shall be appointed or elected by the Legislature,

or by any legislative enactment.” (Italics added.)]; id. at p. 177 [amendment

proposed by Mr. Dudley: “All officers whose election or appointment is not

provided for by this Constitution, and all officers whose offices may hereafter be

created by law, shall be elected by the people, or appointed, as the Legislature may

direct. All appointed officers of the State Government must be appointed by the

Governor [with specified exceptions] . . . . No office shall be filled by appointment

of the Legislature, or either branch thereof, save the offices of its own body.”


17

Government Code section 1300 provides: “Every officer, the mode of

whose appointment is not prescribed by law, shall be appointed by the Governor.”

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(Italics added.)].) Neither of the proposed revisions, however, was adopted by the

convention, and instead the convention adopted constitutional provisions that, in

all relevant respects, paralleled the earlier provisions of the 1849 Constitution.18

Ten years after the adoption of the 1879 Constitution, a separation of

powers claim similar to that before us today came before this court in People v.

Freeman (1889) 80 Cal. 233. Freeman was an action instituted by the Governor,

seeking to oust a member of the state library board of trustees on the ground that

the applicable statutory provision that granted the Legislature the power to appoint

(for a four-year term) all five members of the library board was unconstitutional

under the separation of powers doctrine. In Freeman, the Governor contended that

“appointing to office is intrinsically, essentially, and exclusively an executive

function, and therefore cannot be exercised by the legislature.” (80 Cal. at p. 234.)

In support of this claim, the Governor relied upon statements in a few out-of-state

decisions and upon a passage from a letter written by Thomas Jefferson, in which

Jefferson expressed the view that “ ‘[n]omination to office is an executive

function’ ” and that “ ‘to give it to the legislature . . . is a violation of the principle

of the separation of powers . . . .’ ” (Id. at p. 235.)

In People v. Freeman, supra, 80 Cal. 233, this court, in a unanimous opinion

by Chief Justice Beatty, rejected the Governor’s contention, explaining: “No doubt


18

The subject formerly set forth in article XI, section 6 of the 1849

Constitution was moved to article XX, section 4 of the 1879 Constitution, which
provided in full: “All officers or Commissioners whose election or appointment is
not provided by this Constitution, and all officers or Commissioners whose offices
or duties may hereafter be created by law, shall be elected by the people, or
appointed, as the Legislature may direct.”


The provision relating to the Governor’s limited power to fill vacancies,

formerly set forth in article V, section 8 of the 1849 Constitution, was continued as
article V, section 8 of the 1879 Constitution.

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these views as to the intrinsic nature of the power of appointment or of nomination

to office, and the expediency of confining it to the executive department of the

government, are entitled to the highest considerations, but the question here is, not

what the constitution ought to be, but what it is, or, in other words, what was the

intention of its framers as to this particular matter. Of course if there had been at the

time of its adoption a general consensus of opinion in harmony with the views of

Mr. Jefferson, as above quoted, we should be forced to conclude that its framers

intended to forbid to the legislature the exercise of this power of appointment to

office. But there was no such consensus of opinion. On the contrary, it had not

only been decided in other states of the Union under constitutions containing

provisions substantially equivalent to the sections above quoted from our own, that

the legislature could fill offices by itself created, but our own supreme court,

construing identical provisions of our old constitution, had come to the same

conclusion. (People v. Langdon, 8 Cal. 16.) In view of this construction, so long

acquiesced in and acted upon, it must be held that the convention of 1879 in

readopting the provisions so construed, in the identical terms of the old constitution,

intended that they should have the same operation and effect formerly attributed to

them. If they had meant to prescribe a different rule, it would have been easy to

express such intention in language not to be misunderstood, and leaving nothing to

construction. [¶] Upon these considerations, we feel constrained to hold that the

power of appointment to office, so far as it is not regulated by express provisions of

the constitution, may be regulated by law, and if the law so prescribes, may be

exercised by the members of the legislature.” (Id., at pp. 235-236.)19


19

Contrary to the assertion of counsel for Marine Forests at oral argument,

nothing in the opinion in Freeman characterizes the library board at issue in that
case as a legislative rather than an executive agency.

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Accordingly, the decision in Freeman reconfirmed that under the California

Constitution of 1879, as under the Constitution of 1849, the appointment of

executive officers was not an exclusively executive function and that a statute

providing for legislative appointment of such officers did not violate the

separation of powers provision of the California Constitution. (See also Ex Parte

Gerino (1904) 143 Cal. 412, 414 [“The legislature has power . . . to declare the

manner in which officers other than those provided by the constitution shall be

chosen. Such officers may be appointed by the legislature itself, or the duty of

appointment may be delegated and imposed upon some other person or body”].)

C

In 1934, the California Constitution was amended to adopt a new article

creating a state civil service system that covered the great bulk of state employees

and provided for appointment and promotion of such employees on the basis of

competitive examination. (Cal. Const., former art. XXIV, now Cal. Const., art.

VII.) Members of boards and commissions — such as the members of the Coastal

Commission — however, always have been exempt from the civil service system

(Cal. Const., former art. XXIV, § 4, subds. (a), (d), now Cal. Const., art. VII, § 4,

subd. (d)), and thus the adoption of the civil service article did not affect the

constitutional provisions regarding the appointment of such high state officials.

As a result of the passage of a great variety of initiative measures and

legislatively initiated constitutional provisions during the first six decades of the

twentieth century, the California Constitution had become a very long and prolix

document by the 1960’s, and the California Constitution Revision Commission

was appointed to undertake a comprehensive review of the California Constitution

and propose appropriate revisions. (See Grodin et al., The Cal. State Constitution:

A Reference Guide (1993) p. 19.) Upon the recommendations of the California

Constitution Revision Commission, the constitutional provision specifically

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relating to the appointment of executive officers was removed from the

Constitution in 1970, but, as we shall see, the historical materials accompanying

this change make it clear that this change was not intended to, and did not in

fact, alter the state constitutional allocation of power with regard to the

appointment of executive officers, such as the members of boards and

commissions.

Former article XX, section 4 — the provision of the 1879 Constitution

relating to the appointment of executive officers (see, ante, p. 36, fn. 18) — was

one of a number of constitutional provisions that were repealed by a partial

constitutional revision passed at the November 1970 general election. The ballot

pamphlet distributed to voters explained that the purpose of the proposed deletions

was to place “the subject matter of the deleted provisions . . . under legislative

control through the enactment of statutes.” (Ballot Pamp., Gen. Elec. (Nov. 3,

1970) analysis of Prop. 16 by Legis. Counsel, p. 26, italics added.) Further, the

report of the California Constitution Revision Commission that proposed the

deletion of this provision from the Constitution explained: “The provision

apparently was intended during the early days of statehood to confirm the power

of the Legislature to establish departments and agencies other than those

specifically created by the Constitution. Since there is nothing elsewhere in the

Constitution restricting the now accepted inherent power of the Legislature to

establish new offices, agencies, and departments, this provision is constitutionally

unnecessary.” (Cal. Const. Revision Com., Proposed Revision (1970) p. 36.) At

the time of the repeal of former article XX, section 4, Government Code section

1300 provided, as it does today, that “[e]very officer, the mode of whose

appointment is not prescribed by law, shall be appointed by the Governor.”

(Italics added.) Accordingly, the repeal did not affect the Legislature’s primary

authority to determine the mode of appointment of executive officers through

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legislation. Nothing in the constitutional change suggests any intent to withdraw

constitutional authority from the Legislature or to grant additional constitutional

authority to the Governor or any other official in the executive branch.

The other relevant constitutional provision of the 1879 Constitution —

article VIII, section 5, relating to the Governor’s authority to fill vacancies — was

moved to article V, section 5, subdivision (a) as part of an earlier 1966

constitutional revision. The latter provision now reads: “Unless the law otherwise

provides, the Governor may fill a vacancy in office by appointment until a

successor qualifies.” (Italics added.) By its terms, it is clear that this revision also

did not withdraw any constitutional authority from the Legislature.

A brief filed by one of the many amici curiae in this matter argues that the

early California separation of powers decisions that we have discussed above

should be viewed as no longer applicable because of the change in the California

Constitution in 1970. The brief contends that when the provision expressly

recognizing the Legislature’s authority over the appointment of executive officers

was deleted from the Constitution, “the power became merely statutory, as its

constitutional basis no longer exists.”

This argument reflects a fundamental misunderstanding of state

constitutional principles. As already noted, California decisions long have made it

clear that under our Constitution the Legislature enjoys plenary legislative powers

unless there is an explicit prohibition of legislative action in the Constitution itself.

(See, e.g., Fitts v. Superior Court, supra, 6 Cal.2d 230, 234.) As we have seen,

when the express constitutional provision relating to appointment of officers was

removed from the California Constitution as part of the constitutional revision

process in the early 1970’s, the rationale for the deletion was that there was no

need to retain the provision in the Constitution in view of the Legislature’s plenary

legislative authority on this subject and the firmly established nature of its

40

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prerogative in this area. Thus, amicus curiae is in error in suggesting that the

constitutional change in 1970 should be interpreted as having altered the allocation

of authority between the legislative and executive branches with respect to the

appointment of executive officers.

VIII

As the foregoing discussion reveals, from the inception of the California

Constitution in 1849 it has been uniformly recognized that under our state’s

Constitution the appointment of executive officers is not an exclusively executive

function that may be exercised only by members of the executive branch, and that

the Legislature possesses the power to determine through legislative enactment by

whom an executive officer should be appointed, including the authority to provide

for the appointment of executive officers by the Legislature itself. Unlike the

structure prescribed by the federal Constitution, under the California Constitution

the general power to appoint executive officers never has been viewed as an

inherent or exclusive power of the executive branch.

Contrary to the contention of Marine Forests, the case of Parker v. Riley

(1941) 18 Cal.2d 83 is in no way inconsistent with this conclusion. In Parker, this

court addressed a two-pronged constitutional challenge to a statute that created a

Commission on Interstate Cooperation, a body “charged with the duty of

furthering the participation of the state as a member of the Council of State

Governments” and with “confer[ring] with officials of other states and the federal

government to formulate proposals for cooperation between the state and such

other governments.” (Id. at p. 84.) The statute established a five-member Senate

Committee on Interstate Cooperation and a five-member Assembly Committee on

Interstate Cooperation, whose members were to be chosen in the same manner as

other legislative committees, and further provided that the membership of the

overall state Commission on Interstate Cooperation was to be made up of the five

41

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members of the Senate Committee, the five members of the Assembly Committee,

and five officials of the state to be appointed by the Governor.

In Parker v. Riley, supra, 18 Cal.2d 83, this statute was challenged as

violative of two distinct provisions of the California Constitution. First, the court

in Parker observed that “[t]he most serious challenge to the constitutionality of

this legislation is advanced under section 19 of article IV of the California

Constitution” (id. at p. 86), which declared that “ ‘[n]o senator or member of the

assembly shall, during the term for which he shall have been elected, hold or

accept any office, trust or employment under this state; provided, that this

provision shall not apply to any office filled by election by the people.’ ” (Ibid.)20

The challengers claimed that membership in the commission constituted an

“office, trust, or employment” within the meaning of this constitutional provision

and thus that persons serving in the Legislature could not hold such a position.

The court in Parker acknowledged that “[t]he sweeping terms of the California

constitutional provision . . . prevent the appointment of a member of the legislature

to any other position of trust or responsibility under the state” (Parker v. Riley,

supra, at p. 87), but went on to conclude that membership on the Commission did

not confer any “other office, trust, or employment” (id. at p. 88) upon the

legislative members because the members’ participation in the Commission was in

effect an extension of the members’ legislative duties of investigating legislative

facts and proposing legislative solutions. On this point, the court concluded: “We

hold, therefore, that the statute here attacked did not contemplate the conferring of

any new office, trust, or employment upon the legislative members of this

commission.” (Ibid.)

20

As noted above (ante, p. 29, fn. 12), a similar provision now is set forth in

article IV, section 13, of the California Constitution.

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After reaching the above conclusion, the court in Parker stated: “It must

not be assumed, however, that legislative activities may be expanded indefinitely

through the creation of separate agencies responsible primarily to the

Legislature. . . . The Constitution forbids any such assumption of duties by the

legislative branch of government, and a statute conferring a nonlegislative office

or trust upon members of the legislature would clearly be unconstitutional.”

(Parker v. Riley, supra, 18 Cal.2d 83, 88, italics added.) Although Marine Forests

relies upon the initial sentence of the immediately preceding quotation (“[i]t must

not be assumed . . . that legislative activities may be expanded indefinitely”) to

support its separation of powers contention, in context it is clear that this statement

in Parker referred only to the limits placed by the state Constitution upon

members of the Legislature holding or accepting an appointment to another state

office, and was not directed at the broad authority of the Legislature to appoint

persons who do not hold legislative office to an executive branch office or agency.

In Parker v. Riley, supra, 18 Cal.2d 83, in addition to the foregoing

constitutional challenge based upon the state constitutional provision limiting a

member of the Legislature from holding another state office during his or her

legislative term of office, the statute in question also was challenged as a violation

of the state separation of powers clause. In both respects, however, the Parker

decision provides no support for Marine Forests’ position. The separation of

powers challenge in Parker was premised on the theory that certain duties

performed by the Commission were executive in nature, and that the exercise of

such powers by members of the legislative branch of government was

impermissible under the separation of powers doctrine. The court in Parker

rejected that claim, explaining that “[t]he doctrine has not been interpreted as

requiring the rigid classification of all the incidental activities of government, with

the result that once a technique or method of procedure is associated with a

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particular branch of the government, it can never be used thereafter by another.”

(Id. at p. 90.) In sum, nothing in Parker casts any doubt on the Legislature’s well-

established authority under the California Constitution to enact legislation

authorizing the Legislature’s appointment of members of an executive branch

entity or agency.

IX

Although the resolution of the issue before us turns solely on the allocation

of governmental authority established by the California Constitution, we note that,

as in California, in the great majority of our sister states in which the question has

been presented, the courts have held that under their respective state constitutions

the power to appoint executive officers is not an exclusively executive function

that may be exercised only by the Governor or another executive official, but

rather is a power that may be exercised ⎯ either in general or in appropriate

circumstances ⎯ by the Legislature. (See, e.g., Fox v. McDonald (Ala. 1893) 13

So. 416, 420-421; State ex rel. Woods v. Block (Ariz. 1997) 942 P.2d 428, 434-

435; Cox v. State (Ark. 904) 78 S.W. 756, 756-758; Seymour v. Elections

Enforcement Com’n (Conn. 2000) 762 A.2d 880, 895-897; State ex rel. Craven

(Del. 1957) 131 A.2d 158, 162-164; Caldwell v. Bateman (Ga. 1984) 312 S.E.2d

320, 325; Ingard v. Barker (Idaho 1915) 147 P. 293, 295; Betts v. Calumet Park

(Ill. 1960) 170 N.E.2d 563, 563-564; Sedlak v. Dick (Kan. 1995) 887 P.2d 1119,

1126-1130; State Through Bd. of Ethics v. Green (La. 1990) 566 So.2d 623, 624-

626; Buchholtz v. Hill (Md. 1940) 13 A.2d 348, 351-352; Oren v. Bolger (Mich.

1901) 87 N.W. 366, 367-368; Daley v. City of St. Paul (1862) 7 Minn. 311, 314;

People v. Woodruff (1865) 32 N.Y. 355, 364-365; State of Nevada v. Rosenstock

(1876) 11 Nev. 128, 134-139; State ex rel. Martin v. Melott (N.C. 1987) 359

S.E.2d 783, 785-787; State v. Frazier (N.D. 1921) 182 N.W. 545, 548; Wentz v.

Thomas (Okla. 1932) 15 P.2d 65, 68-69; Biggs v. McBride (Or. 1889) 21 P. 878,

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880-881; Pa. State Ass’n of Tp. Sup’rs v. Thornburgh (Pa.1979) 405 A.2d 614,

616; In re Advisory Opinion to the Governor (R.I. 1999) 732 A.2d 55, 62-72;

Tucker v. Dept. of Highways (S.C. 1994) 442 S.E.2d 171, 172-173; Richardson v.

Young (Tenn. 1910) 125 S.W. 664, 667-675; Brumby v. Boyd (Tex. 1902) 66 S.W.

874, 876-877; In re Appointment of Revisor (Wis. 1910) 124 N.W. 670, 678.)

Of the minority of state cases that reach a contrary conclusion, some (albeit

not all) are based upon language in a particular state constitution that explicitly

grants the Governor a broad right to appoint executive officers or that explicitly

prohibits the Legislature from making such appointments. (See Bradner v.

Hammond (Alaska 1976) 553 P.2d 1, 3-8 [specific constitutional language]; State

v. Daniel (Fla. 1924) 99 So. 804, 808 [same]; Tucker v. State (Ind. 1941) 35

N.E.2d 270, 278-304; Legislative Research Com. v. Brown (Ky. 1984) 664 S.W.2d

907, 920-924; Opinion of the Justices (Mass. 1974) 309 N.E.2d 476, 479-480;

Alexander v. State by and through Allain (Miss. 1983) 441 So.2d 1329, 1343-

1345; State v. Washburn (Mo. 1902) 67 S.W. 592, 594-596; State v. Young

(Neb.1951) 48 N.W.2d 677, 679-681; Richman v. Ligham (N.J. 1956) 123 A.2d

32, 377-378 [specific constitutional language]; State ex rel. Attorney General v.

Kennon (1857) 7 Ohio St. 546, 555-567 [same].)21


21

An extensive discussion and analysis of the early state authorities on this

subject is set forth in a Comment on this court’s decision in People v. Freeman,
supra, 80 Cal. 233, appearing at 13 American State Reports 122, 125-147. Many
of the more recent decisions are discussed in Devlin, Toward a State
Constitutional Analysis of Allocation of Powers: Legislators and Legislative
Appointees Performing Administrative Functions (1993) 66 Temp. L.Rev. 1205,
1242-1250.

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X

As demonstrated by the constitutional history and judicial decisions

reviewed above, it is clear that the separation of powers clause of the California

Constitution does not preclude all legislative enactments that authorize the

Legislature itself to appoint an executive officer. Contrary to the assertion of the

Attorney General, however, it does not follow that the California separation of

powers clause places no limits on such legislation. Although the California

decisions in People v. Freeman, supra, 80 Cal. 233, and People v. Langdon,

supra, 8 Cal. 1, discussed above, rejected the broad claim advanced in each of

those cases that under the California Constitution the appointment of an executive

officer is an exclusively executive function and thus that the state constitutional

separation of powers clause categorically precludes the Legislature from

appointing such an officer, in neither case was the court called upon to address the

narrower question whether there are nonetheless some circumstances in which

legislative appointment of an executive officer may violate the separation of

powers clause.

As past California decisions demonstrate, the circumstance that the

California Constitution permits a particular governmental function (such as the

appointment of an executive officer) to be exercised by a particular branch (here,

the legislative branch) does not establish that the separation of powers clause

places no limits on the exercise of that function by that branch (or by an entity

within that branch). For example, although under the California Constitution the

Legislature possesses the general authority to appropriate funds and designate the

purpose for which such funds may and may not be expended, in Mandel v. Myers

(1981) 29 Cal.3d 531, 547-550, we held that in exercising its appropriation

authority, the Legislature may not undertake to readjudicate final judicial

judgments on a case-by-case basis or limit the expenditure of appropriated funds

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to satisfy only those final judicial judgments with which the Legislature (or a

legislative committee) agrees. We concluded in Mandel that such a use of the

appropriation power improperly interferes with the judicial function and

constitutes an improper exercise of judicial authority by the Legislature.

Similarly, in County of Mendocino, supra, 13 Cal.4th 45, 58-59, we concluded that

although the Legislature possesses constitutional authority to declare and

designate legal holidays on which courts will be closed, the Legislature’s exercise

of such authority would violate the separation of powers clause of the California

Constitution were the Legislature to exercise such authority in a manner that

would “ ‘defeat’ or ‘materially impair’ a court’s exercise of its constitutional

power or the fulfillment of its constitutional function.” (See also Obrien v. Jones

(2000) 23 Cal.4th 40, 44 [holding that in light of numerous structural and

procedural safeguards, legislation providing that some of the judges of the State

Bar Court shall be appointed by the executive and legislative branches “does not

defeat or materially impair [the Supreme Court’s] authority over the practice of

law, and thus does not violate the separation of powers provision”]; Brydonjack v.

State Bar (1929) 208 Cal. 439, 444 [“the legislature may put reasonable

restrictions upon constitutional functions of the courts provided they do not defeat

or materially impair the exercise of those functions”].)

In the present case, Marine Forests contends that even if the California

separation of powers clause does not categorically preclude the Legislature from

appointing executive officers, the current Coastal Act provisions nonetheless are

unconstitutional because these provisions — by authorizing the Legislature to

appoint a majority of the voting members of the Commission and permitting the

legislative appointees to be reappointed to successive terms — constitute an

impermissible legislative usurpation of the functions of the executive branch.

Invoking the language of the past California separation of powers decisions noted

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above, Marine Forests contends that the challenged statutes operate to “defeat or

materially impair” the executive branch’s exercise of its constitutional functions in

two distinct respects: (1) by improperly impinging upon the authority granted by

the California Constitution to the Governor (or to other constitutionally prescribed

executive officers), and (2) by compromising the ability of the Coastal

Commission itself to exercise its own executive duties and functions without

undue interference by the Legislature.

We agree that, consistent with the governing California case law, the

appropriate standard by which the statutory provisions in question are to be

evaluated for purposes of the state constitutional separation of powers clause is

whether these provisions, viewed from a realistic and practical perspective,

operate to defeat or materially impair the executive branch’s exercise of its

constitutional functions. We also agree that in applying this standard, it is

appropriate to consider whether the statutes either (1) improperly intrude upon a

core zone of executive authority, impermissibly impeding the Governor (or

another constitutionally prescribed executive officer) in the exercise of his or her

executive authority or functions, or (2) retain undue legislative control over a

legislative appointee’s executive actions, compromising the ability of the

legislative appointees to the Coastal Commission (or of the Coastal Commission

as a whole) to perform their executive functions independently, without legislative

coercion or interference. As we shall explain, however, we conclude, contrary to

Marine Forests’ claims, that the current provisions of the Coastal Act do not

violate the separation of powers clause in either of these respects.22


22

Courts in a number of other states — whose constitutions, like California’s,

do not preclude the legislative appointment of executive officers — have
formulated a variety of standards for evaluating whether a particular statutory

(footnote continued on following page)

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A

For a number of reasons, we believe that it is quite clear that the legislative

appointment of executive officers authorized by the statutory scheme under

consideration does not impermissibly intrude or infringe upon what might be

characterized as the “core zone” of the Governor’s (or any other constitutionally

prescribed executive officer’s) executive functions.

First, the members of the Coastal Commission are not intimate advisors of

the Governor or of any other constitutionally prescribed executive officer but

rather are members of a commission of an independent administrative agency.

Unlike the selection of a confidential aide whose function is to assist the Governor

or other executive official in carrying out the official’s constitutionally prescribed

duties, legislative appointment of a member of such a commission cannot

reasonably be found to impinge upon an exclusively executive prerogative. (Cf.,

(footnote continued from preceding page)

scheme embodying the legislative appointment of an executive officer violates the
separation of powers clause contained in the state’s constitution. (See, e.g., State
ex rel. Woods v. Block, supra, 942 P.2d 428, 435 [Ariz.] [“the court must evaluate
whether the Legislature, through its appointments, has maintained control over an
executive agency in violation of separation of powers”]; Seymour v. Elections
Enforcement Com’n, supra, 762 A.2d 880, 896 [Conn.] [inquiring whether the
“legislative appointment . . . significantly interferes with the essential functions of
the executive branch”]; Sedlak v. Dick, supra, 887 P.2d 1119, 1126-1130 [Kan.]
[looking to “the nature of the power being exercised,” “the degree of control by
the legislative over the executive branch,” “the objective of the legislature,” and
“the practical result”]; State Through Bd. of Ethics v. Green, supra, 566 So.2d
623, 624-626 [La.] [no separation of powers violation “as long as (1) the
appointment of the members by the Legislature was constitutionally valid and
(2) the appointees are not subject to such significant legislative control that the
Legislature can be deemed to be performing executive functions through its
control of the members of the board in the executive branch”].) Although the
wording of the standards set forth in these decisions varies, most of the cases
consider the same range of factors that we discuss below.

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e.g., Obrien v. Jones, supra, 23 Cal.4th 40, 53 [citing cases restricting the

authority of another branch to appoint “assistants upon whom the court relies in

exercising judicial functions”]; County of Mendocino, supra, 13 Cal.4th 45, 65

[same]; accord, Barland v. Eau Claire County (Wis. 1998) 575 N.W.2d 691, 703

[holding that removal of judicial assistant falls within “the judiciary’s core zone of

exclusive power”].) Indeed, the executive positions here at issue are analogous to

those at issue in People v. Freeman, supra, 80 Cal. 233, which, as noted, upheld a

statute providing for the legislative appointment of commissioners of the state

library board.

Second, as discussed above, the Coastal Commission is charged with a

broad variety of functions, including both quasi-legislative and quasi-judicial

functions as well as more traditional executive functions. (Cf. Obrien v. Jones,

supra, 23 Cal.4th 40, 69 (dis. opn. by Kennard, J.) [indicating that in evaluating

the propriety of an “interbranch appointment,” one appropriate consideration is

whether the appointee’s duties are “not purely executive or judicial or legislative,

but of a combined or hybrid sort”]; accord, Seymour v. Elections Enforcement

Com’n, supra, 762 A.2d 880, 897 [noting, in rejecting separation of powers

challenge to legislative appointment of members of an election commission, that

“commission members participate in activities traditionally thought of as judicial,

legislative and, of course, executive”].) Thus, the Coastal Commission is quite

distinct from the ordinary executive departments of state government, whose

heads and policy making officials traditionally have been appointed by the

Governor. (See, e.g., Gov. Code, § 12801 [“Each secretary [of specified state

agencies] shall be appointed by, and hold office at the pleasure of, the

Governor”].)

Third, the subject matter over which the Commission has been granted

authority — land use planning within the coastal zone — is not a matter that the

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California Constitution assigns to the Governor or to any other constitutional

executive officer, or even that, prior to the enactment of the Coastal Act,

traditionally had been overseen by the state executive branch. Instead, the general

subject matter of land use planning is one that traditionally has fallen within the

domain of local governmental entities. Accordingly, the subject matter with

which the Commission deals provides no basis for suggesting that legislative

appointment of members of the Coastal Commission impinges upon a core zone of

executive branch authority for purposes of the state constitutional separation of

powers clause.23


23

We note that in this respect, the statutory provisions here at issue are

fundamentally different from those involved in Obrien v. Jones, supra, 23 Cal.4th
40 (Obrien), a decision heavily relied upon by Marine Forests. In Obrien, we
addressed the question whether a statutory provision that authorized the Governor,
the Senate Rules Committee, and the Speaker of the Assembly each to appoint one
of the five judges of the State Bar Court Hearing Department, with the remaining
two State Bar Court Hearing Department judges to be appointed by this court,
violated the separation of powers clause of the California Constitution. In
analyzing that issue in Obrien, we noted at the outset that the subject matter
encompassed within the duties of the appointees — the disciplining of licensed
attorneys — “is an expressly reserved, primary, and inherent power of this court”
(that is, the California Supreme Court). (Obrien, supra, 23 Cal.4th at p. 48, italics
added.) By contrast, regulation of development on the California coast is not a
function that historically has been exercised by either the Governor or any other
constitutionally designated executive officer.


Obrien is distinguishable from the present case on other substantial grounds

as well. Unlike the constitutional history and decisions reviewed above that
confirm the general validity under the California Constitution of legislative
appointment of executive officials, no similar constitutional history or judicial
precedents were cited in Obrien that indicated the Legislature possesses any
comparable general authority to appoint judicial officers. On the contrary, past
cases had indicated that the appointment of subordinate judicial officers is a
judicial function. (See Obrien, supra, 23 Cal.4th 40, 53, and cases cited.)
Nonetheless,

in

Obrien our court, after considering a variety of features

within the statutory scheme that minimized the potential for conflict, concluded
that although the Supreme Court’s “inherent, primary authority over the practice

(footnote continued on following page)

51

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Finally, although Marine Forests contends that the challenged provisions

conflict with the Constitution’s vesting of the “supreme executive power” of the

state in the Governor and its directive that the “Governor shall see that the law is

faithfully executed” (Cal. Const., art. V, § 1), as we already have explained those

constitutional provisions — which have been part of the California Constitution

since 1849 (see, ante, pp. 30-31) — never have been viewed as granting the

Governor the constitutional authority to appoint all executive officers or as

conflicting with and invalidating any statutory provision that grants the Legislature

the power to appoint an executive officer. (Accord, Buchholtz v. Hill, supra, 13

A.2d 348, 351-352; Biggs v. McBride, supra, 21 P. 878, 880-881.) We have no

occasion in the present case to determine the appropriate relationship between the

Governor’s authority to “see that the law is faithfully executed” and the Coastal

Commission’s authority to perform its statutorily prescribed functions, because

whatever the nature of that relationship may be, the balance of power between the

Governor and the Commission does not depend upon the identity of the persons or

entities who are statutorily authorized to appoint the individual members of the

Commission. The California cases reviewed above clearly demonstrate that the

Governor has no inherent or exclusive constitutional authority to appoint the

members of such a commission, and that a statute does not violate the provisions


(footnote continued from preceding page)

of law extends to determining the composition of the State Bar Court and
appointing State Bar Court judges[,] . . . this authority is not defeated or materially
impaired” by the legislation at issue in that case. (Obrien, supra, 23 Cal.4th 40,
57.) Accordingly, neither the holding nor the analysis in Obrien conflicts with our
conclusion that the current provisions governing the appointment and tenure of the
members of the Coastal Commission do not violate the separation of powers
clause of the California Constitution.

52

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of article V, section 1, or the separation of powers clause of the California

Constitution simply because the statutory provision specifies that the appointment

of an executive officer is to be made by someone other than the Governor.

B

We also conclude that the current provisions of the Coastal Act do not

improperly compromise the ability of the members of the Coastal Commission

individually, or the Coastal Commission as a whole, to perform the Commission’s

functions independently and without undue or improper control by the legislative

branch.

1

With regard to the individual members who are appointed by either the

Senate Rules Committee or the Speaker of the Assembly, Marine Forests

contends initially that because each voting member of the commission exercises

executive functions, the circumstance that the statutes authorize an appointing

authority within the legislative branch to appoint as a voting member of the

commission a person who shares the same “philosophy and politics” as the

legislative appointing authority itself violates the separation of powers clause. The

authority to appoint a person to an executive office, however, is not the

constitutional equivalent of the authority to exercise the executive functions of that

office. The California decisions reviewed above that have upheld the validity of

legislative appointment of executive officers directly refute the claim that the

separation of powers clause of the California Constitution is violated whenever the

Legislature or a legislative entity selects the person who it determines is best

qualified to exercise the particular executive function in question.

Marine Forests further contends that even if a legislative entity’s power

initially to appoint an executive officer does not violate the separation of powers

clause, the current Coastal Act provisions are invalid because they permit the

53

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Senate Rules Committee and the Speaker of the Assembly to reappoint a current

member to a new term after the member’s completion of his or her current term.

Marine Forests acknowledges that the current provisions — by eliminating the

previously existing power of the legislative appointing authorities to remove any

appointee “at will” and by providing instead that each such appointee shall serve a

four-year term — significantly reduces the potential control that the legislative

appointing authorities may have over their appointees. (Accord, State Through

Bd. of Ethics v. Green, supra, 566 So.2d 623, 626 [noting, in upholding statute

authorizing legislative appointment of members of an executive board that “there

is no continuing relationship between the Legislature and the appointees which

extends the Legislature’s control over the appointees in any significant degree

beyond the original appointment”].) Marine Forests maintains, however, that the

appointing authorities’ continued power to reappoint a sitting commissioner itself

is incompatible with the separation of powers clause. We conclude that this claim

lacks merit.

To begin with, Marine Forests cites no authority to support its contention

that a legislative appointing authority’s power to reappoint an incumbent officer is

constitutionally suspect under separation of powers principles. As a general

matter, in the absence of a specific limiting provision, the authority to appoint a

person to an office includes the authority to reappoint the incumbent to a new

term. We have not found any case holding that an appointing authority’s power to

reappoint an incumbent to office grants the appointing authority a constitutionally

impermissible measure of control over the officeholder. In People v. Freeman,

supra, 80 Cal. 233, this court upheld the validity, under the California separation

of powers clause, of a statutory provision authorizing the Legislature to appoint

members of an executive commission. In Freeman, the statute in question

provided that the commission members would serve a four-year term, and nothing

54

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in the statute suggested that the Legislature was not free to reappoint a member to

a new term once his or her existing term had expired.

Moreover, apart from the absence of supporting authority, we believe the

contention is untenable on its merits. Under the current statute, as under the

statute at issue in Freeman, each commissioner appointed by the Senate Rules

Committee or the Speaker of the Assembly is appointed for a four-year term.

Tenure of that substantial length of time — the term of office of the Governor of

California and of the President of the United States — generally has been viewed

as affording a public official a substantial degree of independence. In creating so-

called independent administrative agencies within the federal government that are

intended to act with a considerable degree of autonomy, Congress frequently has

established offices with similar terms, and generally has not precluded the

reappointment of such officers. (See, e.g., 42 U.S.C. § 15323(b) [four-year term

for members of the Federal Election Assistance Commission]; 47 U.S.C. § 154(c)

[five-year term for members of the Federal Communications Commission]; 15

U.S.C. § 78d(a) [five-year term for members of the Securities and Exchange

Commission].) Indeed, the four-year term now served by a Coastal Commission

member appointed by the Senate Rules Committee or the Speaker of the Assembly

is longer than the average length of time that an incumbent has served in the

office of Speaker of the Assembly since the advent of legislative term limits in

1990.24


24

Since 1990, nine individuals have served as Speaker of the Assembly:

Willie L. Brown, Jr., Doris Allen, Brian Setencich, Curt Pringle, Cruz Bustamante,
Antonio R. Villaraigosa, Robert M. Hertzberg, Herb J. Wesson, and Fabian
Núñez.

55

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Further, in addition to prescribing the length of the term of office served by

each of the commission members appointed by the Senate Rules Committee and

the Speaker of the Assembly, the Coastal Act contains numerous procedural

provisions governing the conduct of all commission members with regard to

matters before the Commission. The Act sets forth extensive provisions explicitly

aimed at ensuring the fairness and transparency of Commission action (§§ 30320-

30329), as well as detailed substantive standards that commission members are

duty-bound to apply (see, e.g., § 30604) through decisions, based upon evidence in

the record before the Commission and with reasons stated, that are subject to

judicial review. (§ 30801.) These provisions provide additional significant

safeguards to ensure that, in the actual performance of their official duties,

commission members are not interfered with or controlled by their appointing

authority during their term of office.

2

Marine Forests additionally asserts that even if the current Coastal Act

provisions do not violate the separation of powers clause with regard to individual

members of the Commission, the challenged provisions nonetheless should be

found unconstitutional in relation to their effect on the actions of the Coastal

Commission as a whole. In this regard, Marine Forests contends that the statutes

are fatally flawed because they permit a majority of the voting members of the

Commission to be appointed by the Legislature.

Again, Marine Forests cites no authority supporting the proposition that the

separation of powers clause embodied in article III, section 3, of the California

Constitution prohibits the Legislature from enacting a statute that provides for a

majority of the members of an executive commission to be appointed by the

Legislature. On the contrary, as we already have seen, this court in People v.

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Freeman, supra, 80 Cal. 233, rejected a separation of powers challenge to a statute

authorizing the Legislature to appoint all the members of a state executive board.

In any event, it is an oversimplification and potentially misleading to

describe the Coastal Act provisions here at issue as authorizing the Legislature to

appoint a majority of the voting members of the Coastal Commission.

To begin with, the statute does not authorize the Legislature, as a whole, to

appoint any member of the Commission, but rather provides for the appointment

of one-third of the voting members by the Governor, one-third by the Senate Rules

Committee, and one-third by the Speaker of the Assembly. Although at times the

Speaker of the Assembly and the members of the Senate Rules Committee will

belong to the same political party, that certainly is not invariably the case, and

even when these two appointing authorities happen to represent the same political

party the two will not necessarily share the same views regarding either the best

qualifications for membership on the Coastal Commission or the merits of issues

that are likely to come before the Commission. The appointment structure

established by the current Coastal Act provisions is distinguishable from one

providing for appointment of executive officials by a joint vote of all members of

the Legislature (see, e.g., People v. Langdon, supra, 8 Cal. 1) or by some

comparable mechanism.

In considering the practical effect of this aspect of the statutory scheme, it

is instructive to keep in mind that the provisions of the California Coastal Act

dividing the authority to appoint the members of the Coastal Commission equally

among the Governor, the Speaker of the Assembly, and the Senate Rules

Committee were modeled largely upon the provisions of the 1972 coastal

conservation initiative — a measure placed on the ballot by the efforts of

concerned citizens outside the Legislature. The evident purpose of dividing the

appointment authority in this fashion was to disperse such authority in order to

57

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avoid a situation in which one official who might not be sympathetic to the

purpose and objectives of the Coastal Act could attempt to subvert those aims by

appointing a majority of Commission members who are hostile to those goals. In

this regard, this aspect of the statutory scheme serves an objective that is

analogous to one of the principal purposes of the separation of powers clause, the

avoidance of an aggregation of power in a single entity or officer. (Accord, State

Through Bd. of Ethics v. Green, supra, 566 So.2d 623, 626 [“Of course, the fact of

original appointment may suggest the existence of some influence by the

Legislature over the appointees, but even this possibility of control is dissipated by

the spreading of the appointive powers among the Governor, the Senate, and the

House of Representatives.”]; Parcell v. State (Kan. 1980) 620 P.2d 834, 835-837

[upholding validity of 11-person elections commission, five members of which

were appointed by the governor and six by members of the legislature (two by the

president of the senate, two by the speaker of the house of representatives, one by

the minority leader of the senate, and one by the minority leader of the house of

representatives)].)

Furthermore, under the governing statutes neither the Senate Rules

Committee nor the Speaker of the Assembly has unfettered discretion in making

appointments to the Commission. As noted above, fully one-half of the appointees

of both the Senate Rules Committee and the Speaker of the Assembly must be

local public officials who have been nominated to their respective appointing

authorities by local bodies from each geographic region covered by the Coastal

Act. (§ 30301.2.) This provision affords a further check on the legislative

appointing authorities and represents an additional dispersal of the power of

appointment.

In addition, the recent amendments of the Coastal Act have enhanced the

authority of the Governor in relation to the legislative appointing authorities,

58

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inasmuch as the gubernatorial appointees to the Commission continue to serve at

the pleasure of the Governor whereas the appointees of the Senate Rules

Committee and the Speaker of the Assembly now serve fixed terms. It is also

worth noting that all four nonvoting members of the Commission are part of the

executive branch. (See, ante, p. 12, fn. 4.) (Accord, State ex rel. Woods v. Block,

supra, 942 P.2d 428, 436-437 [“[A]lthough the [advisory] members have no

voting rights, they still have the ability to influence the decisions of the board”].)

C

For all of the reasons discussed above, we conclude that the current

provisions of the Coastal Act governing the composition and tenure of the voting

membership of the Coastal Commission do not violate the separation of powers

provision of the California Constitution. Accordingly, the judgment rendered by

the trial court, enjoining the Commission from exercising non-legislative functions

in the future, cannot be upheld.

XI

Although the relevant portion of the underlying complaint sought only

injunctive relief and we therefore have determined the validity of the judgment by

examining the current provisions of the Coastal Act, the parties have requested, in

light of the Court of Appeal’s conclusion that the prior statutory scheme was

unconstitutional, that we clarify the current status of the numerous actions that

were taken by the Coastal Commission during the time period in which the prior

statutes were in effect. In light of the substantial number of past administrative

matters that potentially might be affected and because the question has been

extensively briefed, we conclude that it is appropriate to address the issue at this

time.

Marine Forests maintains that even if, as we have concluded, the current

version of the Coastal Act is constitutional, the prior version of the statutes was

59

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fatally flawed. Marine Forests asserts in this regard that the Court of Appeal

correctly concluded that the prior statutory scheme — by providing that the

commissioners appointed by the Senate Rules Committee and the Speaker of the

Assembly served at the pleasure of their legislative appointing authority and thus

could be removed by such appointing authorities at will — rendered a majority of

the voting members of the Commission improperly subservient to the Legislature,

and for that reason violated the separation of powers clause of the California

Constitution.25 In response, the Attorney General points out that prior provisions

of the California Constitution, in addition to authorizing the Legislature to

determine how and by whom executive officers should be appointed, authorized

the Legislature to determine the tenure of executive officers and explicitly

provided that when their tenure was not specified, the officer would serve during

the pleasure of the appointing authority. (See Cal. Const. of 1849, art. XI, § 7;

Cal. Const. of 1879, art. XX, § 16.) The Attorney General argues that in light of

these earlier constitutional provisions, the prior version of the Coastal Act —

specifying that all members of the Commission were to serve at the pleasure of

25

In support of this claim, several amici curiae have requested that we take

judicial notice of a partial transcript of a July 1987 hearing before the Coastal
Commission, and of newspaper articles discussing the hearing, that suggest that in
at least one instance during the time that the prior statutory provisions were in
effect, a legislative appointing authority removed a legislative appointee to the
Commission because of the appointee’s substantive position on a pending matter.
Because, as we discuss below (post, pp. 60-65), we conclude that past actions of
the Commission may not be set aside on the basis of the prior appointment and
tenure structure, even if we were to assume that the prior statutory scheme was
unconstitutional, the materials in question would not affect our decision in this
case. For this reason, we decline to take judicial notice of the material in question.
(See, e.g., Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-
1065.) On similar grounds, the additional requests for judicial notice filed by
Marine Forests and other amici curiae also are denied.


60

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their appointing authority — may not properly be found to violate the separation

of powers clause of the California Constitution.

Although there is no question but that the pre-2003 provisions of the

Coastal Act pose a much more serious separation of powers question than the

current provisions of the Act (cf. State ex rel. Woods v. Block, supra, 942 P.2d

428, 438 (conc. & dis. opn. by Martone, J.) [finding that the absence of set terms

for legislative appointees “provides the Legislature indirect, yet substantial control

over the members it appoints”]), we conclude there is no need to determine

definitively the validity of the earlier statutory provisions in order to clarify the

status of the numerous actions that were taken by the Commission at a time when

its members were selected and served pursuant to the provisions of those statutes.

As we shall explain, even if we were to assume (as Marine Forests contends) that

the prior version of the statutes violated the separation of powers clause, the past

actions of the Commission could not properly be set aside on that ground at this

time.

To begin with, the applicable statute of limitations would bar a present

challenge to most of the prior actions of the Commission. (See § 30801 [permit

decisions of the Commission are final if not challenged by writ petition within 60

days]). Contrary to the contention of Marine Forests, a judicial decision that

found the prior version of the applicable statutes unconstitutional would not

provide a basis for recommencing the statute of limitations with regard to past

actions of the Commission. (See, e.g., Howard Jarvis Taxpayers Assn. v. City of

La Habra (2001) 25 Cal.4th 809, 815-817.) Furthermore, with regard to those

actions of the Commission as to which a timely challenge had been filed and that

had proceeded to a final judicial decision, res judicata principles would preclude a

present challenge to the final decision. (See, e.g., Slater v. Blackwood (1975) 15

Cal.3d 791, 795-797.)

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In addition, even with regard to those cases in which a timely separation of

powers challenge to the Commission’s composition has been raised and that

remain pending either before the Commission or the courts, we conclude that

under the “de facto officer” doctrine prior actions of the Commission cannot be set

aside on the ground that the appointment of the commissioners who participated in

the decision may be vulnerable to constitutional challenge. As this court

explained in In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21,

41-42: “The de facto doctrine in sustaining official acts is well established.

[Given the existence of] a de jure office, ‘[p]ersons claiming to be public officers

while in possession of an office, ostensibly exercising their function lawfully and

with the acquiescence of the public, are de facto officers. . . . The lawful acts of

an officer de facto, so far as the rights of third persons are concerned, are, if done

within the scope and by the apparent authority of office, as valid and binding as if

he were the officer legally elected and qualified for the office and in full

possession of it.’ [Citations.]” (See also Pickens v. Johnson (1954) 42 Cal.2d 399,

410 [“There is no question but that . . . the status of a judge de facto attached to his

action. The office to which he was assigned was a de jure office. By acting under

regular assignment under a statute authorizing it he was acting under color of

authority as provided by law. His conduct in trying the cases and rendering

judgment therein cannot here be questioned.”].)

Past California cases make clear that the de facto officer doctrine is

applicable when the officer in question acts “ ‘under color of an election or

appointment by or pursuant to a public unconstitutional law, before the same is

adjudged to be such’ ” (Oakland Pav. Co. v. Donovan (1912) 19 Cal.App. 488,

495, quoting State v. Carroll (1871) 38 Conn. 449 [9 Am.Rep. 409]; see, e.g.,

People v. Elkus (1922) 59 Cal.App. 396, 407-408), and further establish that the de

facto officer doctrine is applicable even when the challenge to the validity of an

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officer’s appointment or qualifications has been timely raised in an administrative

or judicial proceeding contesting the validity of an official action of the officer,

because the doctrine contemplates that a valid challenge to the officer’s

qualifications must be raised and resolved in a separate proceeding. (See, e.g.,

Town of Susanville v. Long (1904) 144 Cal. 362, 364-365; People v. Bowen (1991)

231 Cal.App.3d 783, 789-790; Ensher, Alexander & Barsoom, Inc. v. Ensher

(1965) 238 Cal.App.2d 250, 256-257.)26


26

Marine Forests contends that the de facto officer doctrine should not be

applied in cases in which a challenge to the validity of the Commission’s
composition has been timely raised in the administrative or judicial proceeding, on
the ground that application of the doctrine in such cases improperly would deter
parties from ever raising an objection to provisions governing the appointment or
tenure of Commission members. (Cf. Ryder v. United States (1995) 515 U.S. 177,
182.) The pre-2003 provisions governing the appointment and tenure of members
of the Coastal Commission had been in effect since the enactment of the Coastal
Act in 1976, however, and any individual had ample opportunity to bring an action
challenging, under the separation of powers clause, the validity of those provisions
in light of the statutory duties the commission had been granted.


Furthermore, unlike the situation presented in Ryder where the United

States Supreme Court declined to apply the de facto officer doctrine to an unusual
appointment procedure affecting only seven to ten cases (Ryder v. United States,
supra, 515 U.S. at p. 185), the failure to apply the de facto officer doctrine where
the challenge is to a general statutory provision governing the appointment and
tenure of the members of an administrative agency like the Coastal Commission
potentially would place hundreds or even thousands of administrative rulings at
risk, because once such a challenge has been upheld at the trial court level (or even
simply seriously advanced by one litigant), other litigants before the agency
routinely might proffer such a challenge in every case, threatening the validity of
all subsequent actions of the agency. In the present case, for example, once the
trial court sustained Marine Forests’ separation of powers claim, numerous other
parties, on the same grounds, challenged the Commission’s authority to act.
Although the trial court’s ruling was not a final judicial determination of the
constitutional issue, and the trial court stayed its ruling pending appeal, a failure to
apply the de facto officer doctrine to any proceeding in which the separation of
powers claim timely was raised potentially would place in jeopardy many if not all
of the actions taken by the Commission after the trial court’s ruling. As is

(footnote continued on following page)

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Marine Forests maintains that the de facto officer doctrine is inapplicable

here because the separation of powers challenge relates to the scope of the actions

that the Coastal Commission properly may undertake (assertedly only quasi-

legislative actions, and not executive or quasi-judicial actions) rather than to the

validity of the appointment of the members of the Coastal Commission. We

disagree.

The challenge advanced by Marine Forests relates to the great bulk of the

actions that the Commission was statutorily empowered to undertake, and rests on

the contention that the Commission was not authorized to perform such functions

because two-thirds of its members were appointed and were subject to removal at

will by legislative rather than executive entities. This type of claim differs

fundamentally from a challenge to the Commission’s grant or denial of an

individual permit or its issuance of an individual cease and desist order — an

attack based, for example, on a claim that the Commission’s action is not

supported by substantial evidence or that the particular conditions imposed on a

development permit are not sufficiently related to a legitimate governmental

purpose. Instead, the challenge here at issue rests upon features of the commission

members’ appointment and tenure that would affect the Commission’s authority to

act in all similar quasi-judicial or executive matters.

In essence, Marine Forests contends that there was a constitutional defect in

the statutory provisions governing the appointment and tenure of the commission

members that rendered the Commission not legally qualified to act on any quasi-


(footnote continued from preceding page)

demonstrated by the California decisions cited above, adoption of Marine Forests’
position would defeat the principal purpose underlying the de facto officer
doctrine. (See, e.g., Town of Susanville v. Long, supra, 144 Cal. 362, 365.)

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judicial or executive matter. As past California decisions demonstrate, a principal

purpose of the de facto officer doctrine under California law is to prevent the

crippling of an officer’s or commission’s operations that would occur if this type

of claim (which could affect virtually all of the Commission’s actions) could be

raised in any proceeding challenging an individual action taken by the officer or

commission. This debilitating effect is avoided if such a challenge is brought in a

separate proceeding that focuses directly on the validity of the officer’s or

commission’s status and in which the requested relief, if ultimately granted by a

final judicial decision, would apply only prospectively. (See, e.g., Town of

Susanville v. Long, supra, 144 Cal. 362, 365.) In light of this objective, the

asserted invalidity here at issue is similar to other claimed defects in an officer’s

legal qualifications to which the de facto officer doctrine has been applied.

Indeed, in Buckley v. Valeo, supra, 424 U.S. 1, 142, the United States

Supreme Court effectively applied the de facto officer doctrine in a setting directly

analogous to that presented here. In Buckley, after concluding that the statutory

provisions governing the composition of the Federal Elections Commission at

issue in that case violated the separation of powers doctrine under the federal

Constitution because four of the six voting members of the commission were

appointed by members of Congress, the high court nonetheless went on to uphold

the validity of all past actions of the Commission under the de facto officer

doctrine. The court in Buckley stated in this regard: “It is . . . our view that the

Commission’s inability to exercise certain powers because of the method by which

its members have been selected should not affect the validity of the Commission’s

administrative actions and determinations to this date, including its administration

of those provisions, upheld today, authorizing the public financing of federal

elections. The past acts of the Commission are therefore accorded de facto

validity, just as we have recognized should be the case with respect to legislative

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acts performed by legislators held to have been elected in accordance with an

unconstitutional apportionment plan.” (424 U.S. at p. 142.)27

Marine Forests further contends that the de facto officer doctrine should not

be applied to past actions of the Coastal Commission, because in some instances in

the past, courts have found that certain actions taken by the Coastal

Commission — for example, various requirements imposed by the Commission as

a condition of granting a development permit — may have violated the

constitutional rights of a party or parties before the Commission. (See, e.g.,

Nollan v. California Coastal Com. (1987) 483 U.S. 825.) But Marine Forests fails

to cite any California authority supporting the imposition of such a limitation on

the de facto officer doctrine, a limitation that largely would eviscerate the doctrine

and that finds no support in its underlying purpose. Of course, if a past action of

the Commission remains subject to judicial review and is vulnerable to challenge

on some other ground, the de facto officer doctrine will not provide a bar to such a

challenge. Under the doctrine, however, the circumstance that the statutory

provisions governing the appointment and tenure of the members of the

Commission who acted upon a particular matter might be vulnerable to


27

Indeed, the high court in Buckley permitted the unconstitutionally

constituted Federal Elections Commission to continue to act for 30 days after the
court’s decision was issued, explaining: “We also draw on the Court’s practice in
the apportionment and voting rights cases and stay, for a period not to exceed 30
days, the Court’s judgment insofar as it affects the authority of the Commission to
exercise the duties and powers granted it under the Act. This limited stay will
afford Congress an opportunity to reconstitute the Commission by law or to adopt
other valid enforcement mechanisms, without interrupting enforcement of the
provisions the Court sustains, allowing the present Commission in the interim to
function de facto in accordance with the substantive provisions of the Act.”
(Buckley v. Valeo, supra, 424 U.S. at pp. 142-143.)

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constitutional challenge provides no independent basis for overturning the action

taken by the Commission.28

Accordingly, we conclude that even if we were to assume that the trial

court and the Court of Appeal were correct in determining that the prior version of

the Coastal Act provisions governing the composition and tenure of the members

of the Coastal Commission violated the separation of powers clause of the

California Constitution, past actions of the Commission could not properly be

challenged on that ground.

XII

For the reasons discussed above, the judgment rendered by the Court of

Appeal, affirming the trial court’s judgment enjoining the Coastal Commission

from granting, denying, or conditioning permits and from hearing cease and desist

orders, is reversed.

GEORGE, C.J.

WE CONCUR:
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

BROWN,

J.

MORENO,

J.


28

In support of the argument that past actions of the Commission should be

subject to challenge on the basis of the alleged invalidity of the pre-2003 Coastal
Act provisions, Marine Forests and several amici curiae argue that the 2003
legislation should not be given retroactive effect. We agree that the 2003
provisions apply only prospectively, but the application of the de facto officer
doctrine is not affected by this conclusion. As explained above, the de facto
officer doctrine provides that even if the statutory provision under which a public
officer is appointed is vulnerable to constitutional challenge, official actions taken
by the public officer before the invalidity of his or her appointment has been
finally adjudicated may not be overturned on that basis.

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CONCURRING OPINION BY KENNARD, J.

In Obrien v. Jones (2000) 23 Cal.4th 40, as here, this court considered a

challenge under the California Constitution’s separation of powers provision (Cal.

Const., art. III, § 3) to legislation authorizing interbranch appointments. In both

cases, this court rejected the challenge. In Obrien I dissented (23 Cal.4th at p. 63),

while here I concur, for reasons I now explain.

The laws at issue in Obrien v. Jones (2000) 23 Cal.4th 40 granted officers

of the executive and legislative branches (the Governor, the Senate Rules

Committee, and the Speaker of the Assembly) the authority to appoint and

reappoint judges of the State Bar Court (Bus. & Prof. Code, § 6079.1) and altered

that court’s composition by eliminating public representation (id., § 6086.65).

Summarizing my reasons for concluding that these laws were invalid, I wrote:

“Because the State Bar Court operates as an arm of this court in hearing attorney

discipline matters, and because this court has primary authority over attorney

discipline, judges of the State Bar Court are subordinate judicial officers that must

be answerable only to this court. Because the law at issue makes State Bar Court

judges subservient to members of the political branches, and because it alters the

composition of the State Bar Court in a way likely to reduce public confidence in

the attorney discipline system, the law is invalid under the separation of powers

clause of the California Constitution.” (Obrien v. Jones, supra, 23 Cal.4th at

p. 63.)

1

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The law at issue here (Pub. Resources Code, § 30301) grants the Governor,

the Senate Rules Committee, and the Speaker of the Assembly authority to appoint

members of the California Coastal Commission, an administrative agency within

the executive branch having as its main task the regulation of land use in the

state’s coastal areas. In performing this task, the commission does not act as an

arm of the Governor or of any other executive branch officer, but instead the

commission operates independently. Like many administrative agencies, the

commission’s role is not purely executive, but instead much of its work is quasi-

legislative and quasi-judicial. As I have written, interbranch appointments are

justified when the appointee’s duties have this hybrid character. (Obrien v. Jones,

supra, 23 Cal.4th at p. 69 (dis. opn. of Kennard, J.).)

In brief, the interbranch appointment laws at issue in Obrien, in my view,

improperly invaded this court’s authority over attorney discipline, whereas the

interbranch appointment laws at issue here do not improperly invade the

traditional authority of the Governor or of any other constitutional officer of the

executive branch. Moreover, the hybrid character of the California Coastal

Commission’s duties provide adequate justification for interbranch appointments.

For these reasons, I have added my signature to the court’s opinion.

KENNARD,

J.

2

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CONCURRING OPINION BY BAXTER, J.




I agree generally with the separation of powers test stated by the majority,

and with its application of that test to the narrow circumstances of this particular

case. In light of the unique history and function of the Coastal Commission

(Commission), I accept the majority’s conclusion that the current version of the

California Coastal Act (Coastal Act; Pub. Resources Code, § 30000 et seq.)1 does

not violate the separation of powers by providing that the Governor, the Senate

Rules Committee, and the Speaker of the Assembly shall each appoint one-third of

the Commission’s voting members. I also concur that, technically, we may

confine our analysis to the law as currently in effect, because this case concerns

only the prospective validity of an injunction, and the “de facto officer” doctrine

would protect the official acts of commissioners who held their offices, under

color of authority, pursuant to the prior scheme.

As the majority suggests, the Commission is a modern, somewhat hybrid

statutory creation. It has succeeded, on behalf of the state, to certain land use

planning functions—executive, quasi-legislative, and quasi-judicial—that were

traditionally the province of local government. Though formally lodged within the

executive branch, the Commission has an independent mission. Neither the

Commission nor its members directly assist the Governor, or any other

constitutional executive officer, in carrying out that officer’s prescribed duties.


1

All further unlabeled statutory references are to the Public Resources Code.

1

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Hence, legislative participation in appointing the Commission’s members does not

“impinge[ ] upon a core zone of executive branch authority” (maj. opn., ante, at

p. 51), or upon an “exclusively executive prerogative” (id., at p. 49), as prohibited

by the separation of powers clause.

Moreover, safeguards contained in the current version of the Coastal Act

ensure Commissioners, once in office, a substantial measure of insulation from

their appointing authorities. Hence, the law’s appointment provisions, as now in

effect, “do not improperly compromise the ability of the . . . Commission[’s]

[members] individually, or [of] the . . . Commission as a whole, to perform the

Commission’s functions independently” of the legislative branch. (Maj. opn.,

ante, at p. 53.)

The individual history, nature, and function of this agency make me

especially reluctant to overturn the current statutory method of appointing its

voting members. In particular, I am mindful that the Commission’s long tradition

of membership by both state and local representatives, with substantial

appointment power vested in both the executive and legislative branches of state

government, originated with the voters of California.

As the majority recount, today’s Commission has its genesis in a 1972

initiative measure, Proposition 20, enacted by the voters at the November 7, 1972

General Election (hereafter Proposition 20). This measure created a statewide

agency, the California Coastal Zone Conservation Commission (1972 statewide

commission)—the direct predecessor of the present Commission—as well as six

regional commissions (1972 regional commissions) covering the affected coastal

areas. (Former §§ 27200-27243, as enacted by Prop. 20.) Each of the 1972

regional commissions included an equal number of local officials and public

members—the latter appointed, one-third each, by the Governor, the Senate Rules

Committee, and the Assembly Speaker. (Former § 27201, 27202, subd. (d), as

2

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enacted by Prop. 20.) The 1972 statewide commission itself had 12 voting

members—six regional representatives, one appointed by each 1972 regional

commission from among its own members, and six public members appointed,

one-third each, by the Governor, the Senate Rules Committee, and the Assembly

Speaker. (Former §§ 27200, 27202, subd. (d), as enacted by Prop. 20.) The 1972

initiative law was repealed, by its own terms, as of January 1, 1977. (Former

§ 27650, as amended by Stats. 1974, ch. 897, § 2, p. 1900.)

The initiative’s successor legislation, the Coastal Act (§ 30000 et seq., as

enacted by Stats. 1976, ch. 1330, p. 5951 et seq.), created the present statewide

Commission, as well as six successor regional commissions that would terminate

no later than January 1, 1981. (Former §§ 30300-30305, as enacted by

Stats. 1976, ch. 1330, § 1, pp. 5966-5969.) The voting membership of the

statewide Commission, like that of its 1972 predecessor, included six regional

representatives and six statewide public members—the latter appointed equally, as

before, by the Governor, the Senate Rules Committee, and the Assembly Speaker.

(Former § 30301, subds. (d), (e), as enacted by Stats. 1976, ch. 1330, § 1, p. 5966.)

In turn, the regional commissions were constituted, and their members were

appointed, essentially as under the 1972 initiative scheme. So long as a regional

commission remained in existence, its representative on the statewide Commission

was selected by the regional commission itself, from among its own members, as

under prior law. When a regional commission ceased to exist, its representative

on the statewide Commission would be replaced by a city councilperson or county

supervisor from that region, selected from a list of such officials nominated at the

local level. The power to appoint this new representative from the list of

nominees fell directly to the Governor, the Senate Rules Committee, or the

Assembly Speaker according to a specified rotation, so as to ensure that, once all

the regional commissions ceased existence, each appointing authority would

3

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choose an equal number of regional representatives to the statewide Commission.

(Former §§ 30301, subds. (d), (e), 30301.2, 30303, as enacted by Stats. 1976,

ch. 1330, § 1, pp. 5966-5967.)

After all the regional commissions had terminated, the Coastal Act was

amended to eliminate reference to them, and to confirm that the Governor, the

Senate Rules Committee, and the Assembly Speaker shall each appoint one-third

of the statewide Commission’s 12 voting members. As has been true since the

regional commissions ceased existence, this membership is equally divided

between regional representatives, chosen from lists of eligible local officials

submitted by local nominating bodies, and statewide public members. (§ 30301,

subds. (d), (e), as amended by Stats. 1991, ch. 285, § 5, p. 1796; § 30301.2,

subd. (a), as amended by Stats. 1991, ch. 285, § 6, p. 1796.)

This evolution of the scheme for appointment of the Commission’s voting

members, though complex, reflects a continuing adherence to the electorate’s

original desire that the membership of the statewide agency charged with

protecting California’s coastal resources should be carefully balanced between

statewide and local interests, and that appointments to the agency should come

from both the executive and legislative branches. Indeed, retention of this system

under current law does not suggest a “power grab” instigated by the Legislature

itself, but rather an acceptance of the electorate’s design, as set forth in the 1972

initiative. After the Commission has operated for some three decades under this

scheme, we would be hard-pressed to find that all, or at least most, of its members

have been appointed unconstitutionally.

That said, I reserve the right to examine, on a case-by-case basis, other

statutory schemes for legislative participation in naming persons to hold positions

in the executive branch, as such schemes may now or hereafter exist. My

concurrence in today’s judgment is narrowly confined to the current Coastal Act.

4

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It does not constitute any concession on my part that the Legislature generally may

arrogate such nominating authority to itself without running afoul of the separation

of powers clause.

The Founders recognized the Legislature as “the branch most likely to

encroach on the powers of the other branches.” (Carmel Valley Fire Protection

Dist. v. State of California (2001) 25 Cal.4th 287, 298.) Legislators may often

have a political incentive to enhance their own authority and influence at the

expense of the executive branch and its officials. Such legislative schemes must

be scrutinized with the utmost care to ensure that the constitutional functions and

prerogatives of the executive are carefully preserved.

Finally, though it is not strictly necessary to address the issue, I note

I would find that the Coastal Act was constitutionally flawed until amended in

2003. Prior to this amendment, the statute provided that all the Commission’s

voting members, including those appointed by the Senate Rules Committee and

the Assembly Speaker, would serve “for two years at the pleasure of their

appointing power.” (Former § 30312, subd. (b), as enacted by Stats. 1976, ch.

1330, § 1, p. 5970, italics added.) Thus, under the former law, the appointing

officials or bodies, including those from the Legislature, could remove their

Commission appointees at will.

The pre-2003 version was in effect when this case came before the Third

District Court of Appeal. That court struck down the scheme, concluding that the

legislative power both to appoint and to remove a majority of the Commission’s

members violated the separation of powers. As Presiding Justice Scotland stated

in his opinion for the court: “[Former] [s]ection 30312 gives the Speaker of the

Assembly and the Senate Committee on Rules virtually unfettered authority over

the appointment of a majority of the Commission’s members, and wholly

unfettered power to remove those members at the will of the Legislature. The

5

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presumed desire of those members to avoid being removed from their positions

creates an improper subservience to the legislative branch of government. . . .

Consequently, this statutory scheme gives the Legislature excessive control over

the Commission in the exercise of powers, and in the execution of duties, that are

executive in character.” (Italics added.) Spurred by the Court of Appeal’s

decision, the Legislature promptly amended the law to the form now before us.

(§ 30312, as amended by Stats. 2003, 2d Ex.Sess., ch. 1X, § 1.)

Removal at pleasure was an implicit feature of the 1972 commissions

established by Proposition 20. (See Brown v. Superior Court (1975) 15 Cal.3d 52

[1972 regional commissioners].) To the extent the removal power was thus part of

the voters’ original design in 1972, it is due considerable deference. Nonetheless,

I concur fully in Presiding Justice Scotland’s conclusion that the pre-2003 version

of the Coastal Act overstepped constitutional bounds insofar as it included a

legislative removal power. Quite clearly, if officials of the legislative branch have

moment-by-moment control over the tenure of most of an executive agency’s

voting members, the agency cannot perform its executive functions free of undue

legislative influence. Accordingly, the removal provision contravened the second

prong of the test applied by the majority (see discussion, ante), and thus violated

the separation of powers.















BAXTER, J.

I CONCUR:

BROWN, J.

6

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CONCURRING OPINION BY WERDEGAR, J.




I agree with the majority that, even were this court to hold that the

California Coastal Commission’s (Commission) former appointment structure

made it essentially a legislative agency prohibited from exercising executive or

judicial powers under separation-of-powers principles, the de facto officer doctrine

(or a closely related rule) would bar a separation-of-powers challenge to particular

executive and quasi-judicial acts of the Commission brought before a court had

finally determined, in an action for injunctive or declaratory relief, that the

performance of such acts was unconstitutional. For that reason, as the majority

explains, we need not decide whether the Commission’s former structure did

render it subservient to the Legislature. (Maj. opn., ante, at p. 61.)

I write separately to stress why the de facto officer doctrine (or a closely

related rule) applies here. While plaintiffs’ separation-of-powers challenge is not,

strictly speaking, an attack on the qualifications or appointment of any particular

officer, it does, as the majority observes, rest on aspects of the Commission

members’ appointment and tenure; consequently, if successful, it would, like a

collateral attack on an officer’s qualifications or appointment to office, undermine

the validity of all the Commission’s executive or quasi-judicial acts. (Maj. opn.,

ante, at p. 64.) Because of the reasonable public reliance on an agency’s prima

facie legitimacy, to require that this type of challenge be brought first in an action

for prospective relief rather than in a direct attack on past agency actions is

appropriate and fair.

1

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The majority, as I understand it, does not embrace any broader doctrine

precluding a party from raising fundamental flaws in an agency action directly in

challenges to those actions. As a general rule, individuals aggrieved by

government actions affecting them or their property may present fundamental

legal challenges in a timely complaint or petition directly attacking the

government action. (See Travis v. County of Santa Cruz (2004) 33 Cal.4th 757,

767-769 [challenge to permit conditions imposed under allegedly unconstitutional

and preempted ordinance]; Howard Jarvis Taxpayers Assn. v. City of La Habra

(2001) 25 Cal.4th 809, 819-822 [challenge to continued collection of tax under

ordinance allegedly adopted in violation of state law].) The court’s opinion today

should not be read as suggesting, instead, that a separate action for declaratory or

injunctive relief must generally be successfully pursued before an agency’s actions

can be challenged as unconstitutional.

With this understanding, I have signed the majority opinion.

WERDEGAR, J.


I CONCUR:

BROWN, J.

2

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Marine Forest Society v. California Coastal Commission
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 104 Cal.App.4th 1232
Rehearing Granted

__________________________________________________________________________________

Opinion No. S113466
Date Filed: June 23, 2005
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Charles C. Kobayashi

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank and Tom
Greene, Chief Assistant Attorneys General, J. Matthew Rodriquez, Assistant Attorney General, Joseph
Barbieri, Alice Busching Reynolds and Lisa Trankley, Deputy Attorneys General, for Defendants and
Appellants.

Robert Garcia, Katrina D. McIntosh; Law Office of J. William Yeates, J. William Yeates, Mary U. Akens,
Keith G. Wagner; California Environmental Law Project and Laurens H. Silver for Planning and
Conservation League, Sierra Club, Mexican American Legal Defense and Educational Fund,
Environmental Defense Center, Natural Resources Defense Council, League for Coastal Protection,
Monterey Bay Aquarium, Surfrider Foundation, Defenders of Wildlife, National Audubon Society –
California, Amigos de Bolsa Chica, Big Sur Land Trust, Cal Beach Advocates, California Coastkeeper
Alliance, California Coastal Protection Network, The Center for Law in the Public Interest, Earth Alert!,
Heal the Bay, Latino Urban Forum, The Ocean Conservancy, Ocean Outfall Group, Orange County
Coastkeeper, San Diego Baykeeper, Santa Barbara Channelkeeper, SLO Coast Alliance, Vote the Coast,
Wetlands Action Network and Wildlands Restoration Team as Amici Curie on behalf of Defendants and
Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

The Zumbrun Law Firm, Ronald A. Zumbrun and Mark A. Teh for Plaintiffs and Respondents.

Sheppard, Mullin, Richter & Hampton, Joseph E. Petrillo, David P. Lanferman, Peter F. Ziblatt; Law
Offices of Thomas D. Roth and Thomas D. Roth for California Building Industry Association, Home
Builders Association of Northern California, Building Industry Legal Defense Foundation, Building
Industry Association of San Diego and California Association of Realtors as Amici Curiae on behalf of
Plaintiffs and Respondents.

James S. Burling, M. Reed Hopper and Anne M. Hayes for Pacific Legal Foundation as Amicus Curiae on
behalf of Plaintiffs and Respondents.

---

Page 2 – S113466 – counsel continued

Attorneys for Respondent:

Jenkins & Hogin, Christi Hogin, City Attorney, and Gregg Kovacevich for the City of Malibu as Amicus
Curiae on behalf of Plaintiffs and Respondents.

Berger & Norton, Manatt, Phelps & Phillips, and Michael M. Berger for Signal Landmark and Hearthside
Homes as Amici Curiae on behalf of Plaintiffs and Respondents.

Karen Fumi Ibara as Amicus Curiae on behalf of Plaintiffs and Respondents.

Cox, Castle & Nicholson and Stanley W. Lamport for Land Use Preservation Defense Fund as Amicus
Curiae on behalf of Plaintiffs and Respondents.

Law Offices of Michael T. Larsen and Michael T. Larsen for Encinitas Country Day School, Inc., Kathleen
Porterfield and M&M Development, LLC as Amici Curiae on behalf of Plaintiffs and Respondents.

Stan Furmanski as Amicus Curiae on behalf of Plaintiffs and Respondents.

Shaub, Williams & Nunziato, Edward E. Vaill and David R. Shaub for Californians for Local Coastal
Planning as Amicus Curiae on behalf of Plaintiffs and Respondents.

Robert Clark as Amicus Curiae on behalf of Plaintiffs and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph Barbieri
Deputy Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612-0550
(510) 622-2139

Ronald A. Zumbrun
The Zumbrun Law Firm
3800 Watt Avenue, Suite 101
Sacramento, CA 95821
(916) 486-5900

---

Opinion Information

Date:	Docket Number:
Thu, 06/23/2005	S113466

Disposition
Jun 23 2005	Opinion: Reversed

Dockets
Feb 10 2003	Petition for review filed   by A.G. for aplts. Depublication requested.
Feb 10 2003	Received:   Aplts' Request for Judicial Notice
Feb 21 2003	Received letter from:   Attorney General dated 2/20/03.
Feb 28 2003	Answer to petition for review filed   and answer to request for depublication by counsel for respondents (Marine Forests Society & Rodolphe Streichenberger). (Filed in Sacramento.)
Mar 4 2003	Received Court of Appeal record   one doghouse
Apr 9 2003	Note:   Conflict letter & form sent to counsel.
Apr 9 2003	Petition for review granted; issues limited (civil case)   Request for judicial notice granted. In addition to the issue set forth in the petition for review, the parties are requested to brief the following issues: (1) Assuming the Commission's decision in the present case is constitutionally defective in the manner stated by the Court of Appeal, what is the appropriate remedy available to Marine Forests Society (2) What effect would the holding of the Court of Appeal have on past and other currently pending decisions of the California Coastal Commission? (3) Does the February 20, 2003 amendment to Public Resources Code section 30312 eliminate the separation-of-powers defect found by the Court of Appeal, or is the composition of the Coastal Commission still vulnerable to a separation-of-powers challenge? Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 9 2003	Record requested   Requested balance of record.
Apr 11 2003	Received Court of Appeal record   vol 2-one doghouse
Apr 22 2003	Certification of interested entities or persons filed   By counsel for Respondent {Marine Forests Society et al.,}.
May 6 2003	Received:   Application to file over-length brief from counsel for appellant. (holding for opening brief on the merits to be submitted)
May 9 2003	Received:   over-length opening brief on the merits from counsel for appellant (California Coastal Commission).
May 9 2003	Application to file over-length brief filed   by counsel for appellant.
May 9 2003	Opening brief on the merits filed   (with permission) by counsel for appellant (California Coastal Commission).
May 22 2003	Request for extension of time filed   Respondent requesting to June 27, 2003 to file answer brief on the merits and also to file its respondents' brief filed in the court of appeal.
May 23 2003	Extension of time granted   Respondent's Request for Extension of Time, filed on May 22, 2003, is granted in part and denied in part. The due date on Respondent's Answer Brief is extended to Monday, June 16, 2003. No further extension of time will be granted. The request to file Respondent's Brief in the Court of Appeal and a separate Answer Brief on the issues posed by this court is denied. Respondent shall file a single Answer Brief addressing all issues, but that brief may include any argument contained in Respondent's Court of Appeal brief if Respondent so chooses. If necessary, Respondent may request permission to file an oversized brief.
Jun 10 2003	Received:   (via fax) application for leave to file oversized answer brief on the merits not to exceed 18,500 words.
Jun 11 2003	Application to file over-length brief filed   from respondent. (granted - order being prepared)
Jun 13 2003	Order filed   Application of respondent to file an oversized answer brief on the merits not to exceed 18,500 words is hereby granted. (Answer brief due June 16, 2003 per order filed 5/23/03.)
Jun 16 2003	Answer brief on the merits filed   with permission in Sacramento by counsel for respondents (Marine Forests Society et al.).
Jun 16 2003	Request for judicial notice filed (in non-AA proceeding)   in Sacramento by counsel for respondents.
Jun 26 2003	Opposition filed   by counsel for appellant. Opposition to request for judicial notice filed on 6/16/03 by respondent.
Jul 7 2003	Received document entitled:   Application of California Coastal Commission for leave to file oversized reply brief. (to court for permission to file)
Jul 8 2003	Reply brief filed (case fully briefed)   with permission by counsel for appellant (California Coastal Commission).
Jul 11 2003	Application filed to:   Application of California Coastal Commission for leave to file appendix of state court decisions.
Jul 14 2003	Request for judicial notice filed (in non-AA proceeding)   by California Coastal Commission.
Jul 16 2003	Order filed   The application of the California Coastal Commission to file Appendix of State Court Decisions is hereby granted. (2 volumes)
Jul 22 2003	Opposition filed   Respondents' opposition to appellant's request for judicial notice of California Coastal Commission.
Aug 1 2003	Received application to file amicus curiae brief; with brief   City of Malibu (in support of respondents]
Aug 6 2003	Received application to file amicus curiae brief; with brief   by California Building Industry Association et al. in support of respondents.
Aug 6 2003	Received application to file amicus curiae brief; with brief   by Planning and Conservation League, Sierra Club etc. in support of appellants (CA Coastal Commission).
Aug 6 2003	Received application to file Amicus Curiae Brief   by Pacific Legal Foundation in support of respondents.
Aug 6 2003	Received application to file amicus curiae brief; with brief   Dr. Stan Furmanski, MD [in support of respondent]
Aug 6 2003	Received application to file amicus curiae brief; with brief   Karen Fumi Ibara [in support of respondent]
Aug 7 2003	Received application to file amicus curiae brief; with brief   Land Use Preservation Defense Fund and reqt for judicial notice [in support of respondent]
Aug 7 2003	Received application to file amicus curiae brief; with brief   by Californians for Local Coastal Planning in support of respondents.
Aug 7 2003	Received application to file amicus curiae brief; with brief   Robert Clark [in support of respondent]
Aug 7 2003	Received application to file amicus curiae brief; with brief   Signal Landmark & Hearthside Homes w/reqt for judicial notice [in support of respondent]
Aug 8 2003	Received application to file Amicus Curiae Brief   by Encinitas Country Day School, Inc., Kathleen Porterfield and M&M Development, LLC in support of respondents.
Aug 8 2003	Permission to file amicus curiae brief granted   Pacific Legal Foundation
Aug 8 2003	Amicus Curiae Brief filed by:   The application of Pacific Legal Foundation for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 8 2003	Permission to file amicus curiae brief granted   California Building Industry Association et al.
Aug 8 2003	Amicus Curiae Brief filed by:   The application of California Building Industry Association et al. for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due in 20 days.
Aug 8 2003	Request for judicial notice filed (in non-AA proceeding)   by amicus California Building Industry Association et al.
Aug 8 2003	Permission to file amicus curiae brief granted   City of Malibu
Aug 8 2003	Amicus Curiae Brief filed by:   The application of City of Malibu for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 12 2003	Permission to file amicus curiae brief granted   Planning and Conservation League, et al.
Aug 12 2003	Amicus Curiae Brief filed by:   The application of Planning and Conservation League, et al. for permission to file an amicus curiae brief in support of appellants is hereby granted. Answer due in 20 days.
Aug 12 2003	Request for judicial notice filed (in non-AA proceeding)   by amicus Planning and Conservation League, et al.
Aug 12 2003	Permission to file amicus curiae brief granted   Californians for Local Coastal Planning
Aug 12 2003	Amicus Curiae Brief filed by:   The application of Californians for Local Coastal Planning for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due in 20 days.
Aug 13 2003	Permission to file amicus curiae brief granted   Karen Fumi Ibara
Aug 13 2003	Amicus Curiae Brief filed by:   The application of Karen Fumi Ibara for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days
Aug 13 2003	Permission to file amicus curiae brief granted   Dr. Stan Furmanski, M.D.
Aug 13 2003	Amicus Curiae Brief filed by:   The application of Dr. Stan Furmanski, M.D. for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 13 2003	Permission to file amicus curiae brief granted   Encinitas Country Day School, Inc., Kathleen Porterfield and M&M Development, LLC
Aug 13 2003	Amicus Curiae Brief filed by:   The application of Encinitas Country Day School, Inc., Kathleen Porterfield and M&M Development, LLC for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 15 2003	Received document entitled:   Notice of Errata - Certification of word count re amicus brief from California Building Industry Assoc et al.
Aug 15 2003	Permission to file amicus curiae brief granted   Land Use Preservation Defense Fund
Aug 15 2003	Amicus Curiae Brief filed by:   The application of Land Use Preservation Defense Fund for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 15 2003	Request for judicial notice filed (in non-AA proceeding)   by amicus Land Use Preservation Defense Fund.
Aug 15 2003	Permission to file amicus curiae brief granted   Robert Clark
Aug 15 2003	Amicus Curiae Brief filed by:   The application of Robert Clark for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 15 2003	Permission to file amicus curiae brief granted   Signal Landmark and Hearthside Homes.
Aug 15 2003	Amicus Curiae Brief filed by:   The application of Signal Landmark and Hearthside Homes for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Aug 15 2003	Request for judicial notice filed (in non-AA proceeding)   by amicus Signal Landmark and Hearthside Homes.
Aug 18 2003	Opposition filed   by appellant California Coastal Commission. Opposition to request for judicial notice of amici curiae Home Builders Association of Northern California et al. (in docket as: Request for judicial notice by California Building Industry Association et al. filed 8/8/03.)
Aug 22 2003	Request for extension of time filed   by appellant (California Coastal Commission ) requesting to Sept. 4, 2003 to file a single answer to amicus briefs filed on behalf of respondents.
Aug 22 2003	Opposition filed   by appellant California Coastal Commission. Opposition to request for judicial notice of amici curiae Signal Landmark et al., Californians for Local Coastal Planning and Land Use Preservation Defense Fund.
Aug 25 2003	Extension of time granted   On application of appellant, California Coastal Commission and good cause appearing, it is ordered that the time to serve and file a single answer to all amicus curiae briefs filed on behalf of respondents is extended to and including September 4, 2003.
Aug 29 2003	Response to amicus curiae brief filed   by respondents. Answer to amicus brief filed by Planning and Conservation League et al in support of appellants.
Sep 4 2003	Response to amicus curiae brief filed   by appellant (California Coastal Commission).
Feb 23 2004	Association of attorneys filed for:   Amici Curiae California Building Industry Assoc., Home Builders Assoc. of No. Calif., the Calif. Chamber of Commerce, the Building Industry Assoc. of San Diego, and the Calif. Assoc. of Realtors associate Thomas D. Roth and the Law offices of Thomas D. Roth as counsel in this matter.
Sep 28 2004	Change of contact information filed for:   Attorney Michael M. Berger, counsel for amicus curiae Signal Landmard and Hearthside Homes. The law firm of Berger & Norton merged its practice into the law firm of Manatt, Phelps & Phillips located at 11355 W. Olympic Blvd., LA, CA 90064.
Nov 23 2004	Filed:   letter from (non-party) Ed Ghandour requesting case be set for oral argument.
Dec 22 2004	Supplemental briefing ordered   The parties are requested to file supplemental letter briefs addressed to the following issue: What effect, if any, does the doctrine that "[b]ecause relief by injunction operates in the future, appeals of injunctions are governed by the law in effect at the time the appellate court gives its decision" (6 Witkin, Cal. Procedure (4th ed. 1997) Provisional Remedies, ? 399, pp. 324-325 & cases cited; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, ? 332, p. 373 & cases cited) have on the resolution of the issues in this case? The parties must file simultaneous supplemental briefs in the San Francisco office of the Supreme Court on or before January 17, 2004. Simultaneous reply briefs may be filed on or before January 24, 2004. Any amicus curiae that wishes to file a brief on this issue must file an application to file such a brief, accompanied by a copy of the proposed brief, on or before January 17, 2004. Werdegar, J., was absent and did not participate.
Jan 18 2005	Letter brief filed   by respondents - Marine Forests Society et al.
Jan 18 2005	Letter brief filed   by appellants - California Coastal Commission et al.
Jan 18 2005	Request for judicial notice filed (granted case)   by appellants - California Coastal Commission et al.
Jan 18 2005	Received application to file Amicus Curiae Brief   by Californians for Local Coastal Planning in support of respondents.
Jan 18 2005	Received application to file Amicus Curiae Brief   by California Building Industry Assoc. et al. in support of respondents.
Jan 20 2005	Permission to file amicus curiae brief granted   California Building Industry Assoc. et al.
Jan 20 2005	Amicus curiae brief filed   by California Building Industry Assoc., Home Builders Assoc. of Northern Calif., the Building Industry Association of San Diego, and the California Association of Realtors in support of respondents. Answer due on or before January 24, 2005.
Jan 20 2005	Permission to file amicus curiae brief granted   Californians for Local Coastal Planning
Jan 20 2005	Amicus curiae brief filed   by Californians for Local Coastal Planning in support of respondents. Answer due on or before January 24, 2005.
Jan 24 2005	Filed:   Reply letter brief filed by respondents - Marine Forests Society et al. (Fax filing - hard copies recv'd 1/26/05 from CA3)
Jan 24 2005	Filed:   Reply letter brief filed by (AG) appellants - California Coastal Commission et al.
Mar 8 2005	Case ordered on calendar   Wed. 4/6/05 @2pm - Los Angeles
Mar 18 2005	Request for Extended Media coverage Filed   by The California Channel
Mar 23 2005	Request for Extended Media coverage Granted   The request for extended media coverage, filed 3/18/05 is granted, subject to the conditions set forth in rule 980, California Rules of Court. Brown, J., is of the opinion the request should be denied.
Apr 6 2005	Cause argued and submitted
Jun 23 2005	Opinion filed: Judgment reversed   Majority Opinion by George, C.J. joined by Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ. Concurring Opinion by Kennard, J. Concurring Opinion by Baxter, J. - - - - - joined by Brown, J. Concurring Opinion by Werdegar, J. - - - - - joined by Brown, J.
Jul 26 2005	Remittitur issued (civil case)
Jul 28 2005	Received:   Receipt for remittitur from the 3 DCA.
Sep 27 2005	Received:   Notice that the petition for writ of certiorari was filed on September 20, 2005.
Nov 7 2005	Received:   letter from U.S. Supreme Court advising this court that the petition for writ of certiorari was denied.

Briefs
May 9 2003	Opening brief on the merits filed
Jun 16 2003	Answer brief on the merits filed
Jul 8 2003	Reply brief filed (case fully briefed)
Aug 8 2003	Amicus Curiae Brief filed by:
Aug 8 2003	Amicus Curiae Brief filed by:
Aug 8 2003	Amicus Curiae Brief filed by:
Aug 12 2003	Amicus Curiae Brief filed by:
Aug 12 2003	Amicus Curiae Brief filed by:
Aug 13 2003	Amicus Curiae Brief filed by:
Aug 13 2003	Amicus Curiae Brief filed by:
Aug 13 2003	Amicus Curiae Brief filed by:
Aug 15 2003	Amicus Curiae Brief filed by:
Aug 15 2003	Amicus Curiae Brief filed by:
Aug 15 2003	Amicus Curiae Brief filed by:
Aug 29 2003	Response to amicus curiae brief filed
Sep 4 2003	Response to amicus curiae brief filed
Jan 20 2005	Amicus curiae brief filed
Jan 20 2005	Amicus curiae brief filed

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