Douglas says he can't speak for commission members, but says he considers an appeal very likely. He says that if the decision is not successfully appealed, the San Francisco-based commission could ask a court, the Legislature or even the state's voters to change the conditions of appointing commission members so that the system is constitutional.
"It is a stunning ruling,'' Douglas says. "The commission has operated for 30 years with this structure. To have it struck down is kind of a surprise. Nonetheless, there is a solution.
"I think the public wants the coast protected,'' Douglas adds.
The executive director says that unless there is an appeal or a change in the commission structure, today's ruling will create "a chaotic situation.''
The commission would still exist, but it wouldn't be able to carry out most of its functions, including granting or denying permits for development along California's 1,100-mile coast, Douglas says.
In the ruling, a three-judge Court of Appeal panel says the commission's appointment structure is unconstitutional because the Legislature appoints a majority of the commission members and can remove them at will.
Since the commission is an executive agency, that violates the separation of powers doctrine of the California constitution, the court says.
The court also says an injunction issued by a Sacramento Superior Court judge last year could go into effect. The order bars the commission from granting or denying future permits or issuing cease-and-desist orders against illegal coastal developments.
A stay will continue for at least 30 days while the commission decides whether to appeal, and Douglas says the commission will ask for a further stay if it does file an appeal.
The decision was issued as a result of a lawsuit filed by the Marine Forests Society, which built an experimental artificial reef out of used tires and other materials off Newport Harbor on the Orange County coast.
After the commission issued a cease and desist order, the group filed a lawsuit claiming the commission's activities were illegal because they violated the separation of powers doctrine.
The group's lawyer, Ronald Zumbrun, says, "It's a huge ruling, a real home run out of the park. It is right now the leading separation of powers decision in the history of the state.''
Zumbrun says he believes that if the ruling stands, thecommission's functions would still be carried out, but by other agencies.
The commission was established by a voter initiative in 1972 and was made permanent by a law passed by the Legislature in 1976. Its 12 voting members include four chosen by the state Senate Rule Committee, four selected by the speaker of the Assembly and four named by the governor.
"For nearly 30 years, the Coastal Commission has worked to fairly and even-handedly protect the public trust by ensuring responsible stewardship of our 1,100-mile coastline," says California Attorney General Bill Lockyer. "No matter the outcome of this litigation, we cannot afford to abandon the responsibility to protect California today and for future generations.''
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