The California Coastal Commission: Judging Its Own Cases

I didn’t realize this about the California Coastal Commission:

Under the Coastal Act, any two members of the commission can appeal a local government’s action to the commission. After creating a controversy where there wasn’t one, those same commissioners are able to vote on how the appeal should be decided.

In effect, the Commission is a body that both investigates and adjudicates its own cases.  Not only is the investigation and adjudication determined by the same people, those people are neither elected by nor accountable to Californians. 

The Supreme Court decision that authorizes this structure, Withrow v. Larkin, 421 U.S. 35 (1975), holds that “the combination of investigative and adjudicative functions” is entitled to under the Constitution to “presumption of honesty and integrity.”  This rule is difficult to square with other Supreme Court authority concerning “the basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.”  Arkansas v. Sanders, 442 U.S. 753, 759 (1979).  It is especially difficult to square with Federalist no. 51:

To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. . . .

. . . .

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.

The structural division of governmental power is undermined by a rule that permits centralized power in an unelected body that is subject only to proof of “actual bias or prejudgment.”  Withrow at 47.  It violates the original compact of the people, described in Federalist no. 51, who consented to surrender power to a government on the condition that such power would be “subdivided among distinct and separate departments.” 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Tim: That is why they call it a ‘quasi-judicial’ state agency. That is why, when the citizens of California approved the Coastal Act in 1972, they created an agency not solely dominated by the Executive branch, one that included appointed representatives from the State Assembly, the Senate, and the Governor. Maybe that is the formula that makes the Coastal Commission the most independent and effective state agency in California today. And nothing is ‘surrendered’ by way of rights either, constitutional or otherwise. Any decision of the CCC, no matter how big or small, is subject to judicial review. Nothing to hide here Tim. No conspiracies to fret over.

  2. Keep Teachers, Police and Fireman – Eradicate the Coastal Commission

    The Coastal Act was never intended to destroy local governmental authority nor was it intended to remain once local coastal plans were certified. Yet, Peter Douglas has been able to appoint himself Czar of the CCC, and is also now looking to wrestle more power and even additional revenue even as we lay off teachers, fireman, policeman and librarians.

    “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.” Attributed to Historian and Moralist, John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902).

    Let’s protect our coast by allowing our local government who we elect, who understands our communities, and with whom we can actually communicate make land use decisions. That’s what the voters of California wanted and what they voted for…

    California cannot afford another layer of bureaucracy especially one that has proved to be so corrupt that it’s non-elected officials have spent time in jail, at taxpayers expense, for extortion.

    Let’s keep our teachers, police and fireman and completely eliminate all redundant governmental agencies with the Coastal Commission being the first to go.

  3. SINS OF COMMISSION pierces the veil of secrecy surrounding the California Coastal Commission and shows why people should be very afraid…even if they don’t live in the California Coastal Zone.

  4. Tim, this has been an issue that has bugged me quite a lot. The Coastal Commission has always been the most prominent among them, but California’s government is rotten with quasi-judicial agencies that regulate, investigate and adjudicate. The only real check on their power is their budgets.

    I had a manufacturing client who ran afoul of the Bureau of Home Furnishings and Thermal Insulation (BHFTI). These are, quite literally, the mattress cops. They made the rule about how much disinfectant had to be used in refurbishing mattresses. Then they policed my client to gather evidence that they were using insufficient disinfectant. Then they adjudicated the case and forbade my client from ever selling a mattress in the State of California again. James Madison would have been, well, upset.

    I wound up getting a little bit more more work out of that client after we lost the administrative hearing — relocating the business to a new facility in Las Vegas. I presume that once up and running in that libertarian Xanadu we call “Nevada,” they resumed doing exactly what they had been doing before in California.

    The result of several months’ worth of administrative proceedings was fifty more-than-double-minimum wage manufacturing jobs in a mostly-Latino area of Los Angeles were lost, the tax base was diminished and the strain on the unemployment system was increased. Low-income consumers had their options restricted, and the company in question didn’t change anything it was doing, and they probably wound up with a higher profit margin. I left the entire episode bewildered as to how, exactly, California’s consumers had been protected.

    • Burt & Tim: In the UK, it’s quangos, “variously spelt out as quasi non-governmental organisation, quasi-autonomous non-governmental organisation, and quasi-autonomous national government organisation.” according to the Wiki.

      This is the future, and we are screwed…

    • And I’m sure the prospects of incurring the further expense of an appeal did not make sense given the improbability of overturning an agency decision. Something has to give with agencies. There is no meaningful political or judicial check on their powers.

  5. The Coastal Comission is doing a horrific job. California has way too many public beaches, and not half enough coast-side private golf courses and luxury resorts.

  6. Jim,

    Each incoming Commissioner signs blank appeal forms. Commission Staff decides when an appeal is “necessary” and pulls out forms for their purposes. The Commissioners are often not aware that they are filing an appeal until after the fact.

    • August,

      That’s alarming: Not only are the commissioners unaccountable to the electorate, by engaging in this blank-appeal-signing scheme, they purport to be unaccountable even to the elected officials who appoint them. Whether this ruse assuages their consciences, it is not a valid excuse for a principal to claim “staff did it,” particularly when the principals hand out these blank checks to staff.

      • And don’t buy into 4Oceans “nothing to see here” nonsense. The abuses of the Commission are widely documented.

        The Commission, while doing its very real job of protecting real resources, is also very effective at denying many people the right to use their property, usually for political reasons.

        The checks and balances really are not there, as 4Oceans would like you to believe. The 9th Circuit, the most overturned court in the land, is usually working in conjunction with the Commission.

Comments are closed.