June 24, 2011

The structural unfairness of the Coastal Commission

By The structural unfairness of the Coastal Commission

Author: Jonathan Wood

The abuses suffered by property owners at the hands of the California Coastal Commission have been well documented.  Not only does the Commission abuse the rights of property owners, but the procedure by which the Commission asserts jurisdiction is strikingly unfair and presents a serious risk of biased decision making.

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.

Challenges to this unfair assertion of power are burdened by the reluctance of the courts to expose agency determinations to any serious scrutiny. The courts have created a "presumption of honesty and integrity in those serving as adjudicators" which must be rebutted "under a realistic appraisal of psychological tendencies and human weakness." Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). As you would imagine, courts have sparingly appraised government agents’ psychological tendencies or human weaknesses. 

Considering how serious we take even the appearance of unfairness, it is difficult to understand why commissioners can be tolerated to judge controversies which they have created. Could you imagine the fallout if, unsatisfied that a law was not being challenged, a Supreme Court Justice sued and then refused to recuse herself in the case? It takes far less to rouse our concerns that a judge is biased or unfair. We should be just as skeptical of the myriad boards and commissions that serve a judicial role in the administrative state.

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