…but some animals are more equal than others

In the realm of administrative appeals, strange things sometimes happen. Illustrative of one that has always struck me as strange is the recent (unpublished) opinion in Shear Dev. Co. v. California Coastal Commn. (2024) no. B319895. I will leave it to others to parse the substantive merits in this appeal involving the grant and then revocation of a permit to build three houses in the coastal zone.

What struck me about the procedure was the Court of Appeal’s nonchalant note that, after the county had granted a coastal development permit, “[t]he [Coastal] Commission appealed that decision to itself and denied the permit” (emphasis added). Perhaps it has just been my overexposure to high-handed government actions, but something seems wrong about an administrative agency—having decided that it didn’t like a decision by a [subordinate] agency—simply “appealing” the decision to itself and then hearing its own appeal and reversing the offending decision.

This is something that is not an everyday occurrence, and not all reviewing courts simply recite the procedure without comment, as this one did. One interesting example (more so, as it came from the same division of the Court of Appeal) occurred in Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547. After 15 years of trying, the property owners finally obtained permission from the city planning commission to develop their 47 acres into residential units. It was subject to 500 (not a typo, five hundred) conditions but, nonetheless, the stamp on the application said “approved.” Under the city’s ordinances, that decision was final unless someone appealed it to the city council.

No one appealed. But a number of citizens complained ex parte to city council members about the project and its impacts—so the city council appealed the permit to itself and then purported to hold a hearing on its own appeal after which it agreed (as judge) with its position (as appellant). Although the trial court approved (you should read the opinion to see the machinations by which the trial court justified approval), the Court of Appeal reversed.

“The problem which respondents refuse to accept is that the Council acted in an arbitrary and high-handed manner. The Council ignored procedural due process and claims ‘no harm, no foul’ because there was a hearing…. We agree that a trier of fact does not have to be completely indifferent to the general subject matter of the claim presented to be impartial. Nonetheless, a fair trial in a fair tribunal is a basic requirement of due process. A biased decisionmaker is constitutionally unacceptable. The right to a fair procedure includes the right to impartial adjudicators.”

A more recent decision also berated government officials for use of their personal feelings in deciding matters before them. In Woody’s Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, a restaurant owner sought to overturn the city council’s reversal of a planning commission decision in his favor. The court of appeal held that the city council “violated at least two basic principles of fairness” in its action: first, the precept that “you cannot be a judge in your own case” and second that “you cannot change the rules in the middle of the game.” We will stick with the first for this discussion.

One of the councilmembers had previously announced his “strong opposition” to the project, and then he took advantage of a quirk in city law that allowed him to appeal the planning commission’s decision to the very body on which he sat. When the matter came before the city council, the “appellant” councilmember delivered a long speech that he conceded had been written out before the hearing, belying (as the court of appeal later noted) his claim that he had no bias. His preconceptions presented an unacceptable level of bias, and he should not have participated.

Recently, the United States Supreme Court expressed similar thoughts. In reviewing a New York statute that allowed tenants to claim deferral of rent payment because of the COVID-19 crisis—based solely on an affidavit filed by the tenant making such a claim—the Court responded simply, but sharply, “[t]his scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case,’ consistent with the Due Process Clause.” Chrysafis v. Marks (2021) 141 S.Ct. 2482. The tenant’s own self-serving statement could not be the end of the matter.

Which brings us back to Shear and the Coastal Commission. In contrast to ordinary public agencies (like the ones discussed above), the Coastal Commission has been endowed by the Legislature with the power to appeal matters to itself and then sit as the judge to rule on the matters it had appealed. See Pub. Res. Code § 30625.

That leads to a one-word question that has multiple aspects: Why? Why would the Legislature grant this particular agency the extraordinary power to appeal decisions to itself? If no interested party feels sufficiently aggrieved to appeal, shouldn’t that be the end of the matter? Why single out the Coastal Commission for the gift of such remarkable power?

The way the Coastal Act works is that local government drafts plans that are reviewed (and eventually approved) by the Commission. Until such approval, the Commission is in charge of issuing permits. But that changes once the Commission approves the local plans. At that point, the Commission’s role becomes purely appellate. More than that, though, it was given the ability to be both the appellant and the appellate judicial panel. Why give it this extra power? Why, indeed. You might want to ask your legislator.

My other question is, why do courts like this appellate panel simply accept the Commission’s actions without question? Shouldn’t the reviewing appellate court at least ask what business the Commission had when it appealed a decision that no one complained about? I was not under the impression that courts had so much free time that they welcomed cases in which there was no real complainant. This seems particularly so in light of the strong rejections of such actions by other agencies discussed earlier.

Hold it, I can sense what some observers of the administrative process say. Those earlier cases dealt with appeals inside a municipal system, with the city council having ultimate control over its subordinate entities. Exactly so. And the need for a city council to have ultimate control over matters involving the actions of city processes seems apparent. True, but even in that situation biased decision-making is forbidden. A biased decision-maker deprives the regulated party of due process.

The California Coastal Commission has reportedly carried the concept even further. Not only are members of the Commission entitled to appeal matters to themselves, but it may actually be only staff members (rather than the commissioners themselves) taking the appeals. It has been shown that the Commission has a “longstanding” practice of having the Commissioners sign blank appeal forms that the staff fills out on their behalf in order to “save the need to travel” to the Commissioners’ homes to have the forms timely filled out. See generally, Ronald A. Zumbrun, “California Coastal Commission’s Preapproved Appeals: Convenience or Constitutional Concern?” The [Sacramento] Daily recorder (Oct. 8, 2007). See also California Senate Committee on Natural Resources and Water, staff report on SB 1295, p. 2 (“according to data obtained from the CCC, that practice is long-standing.”)

Even when it is the Commissioners themselves (rather than staff) who take the appeals, it just seems strange to me. Assuming the propriety of a city council maintaining control over its subordinate agencies (albeit limited by due process in the manner that can be done), why should an outside agency be able to reach down and pluck selected proceedings to review on its own, even when those proceedings have followed the course outlined in their own charters (which the Coastal Commission approved)? If no interested party complains, why should this outsider entity be empowered to do so? Why, indeed.