Petition for Writ of Certiorari — Warren M. Lent, et al., Petitioners v. California Coastal Commission, et al.

No. ___________

In The

Supreme Court of the United States

____________________

WARREN M. LENT, et al.,

Petitioners,

v.

CALIFORNIA COASTAL COMMISSION, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the California Court of Appeal,

Second Appellate District

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

PAUL J. BEARD II

DAMIEN M. SCHIFF*

FisherBroyles LLP

*Counsel of Record

4470 W. Sunset Blvd.,

JOSHUA P. THOMPSON

Suite 93165

JEREMY TALCOTT

Los Angeles, CA 90027

Pacific Legal Foundation

Telephone: (818) 216-3988

555 Capitol Mall, Suite 1290

paul.beard@fisherbroyles.com Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

JThompson@pacificlegal.org

JTalcott@pacificlegal.org

Counsel for Petitioners

i

QUESTIONS PRESENTED

In 2002, Petitioners Warren and Henny Lent

bought a beachfront home in Malibu, California.

Along the house’s east side, prior owners had long ago

installed a gate, an exterior stairway, and similar

residential accessories. Several years after their

purchase, the Lents received a notice of violation from

the staff of the California Coastal Commission

contending that the Lents had violated the California

Coastal Act by not removing these side-alley

structures. Ultimately, Commission staff followed up

on that notice by initiating an administrative penalty

order proceeding against the Lents, seeking a fine of

$950,000. At the December 2016, penalty hearing, the

Lents and their attorney were allowed to speak and to

present evidence. But they were afforded no right to

subpoena witnesses or documentary evidence, no

right to notice of those who would testify against them

at the hearing, no right to demand testimony under

oath, no right to confront or cross-examine witnesses,

no right to exclude hearsay or speculative evidence,

and no right to present rebuttal testimony or evidence.

At the hearing’s conclusion, the Commission approved

a penalty of $4.185 million against the Lents. One

Commissioner explained that more than quadrupling

the staff recommendation was necessary because “we

don’t want to be in a position . . . rewarding . . .

applicants that have been fighting us.”

The questions presented are:

1. Can a state administrative agency, consistent

with the Due Process Clause of the Fourteenth

Amendment, permanently deprive a person of

millions of dollars in fines using a summary hearing

ii

process that dispenses with the heightened procedural

safeguards traditionally afforded those who face a

significant deprivation of property?

2. Is a $4.185 million fine, assessed to punish

homeowners for failing immediately to remove

ordinary residential accessories located within an

undeveloped

public

beach-access

easement,

unconstitutional under the Excessive Fines Clause of

the Eighth Amendment, as incorporated against the

states by the Fourteenth Amendment?

iii

LIST OF ALL PARTIES

The Petitioners are Warren and Henny Lent, as

individuals and as trustees of the Lent Family Living

Trust dated May 22, 1995.

The Respondents are the California Coastal

Commission, the California Coastal Conservancy, and

the Mountains Recreation and Conservation

Authority, the latter two entities as real parties in

interest.

STATEMENT OF RELATED CASES

The proceedings identified below are directly

related to the above-captioned case in this Court.

•

Lent v. Cal. Coastal Comm’n, No. BS167531,

Los Angeles County Superior Court, filed

May 24, 2018

•

Lent v. Cal. Coastal Comm’n, No. B292091, 62

Cal. App. 5th 812 (Cal. Ct. App. 2d. Dist. Apr. 5,

2021), as modified on denial of rehearing,

Apr. 16, 2021

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

LIST OF ALL PARTIES ............................................ iii

STATEMENT OF RELATED CASES ...................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS AT ISSUE ................ 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE.................................... 6

REASONS FOR GRANTING THE PETITION ....... 16

I.

Certiorari Should Be Granted To

Resolve the Many Conflicts Created

by the Decision Below as to the

Procedural Safeguards Required

To Protect the “Personal Interest”

of the Accused ................................................. 16

v

II.

Certiorari Should Be Granted To

Resolve the Many Conflicts Created

by the Decision Below as to the

Required Procedural Protections

For Those Who Face a Devastating

Deprivation ..................................................... 21

III. Review Is Needed To Provide the

Lower Courts with Guidance as to

How To Evaluate Whether a Fine Is

“Grossly Disproportional” Under

the Excessive Fines Clause............................ 26

IV. Whether an Agency May, Contrary

to Typical Administrative Practice,

Levy Multi-Million-Dollar Fines

Using Only Summary Procedure,

Is an Important Issue Worthy of

This Court’s Review ....................................... 33

CONCLUSION.......................................................... 36

APPENDIX

Opinion, Court of Appeal of the State of

California, Second Appellate District,

filed Apr. 5, 2021 ............................................. A-1

Decision on Petition for Writ of Mandate,

Los Angeles County Superior Court,

filed May 24, 2018 ........................................... B-1

vi

Cease and Desist Order CCC-16-CD-03 and

Administrative Civil Penalty CCC-16-AP-01

(Lent), California Coastal Commission,

dated Dec. 8, 2016 ........................................... C-1

Order Modifying Opinion and Denying

Rehearing [No Change in Appellate

Judgment], Court of Appeal of the State

of California, Second Appellate District,

filed Apr. 6, 2021 ............................................. D-1

Order denying petition for review,

Supreme Court of California,

filed July 21, 2021 ........................................... E-1

U.S. Const. amend. VIII ........................................ F-1

U.S. Const. amend. XIV, § 1 .................................. G-1

Cal. Pub. Res. Code § 30810 .................................. H-1

Cal. Pub. Res. Code § 30811 .................................. I-1

Cal. Pub. Res. Code § 30812 .................................. J-1

Cal. Pub. Res. Code § 30820 .................................. K-1

Cal. Pub. Res. Code § 30821 .................................. L-1

Cal. Code Regs. tit. 14, § 13181 ............................. M-1

Cal. Code Regs. tit. 14, § 13183 ............................. N-1

Cal. Code Regs. tit. 14, § 13185 ............................. O-1

Photos of easement ................................................. P-1

vii

TABLE OF AUTHORITIES

Cases

11 Lagunita, LLC v. Cal. Coastal Comm’n,

273 Cal. Rptr. 3d 158 (Ct. App. 2020)................. 3

Armstrong v. Manzo,

380 U.S. 545 (1965) ........................................... 16

Arnett v. Kennedy,

416 U.S. 134 (1974) ........................................... 20

Austin v. United States,

509 U.S. 602 (1993) ..................................... 26, 33

Barros v. Barros,

72 A.3d 367 (Conn. 2013) .................................. 26

Barry v. Barchi,

443 U.S. 55 (1979) ............................................. 16

Bd. of Curators v. Horowitz,

435 U.S. 78 (1978) ............................................. 25

Bliek v. Palmer,

102 F.3d 1472 (8th Cir. 1997) ........................... 18

Bowman v. Cal. Coastal Comm’n,

179 Cal. Rptr. 3d 299 (Ct. App. 2014)............... 34

Brock v. Roadway Exp., Inc.,

481 U.S. 252 (1987) ........................................... 20

Business Comms., Inc. v. U.S. Dep’t of Educ.,

739 F.3d 374 (8th Cir. 2013) ............................. 22

viii

C.S. v. People,

83 P.3d 627 (Colo. 2004) .................................... 19

Cal. Coastal Comm’n v. Superior Court (Ham),

258 Cal. Rptr. 567 (Ct. App. 1989)...................... 7

California v. Green,

399 U.S. 149 (1970) ........................................... 21

Carr v. Iowa Employment Sec. Comm’n,

256 N.W.2d 211 (Iowa 1977) ............................. 22

Ching v. Mayorkas,

725 F.3d 1149 (9th Cir. 2013) ........................... 22

City of Bellevue v. Lee,

210 P.3d 1011 (Wash. 2009) .............................. 19

City of Pasadena v. Cal.-Mich. Land & Water Co.,

110 P.2d 983 (Cal. 1941) ..................................... 9

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ........................................... 16

Connecticut v. Doehr,

501 U.S. 1 (1991) ............................................... 24

County of Nassau v. Canavan,

802 N.E. 2d 616 (N.Y. 2003).............................. 29

Davis v. Mann,

882 F.2d 967 (5th Cir. 1989) ............................. 25

Davis v. Page,

714 F.2d 512 (5th Cir. 1983) ............................. 18

ix

Dean v. W. Virginia,

736 S.E.2d 40 (W. Va. 2012).............................. 29

Dixon v. Love,

431 U.S. 105 (1977) ..................................... 20, 24

Doughty v. Director of Revenue,

387 S.W.3d 383 (Mo. 2013)................................ 22

Giaimo v. City of New Haven,

778 A.2d 33 (Conn. 2001) .................................. 19

Goldberg v. Kelly,

397 U.S. 254 (1970) ......................... 16–17, 22–24

Goss v. Lopez,

419 U.S. 565 (1975) ........................................... 24

Greene v. McElroy,

360 U.S. 474 (1959) ........................................... 24

Greenholtz v. Inmates,

442 U.S. 1 (1979) ............................................... 25

Hannah v. Larche,

363 U.S. 420 (1960) ........................................... 23

In re Sanders,

852 N.W.2d 524 (Mich. 2014) ............................ 19

J.E.D. Assocs., Inc. v. Atkinson,

432 A.2d 12, 14 (N.H. 1981) .............................. 34

Lambert v. People of the State of California,

355 U.S. 225 (1957) ........................................... 31

x

Maher v. Retirement Bd. of Quincy,

895 N.E.2d 1284 (Mass. 2008) .......................... 30

Marlboro Corp. v. Ass’n of Indep.

Colls. & Schs., Inc.,

556 F.2d 78 (1st Cir. 1977) .......................... 25–26

Mathews v. Eldridge,

424 U.S. 319 (1976) ..................... 4, 16–18, 20, 24

Matter of Polk,

449 A.2d 7 (N.J. 1982) ....................................... 19

McNeill v. Butz,

480 F.2d 314 (4th Cir. 1973) ............................. 22

Mitchell v. W.T. Grant Co.,

416 U.S. 600 (1974) ........................................... 24

Newell Recycling Co., Inc. v. EPA,

231 F.3d 204 (5th Cir. 2000) ............................. 30

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825 (1987) ....................................... 7, 34

Ocean Harbor House Homeowners Ass’n v.

Cal. Coastal Comm’n,

77 Cal. Rptr. 3d 432 (Ct. App. 2008)................. 21

One 1995 Toyota Pick-Up Truck v.

District of Columbia,

718 A.2d 558 (D.C. 1998)................................... 29

Parham v. J. R.,

442 U.S. 584 (1979) ........................................... 25

xi

Pub. Employees Retirement Admin. Comm’n

v. Bettencourt,

47 N.E. 3d 667 (Mass. 2016) ....................... 28–29

Santosky v. Kramer,

455 U.S. 745 (1982) ........................................... 18

Smith v. Miller,

514 P.2d 377 (Kan. 1973) .................................. 22

Soc’y for Savs. v. Chestnut Estates, Inc.,

409 A.2d 1020 (Conn. 1979) .............................. 22

State v. Izzolena,

609 N.W.2d 541 (Iowa 2000) ............................. 30

State v. Real Property at 633 East

640 North, Orem, Utah,

994 P.2d 1254 (Utah 2000) ................................ 29

Timbs v. Indiana,

139 S. Ct. 682 (2019) ......................................... 26

Tyree v. Evans,

728 A.2d 101 (D.C. 1999)................................... 22

United States v. 3814 NW Thurman Street,

Portland, Or., A Tract of Real Property,

164 F.3d 1191 (9th Cir. 1999) ........................... 28

United States v. Abair,

746 F.3d 260 (7th Cir. 2014) ............................. 28

United States v. Bajakajian,

524 U.S. 321 (1998) ........................... 5, 26–29, 31

xii

United States v. Bennett,

986 F.3d 389 (4th Cir. 2021) ............................. 30

United States v. Bikundi,

926 F.3d 761 (D.C. Cir. 2019) ........................... 30

United States v. Silvestre-Gregorio,

983 F.3d 848 (6th Cir. 2020) ............................. 18

von Hofe v. United States,

492 F.3d 175 (2d Cir. 2007) ......................... 28, 31

Wake County, ex rel. Carrington v. Townes,

293 S.E.2d 95 (N.C. 1982) ................................. 19

Wilson v. Comm’r of Rev.,

656 N.W.2d 547 (Minn. 2003) ........................... 31

Wolff v. McDonnell,

418 U.S. 539 (1974) ........................................... 24

Statutes

5 U.S.C. § 554 .......................................................... 35

5 U.S.C. § 556(c) ...................................................... 35

5 U.S.C. § 556(d) ..................................................... 35

15 U.S.C. § 2615(a)(2) ............................................. 35

16 U.S.C. § 1540(a)(2) ............................................. 35

16 U.S.C. § 1855(a) ................................................. 35

28 U.S.C. § 1257(a) ................................................... 1

33 U.S.C. § 1319(g) ................................................. 35

xiii

42 U.S.C. § 7413(d)(2) ............................................. 35

42 U.S.C. § 9609(b)(5) ............................................. 35

Cal. Code Civ. Proc. § 1094.5.................................... 3

Cal. Pub. Res. Code §§ 30000–30900 ....................... 2

Cal. Pub. Res. Code § 30103 ..................................... 8

Cal. Pub. Res. Code § 30106 ..................................... 8

Cal. Pub. Res. Code § 30600 ..................................... 8

Cal. Pub. Res. Code § 30801 ..................................... 3

Cal. Pub. Res. Code § 30810 ................................... 11

Cal. Pub. Res. Code § 30820(c)(1) ........................... 24

Cal. Pub. Res. Code § 30820(c)(3) ........................... 24

Cal. Pub. Res. Code § 30820(c)(5) ........................... 24

Cal. Pub. Res. Code § 30821 ..................................... 2

Cal. Pub. Res. Code § 30821(a)..................... 2, 10–11

Cal. Pub. Res. Code § 30821(b)........................... 2, 11

Cal. Pub. Res. Code § 30821(e) ................................. 3

Cal. Pub. Res. Code § 30821(h) .............................. 11

Cal. Pub. Res. Code § 30821(j)................................ 11

Cal. Pub. Res. Code § 30821.3(a)............................ 34

xiv

Cal. Pub. Res. Code § 30822 ..................................... 3

Cal. Stats. 1976 c. 1330, § 1.................................... 10

Cal. Stats. 1991 c. 761, § 4...................................... 10

Cal. Stats. 2014, c. 35, § 147..................................... 2

Regulations

Cal. Code Regs. tit. 14, § 13065 .......................... 3, 12

Cal. Code Regs. tit. 14, §§ 13181–13185 ............ 2, 11

Cal. Code Regs. tit. 14, § 13185(a) ................... 11–12

Cal. Code Regs. tit. 14, § 13185(d) ......................... 12

Cal. Code Regs. tit. 14, § 13185(e).......................... 12

Cal. Code Regs. tit. 14, § 13186 .......................... 3, 12

Other Authorities

Breemer, J. David,

What Property Rights: The California

Coastal Commission’s History of Abusing

Land Rights and Some Thoughts on

the Underlying Causes,

22 UCLA J. Envtl. L. & Pol’y 247 (2004) .......... 34

Cal. Coastal Comm’n, Coastal Access Program,

https://www.coastal.ca.gov/access/accessguid

e.html (last visited Oct. 6, 2021) ....................... 30

Cal. Coastal Comm’n,

Meetings: Rules & Procedures (2019)............... 11

xv

Cal. Coastal Comm’n, Our Mission,

https://bit.ly/3xFlqXb

(last visited Oct. 6, 2021) .................................... 8

Cal. Coastal Comm’n, Report to California

Legislature on Implementation of Coastal

Commission Administrative Penalty

Authority From 2015-2018 (2019) ..................... 33

Consent Cease & Desist Order No. CCC-18CD-03, Consent Restoration Order CCC18-RO-02 (Aug. 29, 2018), available at

https://bit.ly/3Fqltez .......................................... 34

Harawa, Daniel S., How Much Is Too Much?

A Test to Protect Against Excessive Fines,

81 Ohio St. L.J. 65 (2020).................................... 6

Hottot, Wesley, What is an Excessive Fine?

Seven Questions to Ask After Timbs,

72 Ala. L. Rev. 581 (2021) ................................ 32

McLean, Nicholas M., Livelihood, Ability

to Pay, and the Original Meaning of

the Excessive Fines Clause,

40 Hastings Const. L.Q. 833 (2013) .................. 32

Resp. Request for Judicial Notice,

Lent v. Cal. Coastal Comm’n,

Case No. B292091

(Cal. Ct. App. 2d Dist. filed Sept. 3, 2019) ......... 7

Restatement (Third) of Torts: Phys. &

Emot. Harm § 37 (Am. L. Inst. 2012) ............... 31

xvi

S.B. 433 (Allen), 2021-2022 Reg. Sess.

(Cal. 2021), effective Jan. 1, 2022 ...................... 34

Solomon, Matthew C., Note, The Perils

of Minimalism: United States v.

Bajakajian in the Wake of the Supreme

Court’s Civil Double Jeopardy Excursion,

87 Geo. L.J. 849 (1999) ........................................ 6

Zasloff, Jonathan, Taking Politics Seriously:

A Theory of California’s Separation of

Powers, 51 UCLA L. Rev. 1079 (2004) .............. 33

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Warren and Henny Lent respectfully

petition for a writ of certiorari to review the judgment

of the California Court of Appeal, Second Appellate

District.1

OPINIONS BELOW

The opinion of the California Court of Appeal is

published at 62 Cal. App. 5th 812 and is reproduced

in the Appendix beginning at A-1. The opinion of the

Superior Court for the County of Los Angeles is not

published but is reproduced in the Appendix

beginning at B-1.

JURISDICTION

The opinion and judgment of the California Court

of Appeal, as modified on denial of rehearing, became

final on May 5, 2021. The California Supreme Court

denied Petitioners’ timely petition for review on

July 21, 2021. App. E-1. Jurisdiction is conferred

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS AT ISSUE

The pertinent text of the following constitutional,

statutory, and regulatory provisions involved in this

case is set out in the Appendix.

•

U.S. Const. amend. VIII

1 The Lents petition individually and as trustees of the Lent

Family Living Trust dated May 22, 1995.

2

•

U.S. Const. amend. XIV, § 1.

•

Cal. Pub. Resources Code §§ 30810, 30811,

30812, 30820, 30821

•

Cal. Code Regs. tit. 14, §§ 13181, 13183, 13185

INTRODUCTION

In 2014, the California Legislature amended the

state’s Coastal Act, Cal. Pub. Res. Code §§ 30000–

30900, to give Respondent California Coastal

Commission the power to issue administrative

penalty orders to punish violations of the Act’s “public

access provisions.” Cal. Stats. 2014, c. 35, § 147

(enacting new Cal. Pub. Res. Code § 30821). The

defendant in such a penalty order proceeding is

subject to a fine of up to $11,250 per day per violation,

going back up to five years. See Cal. Pub. Res. Code

§ 30821(a). Although given notice of the proceeding

and an opportunity to present evidence at a public

hearing, see id. § 30821(b); Cal. Code Regs. tit. 14,

§§ 13181–13185, the accused—like Petitioners the

Lents—are bereft of any other procedural safeguard:

•

no notice of those who may testify at the

hearing

•

no right to subpoena

•

no right to cross-examine witnesses

•

no right to demand that testimony be under

oath

3

•

no right to exclude hearsay or speculative

evidence

•

no right to present rebuttal

See App. A-35, A-37 to A-38.

At the conclusion of this summary proceeding, any

penalty order issued by the Commission is

immediately effective. See App. C-12 (Comm’n penalty

order). The consequences of nonpayment are severe:

in addition to triggering further penalties, see Cal.

Pub. Res. Code § 30822, the failure to pay allows the

Commission to “record a lien on the property in the

amount of the penalty [and this] lien shall have the

force, effect, and priority of a judgment lien,” id.

§ 30821(e). The recipient of the penalty order may

seek judicial review, but such review is limited to a

closed administrative record and subject to the

agency-friendly legal standards of California writ of

mandate practice. See id. § 30801 (authorizing review

through Cal. Code Civ. Proc. § 1094.5). For example,

not only are the Commission’s factual findings

presumed to be supported by the record, 11 Lagunita,

LLC v. Cal. Coastal Comm’n, 273 Cal. Rptr. 3d 158,

167 (Ct. App. 2020), but those findings can be

validated by mere hearsay, see Cal. Code Regs. tit. 14,

§§ 13186, 13065 (authorizing admission of evidence

despite “any common law or statutory rule which

might make improper the admission of such

evidence”).

This penalty power is unprecedented. The

California court of appeal below could identify no

other administrative agency in the nation that has the

ability to issue crushing financial penalties while

4

guaranteeing the defendant only the barest of

procedure safeguards. Despite this lack of precedent,

the court of appeal upheld the summary process of the

Coastal Act’s administrative penalty proceeding, as

well as its application against the Lents culminating

in a nearly $4.2 million penalty. Looking to the factors

used by this Court for determining the adequacy of

pre-deprivation administrative procedure, Mathews v.

Eldridge, 424 U.S. 319, 335 (1976), the court of appeal

concluded that (i) the interest of the accused in a

Coastal Act penalty order hearing is not particularly

weighty because the Commission is not compelled to

assess any fine, App. A-36 to A-37, and (ii) heightened

procedural protections like the right to cross-examine

are not needed because the issues in dispute in a

penalty order proceeding typically will turn on

documentary evidence or evaluative considerations,

App. A-39 to A-40.

In affording minimal weight to the Mathews

“personal interest” factor for penalty order

defendants, the court of appeal parted company with

this Court and other lower courts by assessing the predeprivation process of a Coastal Act penalty order

hearing according to the best outcome for the accused,

rather than the worst or even just the most probable.

See infra Part I. The court of appeal also ignored the

presumption, long recognized by this Court and other

lower courts, that heightened procedural protections

like cross-examination are always necessary when the

accused faces a serious deprivation—even in

proceedings where documentary evidence or

evaluative considerations may at times play a role.

See infra Part II. Resolution of the conflicts created by

the decision as to how the constitutional fairness of

5

administrative penalty procedure should be assessed

under Mathews is urgently needed. See infra Part IV.

Besides these review-worthy issues of due

process, the petition should be granted to address the

important question of whether a multi-million-dollar

penalty, levied for the alleged offense of impeding the

development of a beach accessway, is unconstitutional

under the Excessive Fines Clause of the Eighth

Amendment, as incorporated against the States. In

concluding that the Lents’ $4.185 million fine was not

unconstitutionally excessive, the court of appeal below

correctly cited the “grossly disproportional” standard

that this Court has used to determine whether a fine

is permissible. App. A-57 to A-58 (citing United States

v. Bajakajian, 524 U.S. 321 (1998)). But in upholding

the constitutionality of the Lents’ seven-figure fine,

the court of appeal diverged from this Court’s ruling

in Bajakajian by failing to assess the Lents’ alleged

wrongdoing and resulting harm in a comparative

context. The court of appeal gave the Lents no credit

for the fact that their alleged wrongdoing—failing

affirmatively to facilitate the development of a public

beach-access easement—bears none of the hallmarks

traditionally associated with conduct meriting steep

punitive fines. For example, the Lents were not found

guilty of any wrongful affirmative act, much less any

wrongful act that threatened the public health or

safety. By refusing to assess the Lents’ alleged

wrongdoing in a comparative context, the court of

appeal split with a number of federal circuit courts, as

well as the high courts of other state jurisdictions,

which have emphasized the importance of such a

comparative approach when determining the

6

constitutionality of fines under Bajakajian. See infra

Part III.

The need for review of the excessive fines issue is

also strong and urgent. “Fines are the most common

form of punishment levied in the United States.”

Daniel S. Harawa, How Much Is Too Much? A Test to

Protect Against Excessive Fines, 81 Ohio St. L.J. 65, 66

(2020). Yet the Court’s ruling in Bajakajian gave

lower courts “only limited guidance.” Matthew C.

Solomon, Note, The Perils of Minimalism: United

States v. Bajakajian in the Wake of the Supreme

Court’s Civil Double Jeopardy Excursion, 87 Geo. L.J.

849, 884 (1999). As a consequence, the protections of

the Excessive Fines Clause “vary from jurisdiction to

jurisdiction, with each jurisdiction free to apply its

own test so long as it includes the phrase ‘grossly

disproportional.’” Harawa, supra, at 92. Granting the

Lents’ petition will allow the Court to bring

consistency across jurisdictions to excessive fines

jurisprudence and to provide the lower courts a muchneeded “roadmap to check against potential

constitutional abuses.” Id. at 92.

STATEMENT OF THE CASE

In 2002, the Lents bought a three-bedroom home

in Malibu. App. A-3; Administrative Record (AR) 668.

The house sits between the Pacific Ocean and a busy

stretch of the Pacific Coast Highway. AR 2231, 2429.

An alley of sorts exists along the home’s east side.

When the Lents purchased the house, this side-alley

contained a gate, a couple of planters, a mailbox, and

an exterior stairway leading from the home’s second

floor to a wooden landing. See App. A-3. The landing

sat atop a concrete storm drain that is owned by Los

7

Angeles County. To traverse the alley from the

sidewalk to the public beach involves “several steep

elevation drops.” App. A-8. Immediately seaward of

the sidewalk is a sharp six-to-seven-foot drop onto the

storm drain. AR 2331–32, 3355. At the edge of the

storm drain is another precipitous drop of nearly 14

feet to the beach below. See App. P-1 (view of the

easement area looking seaward); App. P-2 (view of the

easement area looking landward)].2

Five years after their purchase, the Lents

received without prior warning a “Notice of Coastal

Act Violation” from Commission staff. AR 703. It

stated that the Commission had, in 1982, obtained

from the home’s original owner a vertical public

easement five feet wide.3 The easement, the notice

elaborated, lies on the home’s east side, beginning at

the sidewalk along the street side of the house and

extending over the County storm drain southward to

By January 2019, the Lents had removed all of the structures

(save the County storm drain) to comply with the Commission’s

cease-and-desist order. See App. A-19 n.3. The day after the

Lents took out the gate, the Respondent Mountains Recreation

and Conservation Authority (the current holder of the vertical

access easement) installed its own gate. A permit application to

develop the easement has been pending with the City of Malibu

since July 2019. See Resp. Request for Judicial Notice, at 3–4,

Case No. B292091 (Cal. Ct. App. 2d Dist. filed Sept. 3, 2019).

2

The Commission’s policy of requiring such easements as a

condition to granting a permit to build was later held to be

unconstitutional. See Nollan v. Cal. Coastal Comm’n, 483 U.S.

825, 838–42 (1987). But shortly after Nollan, the California court

of appeal ruled that easements exacted unconstitutionally before

Nollan remain fully valid under California law. Cal. Coastal

Comm’n v. Superior Court (Ham), 258 Cal. Rptr. 567, 570–74 (Ct.

App. 1989).

3

8

the beach. App. A-8; AR 703. The notice then set forth

the Commission staff’s argument for why the gate and

other structures in the side-alley were illegal under

the Coastal Act.

Pursuant to that statute, the undertaking in the

“coastal zone”4 of most “development”—a broadly

defined term that includes “the placement . . . of any

solid material or structure,” Cal. Pub. Res. Code

§ 30106—requires a coastal development permit. See

id. § 30600. In the Commission staff’s view, the

structures in the Lents’ side-alley were not authorized

under the Coastal Act because, staff claimed, the

Commission had no record of a coastal development

permit having been specifically issued for them, and

because the structures’ presence purportedly violated

the condition of the home’s original coastal

development permit requiring the dedication of a

vertical access easement along the east side of the

house. AR 703–04. See App. A-20 to A-21.

The 2007 notice of violation kicked off a series of

letters, emails, and other communications among

Commission staff, the Lents, and their counsel over

the next nine years. The Lents’ consistent position

throughout this period was that the structures were

legal. Based on their review of the house’s permitting

history and the advice of their counsel, they concluded

that the structures had been approved by the

Commission and its executive director when the final

See generally Cal. Pub. Res. Code § 30103. The coastal zone’s

landward boundaries vary from “several hundred feet in highly

urbanized areas up to five miles in certain rural areas.” Cal.

Coastal Comm’n, Our Mission, https://bit.ly/3xFlqXb (last visited

Oct. 6, 2021).

4

9

permits for the home were issued in the early 1980s.

See App. A-21 to A-22. But aside from any dispute

about Coastal Act permitting compliance, the Lents

were understandably reluctant to surrender to the

Commission staff’s demand for the removal of all of

the structures given that the public access easement

is non-exclusive. AR 559 (rev. Comm’n staff rep.). The

Lents therefore retained the right as servient owners

to use that area so long as they did not impede the

development of a feasible public accessway,5 a proviso

they reasonably believed could not be triggered unless

and until a plan to develop the easement were

approved by the pertinent state and local agencies.6

Nevertheless, the Lents made clear that they

were prepared to remove any structures that proved

to be inconsistent with a feasible plan to develop the

easement. See, e.g., AR 2946–47 (letter from Lents’

counsel to Comm’n staff). To substantiate their good

faith and willingness to cooperate, the Lents provided

a gate-key to the California Coastal Conservancy, the

then-holder of the easement, to facilitate the

accessway’s development. See AR 883 (Lents’

counsel’s letter to Comm’n staff). The Lents also

offered to move the easement to the west side of their

home, an area that was free of structures and, they

See generally City of Pasadena v. Cal.-Mich. Land & Water Co.,

110 P.2d 983, 985 (Cal. 1941) (the “general rule” is that “the

owner of the servient tenement may make any use of the land

that does not interfere unreasonably with the easement.”).

5

Such approval may well never come, given the substantial

design challenges presented. See Appellants’ App. Vol. I, at 265

(Lents’ engineering expert concluding that each of the three

initial proposals to develop the easement is “impractical and

unlikely to be achievable”).

6

10

believed, would present

challenges. See id. at 884.

far

fewer

engineering

Despite the Lents’ efforts at compromise and

conciliation, Commission staff remained firm that

removal of the structures could not be conditioned on

approval of a plan to develop the easement; in other

words, the structures had to go regardless of when (if

ever) development of the accessway were to

commence. See AR 2260 (Comm’n staff letter to Lents’

counsel) (structures’ mere presence “negatively

affects” the ability to finalize a plan for construction).

By September 2016, an impasse had been

reached. Commission staff therefore notified the

Lents of its intent to seek from the Commission a

cease-and-desist order requiring immediate removal

of all structures, as well as something (at the time)

new—an administrative penalty order. AR 2281–88.

See App. A-9.

The Commission has for decades had the power to

issue cease-and-desist orders, see Cal. Stats. 1991

c. 761, § 4, at 3412–13, and to seek penalties through

an action filed in superior court, see Cal. Stats. 1976 c.

1330, § 1, at 6003–04. But it was not until 2014 that

it received from the California Legislature the power

unilaterally to issue penalty orders without first

having to prove in court the underlying violation and

the propriety of the penalty amount. As noted above,

this new section 30821 of the California Public

Resources Code authorizes the Commission to assess

administrative penalties for any violation of the public

access provisions of the Coastal Act. Cal. Pub. Res.

Code § 30821(a). These penalties may be levied on a

daily basis for up to five years, and up to $11,250 per

11

day. Id. The smallest maximum fine that an accused

may face is a hefty $348,750.7 Revenue from the fines

is then placed in a Violation Remediation Account and

expended, according to a memorandum of

understanding between the Commission and Coastal

Conservancy, for Commission projects. See Cal. Pub.

Res. Code § 30821(j); App. A-53 to A-54. The

Commission therefore has a strong financial incentive

to levy maximum fines.

For procedure, the statute directs that the

Commission use the same process that it employs for

cease-and-desist orders and similar land-use matters.

See Cal. Pub. Res. Code § 30821(b). Accordingly, the

accused is given notice of the hearing, a written

summary of the charges against him or her ten days

prior, the right to submit evidence to the record, and

the right to speak to the Commission at a public

hearing following the Commission staff’s initial

presentation. See App. A-37 to A-38; Cal. Pub. Res.

Code § 30810; Cal. Code Regs. tit. 14, §§ 13181–13185.

But the accused is given no notice of those who may

testify at the hearing, see Cal. Coastal Comm’n,

Meetings: Rules & Procedures (2019) (“If you wish to

speak, please fill out a ‘Request to Speak’ form and

give it to a staff person prior to the matter being

heard.”), no right to cross-examine witnesses,8 no

That is, 31 days times $11,250. This would occur if Commission

staff were to provide the accused with notice of the alleged

violation on the same day that the violation commenced, and the

accused were to cure the alleged violation one day after the

statutory 30-day grace period. Cf. App. A-36 to A-37 (discussing

Cal. Pub. Res. Code § 30821(h)).

7

8

The accused merely has the “right” to “propose to the

Commission before the close of the hearing any question(s) for

12

power to demand testimony under oath or to exclude

hearsay or other unreliable testimony, see Cal. Code

Regs. tit. 14, §§ 13186, 13065, and no right to present

any rebuttal evidence, id. § 13185(d)–(e) (allowing

other speakers to testify after the alleged violator has

concluded its testimony and presentation). See App.

A-35.

Trying to make the most of this minimal

procedure afforded them, the Lents submitted

evidence that the structures were permitted,

including (i) plans approved by Los Angeles County

and referenced in the Commission’s own files that

depict the original homebuilder’s intent to place a

stairway along the house’s east side, as well as

(ii) declarations from architects with relevant

experience stating under oath that, at the time that

the house’s construction was approved, the

Commission did not require accessory structures like

gates and exterior steps to be shown in permit

applications.9 App. A-21 to A-22. At the hearing itself,

the Lents’ attorney and Warren Lent testified, App. A10, the latter emphasizing that he and his wife were

not trying to block any public access, but merely

wanted to ensure the safety of their home’s occupants

as well as of the general public. The former would be

any Commissioner, in his or her discretion, to ask of any other

speaker.” Cal. Code Regs. tit. 14, § 13185(a).

9

The Lents had no opportunity to confront and examine those

Commission staff who submitted declarations to the record

shortly prior to the hearing purporting to contradict the Lents’

evidence about (i) the Commission’s past permitting practices

and (ii) on-site discussions between the Lents and Commission

staff about the legality of the Lents’ side-alley structures. Cf. AR

565, 567 (revised Commission staff report relying on these staff

declarations).

13

achieved by maintaining the stairway as a secondary

emergency egress from the home, the latter by

keeping the gate in place to prevent passers-by from

falling down the half-dozen feet to the storm drain

landing. See AR 4216–17 (hearing transcript).

Following

the

Lents’

presentation,

the

Commission heard testimony again from its staff as

well as from the public, including representatives

from the Conservancy and the Mountains Recreation

and Conservation Authority, the current holder of the

easement. These false statements against the Lents—

which they had no opportunity to rebut and which

became part of the Commission’s record—ranged from

allegations about the supposed infeasibility of

alternative access proposals, to how quickly the access

easement could be developed once the structures were

removed, to how much money the Lents had made

from using their house as a vacation rental, and the

extent to which the Lents had designed to thwart

public access. See, e.g., AR 4225–27 (Conservancy

staffer speaking to the alleged unworkability of the

Lents’ alternative access proposals); AR 4235–40

(representative of the California Coastal Protection

Network testifying to the Lents’ property’s supposed

rental revenue based on her own research); AR 4219–

20 (Authority’s executive director inaccurately

referring to the Lents’ neighbors’ private staircase as

an available accessway to the beach and incorrectly

stating that the Authority was “prepared immediately

to open this access way up using this facility right

now” with the help of “rangers”).

The Commission then closed the public hearing

and began to deliberate. They agreed with the staff

14

recommendation that a cease-and-desist order should

be issued. With respect to the penalty, most of the

Commissioners who spoke were of the opinion that the

staff’s recommendation—between $800,000 and

$1,500,000, with a specific proposed penalty of

$950,000, App. A-10—was far too low. As one

Commissioner who urged a $6.5 million fine put it, “I

also want to . . . make it very clear to not only the

Lents, but all the other people who are currently in

violation for not having opened up access ways that

there are serious penalties.” AR 4267, 4286. The

Commissioners ultimately settled upon a penalty of

$4.185 million, more than four times the staff

recommendation. App. A-11. Such a high fine was

necessary because, in another Commissioner’s

estimation, “we don’t want to be in a position . . .

rewarding . . . applicants that have been fighting us.”

AR 4263.

The Lents sought review of the Commission’s

orders through a petition for writ of mandate and

complaint for declaratory relief filed in the Superior

Court for the County of Los Angeles. See App. A-11; B1, B-5. The Lents alleged, among other claims, that

the penalty order statute on its face, and as applied to

them, violates the Due Process Clauses of the United

States and California Constitutions, and that the

$4.185 million penalty is unconstitutional under the

Excessive Fines Clauses of the same. The trial court

granted the petition in part, concluding that the

Commission’s proceeding did not satisfy the Lents’

due process rights. App. B-75. The court ordered the

Commission to provide a new hearing, to inform the

Lents at the start of that hearing of the precise

penalty proposed to be levied against them, and to

15

allow the Lents to provide additional evidence against

that proposed penalty. App. B-76.

The Lents appealed and the Commission crossappealed. In its ruling on both appeals, the court of

appeal affirmed the Commission’s orders in their

entirety. The court of appeal held that the procedures

authorized by the penalty order statute and the

Commission’s regulations satisfy due process. Among

other reasons for that conclusion, the court offered the

following: due process generally does not require

administrative proceedings to offer the full measure of

trial-like safeguards, App. A-35, especially when the

evidence is principally documentary and the decision

is largely evaluative, App. A-39 to A-40; the

Commission is not compelled to issue any minimum

penalty, App. A-36; and the Commission’s decision to

employ cost-saving summary procedure to briskly

resolve alleged public access violations is entitled to

deference, App. A-41 to A-42. The court also ruled that

the Commission’s $4.185 million penalty order is not

unconstitutionally excessive because, among other

reasons, the impeding of beach access by failing to

remove supposed obstructions thereto is a serious

offense. App. A-60 to A-62.

The Lents petitioned for rehearing. In response,

the court of appeal made two minor modifications to

its opinion but otherwise denied the petition. App. D1 to D-2. The Lents then sought review of their due

process and excessive fines claims in the California

Supreme Court. That court denied review without

opinion. App. E-1.

16

REASONS FOR GRANTING THE PETITION

I.

Certiorari Should Be Granted To Resolve the

Many Conflicts Created by the Decision Below

as to the Procedural Safeguards Required To

Protect the “Personal Interest” of the Accused

“The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and

in a meaningful manner.’” Mathews, 424 U.S. at 333

(quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). For any substantial deprivation, that means

a full evidentiary hearing. See Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 546–48 (1985) (summary

hearing prior to dismissal from public employment

permissible only if followed by “a full post-termination

hearing”). Such a hearing must at least be offered

promptly after the deprivation, see Barry v. Barchi,

443 U.S. 55, 66 (1979), but sometimes heightened

procedures need to be provided even before the

deprivation, see Goldberg v. Kelly, 397 U.S. 254, 268–

70 (1970). Whether a pre-deprivation hearing must be

provided and, if so, what procedures it must follow,

depend on (1) “the private interest that will be affected

by the official action,” (2) “the risk of an erroneous

deprivation of such interest through the procedures

used” and “the probable value . . . of additional or

substitute procedural safeguards,” and (3) “the

Government’s interest, including the function

involved and the fiscal and administrative burdens

that the additional or substitute procedural

requirement would entail.” Mathews, 424 U.S. at 335.

17

In rejecting the Lents’ due process challenge

against the penalty order statute, the court of appeal

gave little weight to the accused’s personal interest

under the first Mathews factor. The court reasoned

that this factor was not particularly relevant given

that the Commission is not required to impose any

penalty. App. A-36. The court’s reasoning conflicts

with decisions of this Court, as well as of other lower

courts, that have held that what matters is the upper

limit of the deprivation that may result, not the

possibility that the deprivation may ultimately be

avoided.

For example, in Goldberg this Court held that due

process requires that welfare recipients be given

heightened procedural protections—including the

opportunity to cross-examine adverse witnesses—

before aid may be terminated. 397 U.S. at 268–70. Of

course, the government is not required to terminate

anyone’s benefits merely because a proceeding for

considering whether to do so has been instituted. Yet

the fact that such a favorable outcome for the recipient

is possible does not weaken the due process

safeguards required, precisely because the potential

deprivation—even though not certain to occur—is so

severe. See id. at 263–64.

Similarly, in holding that a full evidentiary

hearing was not required prior to the initial

termination of disability benefits, this Court in

Mathews nevertheless assessed the “private interest”

factor in terms of the potential deprivation that the

benefit recipient faced. Mathews, 424 U.S. at 341 (“As

Goldberg illustrates, the degree of potential

deprivation that may be created by a particular

18

decision is a factor to be considered in assessing the

validity of any administrative decisionmaking

process.”). See generally Santosky v. Kramer, 455 U.S.

745, 759 (1982) (noting the significance of the private

interest in a variety of “government-initiated

proceedings to determine” whether to authorize a

deprivation).

As the following chart reflects, decisions of many

other lower courts are to the same effect:

Court

Personal interest

assessed according to

potentially worst

deprivation?

Fifth Circuit

Yes10

Sixth Circuit

Yes11

Eighth Circuit

Yes12

See Davis v. Page, 714 F.2d 512, 517 (5th Cir. 1983) (per

curiam) (personal interest of parent in maintaining custody of

child “is an extremely important one” despite possibility that

parent will retain custody at conclusion of dependency hearing).

10

See United States v. Silvestre-Gregorio, 983 F.3d 848, 854–55

(6th Cir. 2020) (personal interest of juvenile alien in avoiding

deportation is “substantial” despite the fact that removal is not

the inevitable result of a deportation hearing).

11

See Bliek v. Palmer, 102 F.3d 1472, 1477 (8th Cir. 1997)

(personal interest of food stamp recipient in not having to repay

over-issuances is “vital” despite agency regulation guaranteeing

continued food-stamp eligibility regardless of over-issuance

liability).

12

19

Mich. Supreme Court

Yes13

Wash. Supreme Court

Yes14

Colo. Supreme Court

Yes15

Conn. Supreme Court

Yes16

N.J. Supreme Court

Yes17

N.C. Supreme Court

Yes18

See In re Sanders, 852 N.W.2d 524, 529–30, 535 (Mich. 2014)

(personal interest of parent in maintaining custody of child

“cannot be overstated” despite possibility that parent’s rights will

not be terminated following a dispositional hearing).

13

See City of Bellevue v. Lee, 210 P.3d 1011, 1013–14 (Wash.

2009) (personal interest of motorist in driver license is

“substantial” despite possibility that license will not be

suspended at conclusion of administrative hearing).

14

15 See C.S. v. People, 83 P.3d 627, 636–38 (Colo. 2004) (personal

interest of parent in maintaining parental rights is “extremely

important” despite possibility that parental rights will not be

terminated at conclusion of dependency hearing).

See Giaimo v. City of New Haven, 778 A.2d 33, 54–55 (Conn.

2001) (personal interest of employer in avoiding liability for

worker’s compensation injury is “substantial” despite possibility

that the compensation panel will rule for employer).

16

See Matter of Polk, 449 A.2d 7, 14–16 (N.J. 1982) (personal

interest of doctor in maintaining license to practice medicine is

“substantial” despite possibility that license will not be revoked

upon conclusion of disciplinary hearing).

17

See Wake County, ex rel. Carrington v. Townes, 293 S.E.2d 95,

99–100 (N.C. 1982) (personal interest of defendant in civil

paternity suit is “substantial” despite possibility that defendant

will disprove paternity without assistance of counsel).

18

20

Cal. Court of Appeal

No19

Of course, administrative entities sometimes may

lawfully employ summary procedures, even when

substantial interests are at stake. But such minimal

pre-deprivation process is only constitutional if the

accused has a prompt and full post-deprivation

remedy. See, e.g., Brock v. Roadway Exp., Inc., 481

U.S. 252, 266 (1987) (upholding summary procedure

for temporary reinstatement of an alleged employee

whistleblower because the employer was assured a

post-deprivation

hearing

in

front

of

“the

administrative law judge, before whom an

opportunity for complete cross-examination of

opposing witnesses is provided”); Dixon v. Love, 431

U.S. 105, 109–10 (1977) (upholding summary

procedure for driver license suspension in part

because “as early as practical” afterwards the licensee

was entitled to “a full evidentiary hearing”); Mathews,

424 U.S. at 349 (upholding summary procedure for

termination of disability benefits in part because the

claimant was “assure[d] a right to an evidentiary

hearing . . . before the denial of his claim [became]

final”); Arnett v. Kennedy, 416 U.S. 134, 142–46, 157–

58 (1974) (upholding summary procedure for

termination from federal civil service where fired

employee would be entitled to a post-dismissal

“evidentiary trial-type hearing”). Here, however,

there is no comparable post-deprivation remedy.

Instead, the penalty order recipient is limited to the

closed-record and agency-friendly review standards of

California administrative mandate. See App. A-12 to

19

App. A-36.

21

A-13; B-8 to B-10. See generally Ocean Harbor House

Homeowners Ass’n v. Cal. Coastal Comm’n, 77 Cal.

Rptr. 3d 432, 441 (Ct. App. 2008) ( the reviewing court

“may reverse [the Commission’s] decision only if,

based on the evidence before [the Commission], a

reasonable person could not have reached the

conclusion reached by it”) (internal quotations

omitted).

The court of appeal’s decision significantly

departs from decisions of this Court and other lower

courts as to the employment of the Mathews “personal

interest” factor. Review is therefore merited.

II.

Certiorari Should Be Granted To Resolve the

Many Conflicts Created by the Decision Below

as to the Required Procedural Protections

For Those Who Face a Devastating Deprivation

The court of appeal concluded that a section 30821

penalty order proceeding does not require heightened

procedural protections like cross-examination—the

“greatest legal engine ever invented for the discovery

of truth,” California v. Green, 399 U.S. 149, 158

(1970)—because a determination of liability and

punishment generally will depend on documentary

evidence and evaluative considerations. App. A-39 to

A-40. In so holding, the court of appeal departed from

the precedent of this Court and other lower courts by

asking whether heightened protections would be

valuable for the accurate resolution of every point at

issue in a section 30821 hearing, as opposed to

whether, as this Court and other courts have

22

instructed, they could be so to at least some points at

issue.

To begin, the court of appeal gave no

consideration at all to the presumption, employed by

this Court and other lower courts, that heightened

procedural protections are the rule, not the exception,

when an accused faces potentially catastrophic

consequences. Indeed, in “almost every setting where

important decisions turn on questions of fact, due

process requires an opportunity to confront and crossexamine adverse witnesses.” Goldberg, 397 U.S. at

269. See, e.g., id. at 269–71 (loss of welfare benefits);

Ching v. Mayorkas, 725 F.3d 1149, 1157–59 (9th Cir.

2013) (visa petition to avoid removal); Business

Commc’ns, Inc. v. U.S. Dep’t of Educ., 739 F.3d 374,

380–83 (8th Cir. 2013) (whistleblower complaint from

former employee); McNeill v. Butz, 480 F.2d 314, 322–

24 (4th Cir. 1973) (dismissal from federal

employment); Doughty v. Director of Revenue, 387

S.W.3d 383, 387 (Mo. 2013) (revocation of driver

license); Tyree v. Evans, 728 A.2d 101, 103–05 (D.C.

1999) (civil protection order); Soc’y for Savs. v.

Chestnut Estates, Inc., 409 A.2d 1020, 1025–27 (Conn.

1979) (deficiency judgment against mortgagor); Carr

v. Iowa Employment Sec. Comm’n, 256 N.W.2d 211,

216 (Iowa 1977) (loss of unemployment benefits);

Smith v. Miller, 514 P.2d 377, 385–88 (Kan. 1973)

(school expulsion).

23

To be sure, “when governmental action does not

partake of an adjudication, as for example, when a

general fact-finding investigation is being conducted,

it is not necessary that the full panoply of judicial

procedures be used.” Hannah v. Larche, 363 U.S. 420,

442 (1960). But “when governmental agencies

adjudicate or make binding determinations which

directly affect the legal rights of individuals, it is

imperative that those agencies use the procedures

which have traditionally been associated with the

judicial process.” Id. It is difficult to imagine a better

example of an administrative action that “directly

affect[s] the legal rights of individuals” and thus

merits heightened procedural safeguards than a

section 30821 penalty proceeding, which easily can—

and in the Lents’ case did—result in the imposition of

millions of dollars in penalties.

The court of appeal dismissed the need for

heightened protections because, in its view, a section

30821 proceeding will largely turn upon documentary

evidence and evaluative considerations. App. A-39 to

A-40. But neither this Court nor other lower courts

have ever sanctioned such exceptions to enhanced

procedural protections for proceedings like those

established by section 30821, in which the accused

risks financially crushing penalties and documentary

evidence or evaluative considerations are not the sole

focus of the proceeding.

As for the court of appeal’s supposed

“documentary evidence” carve-out from due process,

this Court has repeatedly cautioned that heightened

procedural protections are not made unnecessary

simply because the proceeding may entail the review

24

of documentary evidence. See Goldberg, 397 U.S. at

269–70; Greene v. McElroy, 360 U.S. 474, 496 (1959).

Cf. Connecticut v. Doehr, 501 U.S. 1, 14–15 (1991)

(notice and hearing required prior to prejudgment

attachment of real estate despite fact that many such

attachments turn on simple disputes resolvable by

documentary proof). Rather, those cases in which the

Court has countenanced relaxed procedural

safeguards

have

concerned

administrative

proceedings that focused on objective facts readily

ascertainable by written evidence, see, e.g., Dixon, 431

U.S. at 113 (traffic ticket records); Mathews, 424 U.S.

at 344–45 (“routine, standard, and unbiased medical

reports”) (citation omitted), or that presented unusual

safety or institutional circumstances justifying

abnormally summary process, see, e.g., Wolff v.

McDonnell, 418 U.S. 539, 567–68 (1974) (prison

disciplinary hearings); Goss v. Lopez, 419 U.S. 565,

577–84 (1975) (school suspensions). None of these

considerations is pertinent to a Commission penalty

order proceeding. For, in every such case, the

Commission is required to take into account such nondocumentary factors as the “nature, circumstance,

extent, and gravity of the violation,” the “sensitivity of

the resource,” the violator’s “degree of culpability,” as

well as “other matters as justice may require,” Cal.

Pub. Res. Code § 30820(c)(1), (3), (5), considerations

that are far from the “ordinarily uncomplicated

matters that lend themselves to documentary proof,”

Mitchell v. W.T. Grant Co., 416 U.S. 600, 609 (1974).20

Moreover, the disputes at issue in Coastal Act penalty

20 The relevance of such non-documentary factors is amply

displayed by the Lents’ case. See supra note 9. Cf. App. A-39

(conceding that the liability phrase of a section 30821 proceeding

“may depend on the testimony of a percipient witness”).

25

order proceedings have little to do with the special

penological or pedagogical interests that have

otherwise justified relaxed procedural protections for

the accused.

As for the court of appeal’s supposed “evaluative

considerations” exception, it is true that this Court

has sanctioned summary procedure for administrative

proceedings that turn upon “subjective and

evaluative” considerations rather than “typical

factual questions.” Bd. of Curators v. Horowitz, 435

U.S. 78, 88–91 (1978) (student dismissal for poor

academic performance). Accord Greenholtz v. Inmates,

442 U.S. 1, 13–16 (1979) (parole determination);

Parham v. J. R., 442 U.S. 584, 608–09 (1979)

(commitment of child for mental health treatment).

But unlike the court of appeal below, this Court has

never approved the abandonment of procedural

protections like the right of cross-examination where,

as here, only part of the administrative proceeding

may be evaluative.21 See Bd. of Curators, 435 U.S. at

90 (hearing not required prior to dismissal for

inadequate academic performance because “[s]uch a

judgment is by its nature . . . subjective and

evaluative”) (emphasis added). Cf. Davis v. Mann, 882

F.2d 967, 973–75 (5th Cir. 1989) (heightened

safeguards not required prior to dismissal from dental

residency program because “[s]uccessful completion of

the residency program depends upon subjective

evaluations”) (emphasis added); Marlboro Corp. v.

Ass’n of Indep. Colls. & Schs., Inc., 556 F.2d 78, 82 (1st

Cir. 1977) (school accreditation did not require “a full21 See App. A-40 n.10 (conceding that the penalty phase of a

section 30821 hearing may require the Commission to consider

“factors [that] depend more on contestable facts”).

26

blown adversary hearing” because the “inquiry was

broadly evaluative in nature”) (emphasis added);

Barros v. Barros, 72 A.3d 367, 377 (Conn. 2013) (no

right to have counsel present for a preliminary child

custody evaluation because “it is an intrinsically

evaluative . . . process”) (emphasis added).

Thus, review is merited to resolve the conflicts

created by the court of appeal’s ruling below

concerning when heightened procedural protections

can be dispensed with under the second Mathews

factor merely because the administrative decision

may only partly involve documentary evidence or

evaluative considerations.

III.

Review Is Needed To Provide the Lower

Courts with Guidance as to How To Evaluate

Whether a Fine Is “Grossly Disproportional”

Under the Excessive Fines Clause

Protection against excessive fines “has been a

constant shield throughout Anglo-American history,”

one that, as codified in the Eighth Amendment, is

“both fundamental to our scheme of ordered liberty

and deeply rooted in this Nation’s history and

tradition.” Timbs v. Indiana, 139 S. Ct. 682, 689

(2019) (internal quotations omitted). The purpose of

the Excessive Fines Clause is “to limit the

government’s power to punish.” Austin v. United

States, 509 U.S. 602, 609–10 (1993). A punishment—

like the administrative penalty levied against the

Lents —is unconstitutionally excessive if it is “grossly

disproportional” to the offense. Bajakajian, 524 U.S.

at 324. To determine whether such a punitive levy is

27

grossly disproportional, this Court in Bajakajian

looked to the respondent’s culpability, the

relationship of the penalty to the harm, and the

penalties authorized for similar conduct. See id. at

337–40.

In rejecting the Lents’ excessive fines challenge to

the $4.185 million administrative penalty order

against them, the court of appeal concluded that the

harm caused by the Lents’ offense—failing to take

action to remove alleged physical impediments to the

development of a public access easement which were

put in place by the Lents’ predecessors-in-interest—

supported a multi-million-dollar penalty. See App. A58 to A-62. The court explained that no public access

currently exists to the portion of the beach near the

Lents’ property, and that “the state places significant

value on the public’s right to access the coast.” App. A61.

But devoid from the court of appeal’s decision is

any attempt to assess the Lents’ alleged wrongdoing

and harm in a comparative context. Although the

court considered the denial of public access to the

beach to threaten a “significant” public value, one

would be hard-pressed to find any legitimate

governmental purpose that could not be described as

“significant.” For that reason, this Court has

underscored that a fine may be unconstitutionally

excessive despite a legislative determination that the

underlying illegality is part of a class of activity that

threatens the public health or welfare. See

Bajakajian, 524 U.S. at 328–29, 338, 344 (forfeiture of

respondent’s $357,144 unconstitutionally excessive,

despite the federal government’s contention that it

28

had “an overriding sovereign interest in controlling

what property leaves and enters the country,” in part

because the respondent was no “money launderer, [ ]

drug trafficker, or [ ] tax evader”). As the following

chart reflects, the same is true of many other lower

courts:

Court

Fine’s alleged

excessiveness is

assessed in

comparative context?

Second Circuit

Yes22

Seventh Circuit

Yes23

Ninth Circuit

Yes24

Mass. Sup. Jud. Court

Yes25

22 von Hofe v. United States, 492 F.3d 175, 191 (2d Cir. 2007)

(forfeiture of wife’s one-half interest in drug house

unconstitutionally excessive, despite “Congress’s judgment

regarding the pernicious effects caused by illicit drugs,” because

her relationship to her husband’s illegal drug activity was

minimal).

United States v. Abair, 746 F.3d 260, 268 (7th Cir. 2014)

(forfeiture of home for “an unusually minor violation of the

structuring statute not tied to other wrongdoing” was likely to be

unconstitutionally excessive).

23

United States v. 3814 NW Thurman Street, Portland, Or., A

Tract of Real Property, 164 F.3d 1191, 1196–97 (9th Cir. 1999)

(“The culpability of the offender should be examined specifically,

rather than examining the gravity of the crime in the abstract.”).

24

25 Pub. Employees Retirement Admin. Comm’n v. Bettencourt, 47

N.E. 3d 667, 678–81 (Mass. 2016) (forfeiture of police officer’s

entire $700,000 pension for conviction of 21 counts of

29

W. Va. Supreme Court

Yes26

N.Y. Court of Appeal

Yes27

D.C. Court of Appeals

Yes28

Utah Supreme Court

Yes29

unauthorized computer access resulting in “a breach of the public

trust” unconstitutionally excessive because the harm “was

relatively small as compared to . . . other cases”).

26 Dean v. W. Virginia, 736 S.E.2d 40, 51–52 (W. Va. 2012)

(forfeiture of a home valued at $100,000 for having made one sale

of illegal drugs valued at $600 would be unconstitutionally

excessive).

27 County of Nassau v. Canavan, 802 N.E. 2d 616, 622 (N.Y.

2003) (although some driving offenses could justify forfeiture of

an automobile, “the forfeiture of an automobile for a minor traffic

infraction such as driving with a broken taillight or failing to

signal would surely be ‘grossly disproportional to the gravity of a

defendant’s offense’”) (quoting Bajakajian, 524 U.S. at 334).

One 1995 Toyota Pick-Up Truck v. District of Columbia, 718

A.2d 558, 566 (D.C. 1998) (forfeiture of vehicle used in

solicitation of prostitute unconstitutionally excessive, despite the

fact that “the impact of prostitution upon the neighborhoods

within which it is practiced is of great civic concern,” because the

owner could “not be made to bear grossly disproportionate

responsibility for the problem of prostitution in the District”).

28

State v. Real Property at 633 East 640 North, Orem, Utah, 994

P.2d 1254, 1260–61 (Utah 2000) (forfeiture of home used in

connection with drug dealing unconstitutionally excessive,

despite “the broad-scale effect of drug trafficking on society,”

because, “[m]easured by any standard, [the homeowner’s] drug

operation was small”).

29

30

California Court of

Appeal

No30

Indeed, it would be contrary to common sense and

common moral feeling to equate—or even to put

within an order of magnitude—(i) the Lents’ alleged

wrongdoing of causing a delay in the development of a

public accessway to a small stretch of beach in a state

that has over 850 existing public accessways along its

1,100-mile coast line,31 with (ii) wrongdoing like

government contracting fraud, toxic dumping,

deceitful advertising, and similarly grave mala in se

that directly harms the public health, safety, or

welfare, and has often been punished with steep fines.

Cf. United States v. Bikundi, 926 F.3d 761, 795–96

(D.C. Cir. 2019) ($40 million forfeiture for “sprawling”

Medicaid fraud); United States v. Bennett, 986 F.3d

389, 399–499 (4th Cir. 2021) ($14 million forfeiture for

bank and securities fraud that “devastat[ed]

generations of investors around the country”); Newell

Recycling Co., Inc. v. EPA, 231 F.3d 204, 210 (5th Cir.

2000) ($1.345 million for 10-year unexplained delay in

cleaning up PCB-contaminated soil pile); Maher v.

Retirement Bd. of Quincy, 895 N.E.2d 1284, 1291–92

(Mass. 2008) (forfeiture of $576,000 pension for

burglary of city hall and theft of personnel file); State

v. Izzolena, 609 N.W.2d 541, 544, 551 (Iowa 2000)

($150,000 mandatory restitution for conviction of

involuntary manslaughter).

30

See App. A-61 to A-62.

31 Cal.

Coastal

Comm’n,

Coastal

Access

Program,

https://www.coastal.ca.gov/access/accessguide.html (last visited

Oct. 6, 2021).

31

The court of appeal’s failure to properly qualify

the harm and the alleged violation highlights a more

fundamental conflict-producing flaw in the court’s

analysis: not taking account of the distinction between

acts and omissions. The Lents were punished the full

$11,250 per day authorized by section 30821 for the

latter, not the former. See AR 505 (rev. Comm’n staff

rep.). But the law has always recognized a meaningful

difference between malfeasance and nonfeasance. See,

e.g., Restatement (Third) of Torts: Phys. & Emot.

Harm § 37 (Am. L. Inst. 2012) (“No Duty of Care with

Respect to Risks Not Created by Actor”); Lambert v.

People of the State of California, 355 U.S. 225, 228

(1957) (holding unconstitutional a felon registration

ordinance in part because it regulated “conduct that is

wholly passive . . . unlike the commission of acts”).

And that distinction is one which, unlike the court of

appeal below, this Court and others have carried over

into the excessive fines context. See Bajakajian, 524

U.S. at 337–38 (nature of the offense as merely “a

willful failure to report the removal of currency from

the United States” that was “unrelated to any other

illegal activities” supported determination that the

currency’s

forfeiture

was

unconstitutionally

excessive); von Hofe, 492 F.3d at 191 (forfeiture of

wife’s one-half interest in home unconstitutionally

excessive because her “offensive conduct boil[ed] down

to her joint ownership” yet she was “being punished

as if she were distributing drugs”); Wilson v. Comm’r

of Rev., 656 N.W.2d 547, 555 (Minn. 2003) (imposition

of employee’s tax liability on employer company and

its owner unconstitutionally excessive in part because

“neither [the owner] nor [the employer company]

participated in the creation of the underlying tax

liability”).

32

Review is therefore merited to resolve the

conflicts created by the decision below concerning

whether inaction that is unrelated to any activity

harmful to public health or safety may nevertheless

merit punitive fines in the millions of dollars. By

answering these particular questions raised by the

Lents’ case, the Court can also provide much-needed

general guidance on how to employ Bajakajian’s

“grossly disproportional” standard. Cf. Nicholas M.

McLean, Livelihood, Ability to Pay, and the Original

Meaning of the Excessive Fines Clause, 40 Hastings

Const. L.Q. 833, 845–46 (2013) (each federal circuit

“has had to develop its own version of the Bajakajian

. . . test”); Wesley Hottot, What is an Excessive Fine?

Seven Questions to Ask After Timbs, 72 Ala. L. Rev.

581, 587 (2021) (“More judicial engagement is

urgently needed.”). The Lents’ case represents an

excellent vehicle for that task. Their multi-milliondollar administrative penalty had little to do with any

actual harm to the public, but was assessed mainly to

punish them for their vigorous defense and to make

examples of them to compel prompt obeisance from

other accused property owners.32 Such an excess of

32 See, e.g., AR 4266 (Comm’r Shallenberger) (arguing for a

substantial increase in the staff’s recommended fine to “reflect

the time and energy and staff resources that have gone in[to]”

prosecuting the Lents, while referencing the many letters sent

by the Lents through counsel asserting that they were not in

violation of the Act); AR 4258 (Comm’r Turnbull-Sanders)

(“[L]ooking at the prior history of violations . . . staff went into

great detail in looking at how many letters, how many points of

contact, how many times there were meetings with the

respondent that were to no avail.”); AR 4277 (Comm’r Bochco)

(“The degree of culpability is obviously very high [because the

Lents kept] sending more—more and more legal rhetoric about,

‘Oh, gee, is this—you know, is this really the law?’”).

33

punitive zeal is precisely what the Excessive Fines

Clause was meant to guard against. See Austin, 509

U.S. at 610.

IV.

Whether an Agency May, Contrary to

Typical Administrative Practice, Levy

Multi-Million-Dollar Fines Using Only

Summary Procedure, Is an Important

Issue Worthy of This Court’s Review

Even prior to the enactment of section 30821, the

Commission’s enforcement power was unparalleled.

See Jonathan Zasloff, Taking Politics Seriously: A

Theory of California’s Separation of Powers, 51 UCLA

L. Rev. 1079, 1080 (2004) (“[T]he California Coastal

Commission [is] arguably the most powerful land use

authority in the nation . . . .”). Since that power was

made gargantuan through the grant of penalty order

authority, the Commission and its staff have readily

employed it to deprive landowners like the Lents of

millions of dollars. See Cal. Coastal Comm’n, Report to

California Legislature on Implementation of Coastal

Commission Administrative Penalty Authority From

2015-2018, at 20 (2019) (through 2018, the

Commission had issued just short of ten orders, with

an average penalty of about $1 million). That,

however, is a pittance compared to what the

Commission will be able to extract from hapless

coastal property owners in light of the California

Legislature’s recent and dramatic augmentation of

the penalty order power’s reach. Under newly enacted

legislation, the Commission may unilaterally impose

penalties—using

its

summary

procedure—for

violation of any provision of the Coastal Act, not just

34

its public access provisions. See S.B. 433 (Allen), 20212022 Reg. Sess. (Cal. 2021), effective Jan. 1, 2022

(enacting Cal. Pub. Res. Code § 30821.3(a)).

This Court’s corrective review is urgently needed.

There is no reason to believe that the Lents’ ordeal

will be the exception.33 The Commission has a deeprooted habit of using its crippling regulatory power

with scant regard for the property rights of those

citizens who tangle with it. See Nollan v. Cal. Coastal

Comm’n, 483 U.S. 825, 837–39 (1987) (rejecting a

Commission permitting exaction policy as an “outand-out plan of extortion” (quoting J.E.D. Assocs., Inc.

v. Atkinson, 432 A.2d 12, 14 (N.H. 1981)); Bowman v.

Cal. Coastal Comm’n, 179 Cal. Rptr. 3d 299, 303–04

(Ct. App. 2014) (rejecting Commission’s attempt to use

administrative collateral estoppel to impose an

easement in violation of Nollan). See generally

J. David Breemer, What Property Rights: The

California Coastal Commission’s History of Abusing

Land Rights and Some Thoughts on the Underlying

Causes, 22 UCLA J. Envtl. L. & Pol’y 247 (2004).

This Court can check the Commission’s unbridled

enforcement power and strike a blow for

constitutional liberties without threatening normal

33 But it may be the Court’s only opportunity to review the

Coastal Act’s administrative penalty regime. For no rational

property owner will now want to run the risk of contesting a

proposed penalty only to be saddled with a quadrupled (or worse)

fine. Instead, an accused will effectively be compelled to agree to

a “consent” order, thereby waiving the right to contest that order.

See, e.g., Consent Cease & Desist Order No. CCC-18-CD-03,

Consent Restoration Order CCC-18-RO-02, at 17 (Aug. 29, 2018)

(requiring waiver of respondents’ right of judicial review),

available at https://bit.ly/3Fqltez.

35

agency practice in other jurisdictions. Although

penalty authority is common among administrative

agencies, no entity other than the Coastal

Commission enjoys (for now) such unchecked penalty

power as that granted by the Coastal Act’s penalty

order provision. For example, in federal practice, an

accused who faces a substantial administrative

penalty under the Clean Water Act, 33 U.S.C.

§ 1319(g), the Clean Air Act, 42 U.S.C. § 7413(d)(2),

the Endangered Species Act, 16 U.S.C. § 1540(a)(2),

the Magnuson Fisheries Act, 16 U.S.C. § 1855(a), the

Comprehensive

Environmental

Response,

Compensation, and Liability Act, 42 U.S.C.

§ 9609(b)(5), or the Toxic Substances Control Act, 15

U.S.C. § 2615(a)(2), is entitled to a formal

adjudicatory hearing, including the right to present

and request evidence under oath to a neutral

administrative law judge, to supplement with rebuttal

evidence, and to cross-examine witnesses. See 5

U.S.C. §§ 554, 556(c)–(d).

This Court’s review is therefore needed not just to

protect the freedoms of those millions of citizens who

dwell within or visit the Coastal Act’s coastal zone, but

also the freedoms of Americans in other jurisdictions

whose legislatures or administrative agencies may be

tempted to follow the Commission’s bad example.

36

CONCLUSION

The petition for writ of certiorari should be

granted.

DATED: October 2021.

PAUL J. BEARD II

DAMIEN M. SCHIFF*

FisherBroyles LLP

*Counsel of Record

4470 W. Sunset Blvd.,

JOSHUA P. THOMPSON

Suite 93165

JEREMY TALCOTT

Los Angeles, CA 90027

Pacific Legal Foundation

Telephone: (818) 216-3988

555 Capitol Mall, Suite 1290

paul.beard@fisherbroyles.com Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

JThompson@pacificlegal.org

JTalcott@pacificlegal.org

Counsel for Petitioners