Amicus Curiae Brief — Warren M. Lent, et al., Petitioners v. California Coastal Commission, et al.

No. 21-563

IN THE

Supreme Court of the United States

_________________________________________________

WARREN M. LENT ET AL.,

Petitioners,

v.

CALIFORNIA COASTAL COMMISSION, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari

to the California Court of Appeal,

Second Appellate District

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 17, 2021

i

TABLE OF CONTENTS

Table of Authorities ...................................................... ii

Brief of Amicus Curiae in Support of Petitioner ........ 1

Interest of Amicus Curiae ............................................ 1

Summary of Argument ................................................. 2

Argument ....................................................................... 4

I.

The “Informal Hearing” At the Public Meeting

Was a Rigged Show Trial..................................... 4

A.

Lack of Basic Procedural Rights. ................ 5

1. Before the Public Meeting, Respondents are

Denied Basic Discovery ................................ 5

2. At the Public Meeting, Respondents Cannot

Meaningfully Respond to or Challenge the

Allegations Against Them ............................ 7

3. The Public Meeting Was a Sham Hearing: A

Video Is Worth Ten Thousand Words ....... 11

II.

B.

The Commission Has a Financial Interest in

Imposing Draconian Penalties .................. 13

C.

Lack of Meaningful Judicial Review ........ 15

The Act’s Administrative Penalty Scheme

Violates Due Process .......................................... 16

A.

The Act Violates Due Process by Foreclosing

Meaningful Judicial Review. ..................... 18

B.

Due Process Bars Imposition of QuasiCriminal Penalties Through an Informal

Administrative Process.............................. 19

Conclusion ................................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. Manzo,

380 U.S. 545 (1965) ...................................... 17, 20

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ...............................................9

Ford v. Wainwright,

477 U.S. 399 (1986) ...............................................9

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) ...................................... 18, 19

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

537 F.3d 667 (D.C. Cir. 2008)...............................5

In re Murchison,

349 U.S. 133 (1955) .............................................17

Life & Cas. Ins. Co. v. McCray,

291 U.S. 566 (1934) .............................................19

Lorenzo v. SEC,

872 F.3d 578 (D.C. Cir. 2017).............................20

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) .............................................17

iii

Nollan v. Cal. Coastal Com.,

483 U.S. 825 (1987) .............................................22

Sackett v. EPA,

566 U.S. 120 (2012) .............................................16

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) .................................. 17, 22

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) .............................................19

Timbs v. Indiana,

139 S. Ct. 682 (2019) ...........................................17

TVA v. Whitman,

336 F.3d 1236 (11th Cir. 2003) ..........................20

Tull v. United States,

481 U.S. 412 (1987) ...................................... 21, 22

United States v. Arthrex, Inc.,

141 S. Ct. 1970 (2021) .................................. 19, 20

Wadley S. Ry. Co. v. Georgia,

235 U.S. 651 (1915) .............................................19

Wellness Int’l Network, Ltd. v. Sharif,

575 U.S. 665 (2015) .............................................22

Williams v. Pennsylvania,

136 S. Ct. 1899 (2016) .........................................17

Withrow v. Larkin,

421 U.S. 35 (1975) ...............................................17

iv

Constitution

U.S. Const. amend. V ...............................................17

U.S. Const. amend. XIV, § 1 ............................... 16, 1

Statutes

Cal. Civ. Proc. Code § 1094.5 ...................................16

Cal. Pub. Res. Code § 30301(d)–(e) .........................14

Cal. Pub. Res. Code § 30801 ....................................15

Cal. Pub. Res. Code § 30812(a)–(b) .........................10

Cal. Pub. Res. Code § 30821(j) .................................14

Cal. Pub. Res. Code § 30823 ....................................14

Cal. Pub. Res. Code § 30830 ....................................14

Regulations

Cal. Code Regs. tit. 14, § 13065 ........................ 3, 8, 9

Cal. Code Regs. tit. 14, § 13185(e)–(f) ................ 9, 10

Cal. Code Regs. tit. 14, § 13186 .................................9

Other Authorities

Nathan S. Chapman & Michael W.

McConnell, Due Process as Separation of

Powers, 121 Yale L. J. 1672 (2012) ............. 20, 21

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. As

part of this mission, it appears as amicus curiae before

federal and state courts. AFPF has a particular

interest in this case because it believes businesses and

individuals, like the Lents, are constitutionally

entitled to due process of law before the government

may deprive them of property rights and impose

draconian quasi-criminal penalties.

Section 30821 of the California Coastal Act, Cal.

Pub. Res. Code § 30821, violates the Constitution’s

promise of due process by allowing the California

Coastal Commission (“CCC” or “Commission”) to

impose millions of dollars of so-called “administrative

civil penalties” for alleged malum prohibitum “beach

access” violations after an “informal” hearing held as

All parties have consented to the filing of this brief after

receiving timely notice. Amicus curiae states that no counsel for

any party authored this brief in whole or in part, and no entity

or person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

1

2

part of a public meeting before an administrative

tribunal that acts as prosecutor and judge in its own

cause. Due process demands more. Affected property

owners, like the Lents, are entitled to a fair hearing

on a level playing field before a neutral, independent

judge in a court of law, with basic procedural

safeguards, including fair notice of the potential

penalty and potential witnesses, a right of crossexamination under oath, and a right to respond to the

charges against them. If the CCC wants to prosecute

the Lents for alleged “beach access” violations and

seek millions of dollars in quasi-criminal penalties,

the Constitution requires it do so in a court of law

before an independent, neutral, and unbiased judge.

SUMMARY OF ARGUMENT

The stakes of this case are high for both the Lents

and the U.S. Constitution. At issue here is a

$4,185,000 “administrative civil penalty” the CCC

imposed on the Lents for an alleged violation of the

terms of an easement. That quasi-criminal penalty

was imposed after a three-and-a-half-hour “informal”

hearing at a public meeting. The Lents had no notice

of the magnitude of the penalty under consideration

and no right to respond to, let alone cross-examine,

the unsworn statements of surprise “witnesses” who

made new factual assertions, introduced new

damages calculations, and argued for the first time

the penalty should be increased several-fold over that

which staff recommended. That is no exaggeration—

and all of this is captured on video.

The California statutory scheme at issue

authorizes imposition of “administrative civil

penalties” at an informal public meeting that marries

3

Kafka’s The Trial2 to public dogpiling. Before the

public meeting, respondents, facing millions of dollars

of quasi-criminal penalties, are denied basic

discovery, including the ability to subpoena

documents and witnesses, notice of third parties who

will give unsworn “testimony” against them at the

public meeting, and the substance of the expected

testimony. At the public meeting, hearsay,

unauthenticated documents, and similarly unreliable

materials may be considered, “regardless of the

existence of any common law or statutory rule which

might make improper the admission of such evidence

over objection in civil actions.” Cal. Code Regs. tit. 14,

§ 13065. Respondents like the Lents are not allowed

to call or cross-examine witnesses under oath.

Perhaps worse, after a respondent gives a short

defense presentation, third parties may emerge from

the woodwork to give unsworn fact and quasi-expert

testimony, respond to the defense presentation, and

introduce new and unauthenticated materials, as

happened here. Yet, respondents are prevented from

responding, even though CCC Staff has that right.

After that, the Commission—an administrative

body with a financial interest in the revenue it

generates via its “unilateral administrative penalty”

orders—deliberates on the fly and picks a number for

the penalty (in this case, well over $ 4 million, which

is more than four times what even CCC Staff

recommended).

2 Franz Kafka, Der Process

(1925).

[The Trial], Vierlag die Schmiede

4

The practical reality is that the “informal” public

meeting is a show trial with a preordained result.

Indeed, this strange, new “unilateral administrative

penalty” power appears to serve primarily as an in

terorrem effect on property owners, discouraging any

challenge to the CCC’s onerous compliance demands.

And here, the CCC made a very public example of the

Lents to send a message. If the CCC’s actions are

allowed to stand, it is unlikely this Court will have

another opportunity to intervene in the foreseeable

future, as few, if any, affected property owners will be

willing to challenge the CCC. See Pet. 34 n.33. The

Court should step in now and put a stop to this novel

variant of due process violation before it spreads, as

this will likely be this Court’s best chance to do so.

At a broader level this case is about whether

bureaucratic expediency can override due process

rights. The answer must be “no.” This case provides

an ideal vehicle for the Court to reaffirm due process

rights guaranteed in the Constitution. California’s

dangerous experiment with using informal public

meetings to impose millions of dollars of quasicriminal penalties for putative “beach access”

violations should be stopped.

ARGUMENT

I.

THE “INFORMAL HEARING” AT THE PUBLIC

MEETING WAS A RIGGED SHOW TRIAL.

California’s unprecedented experiment with

imposition of quasi-criminal penalties at public

meetings has several features that, standing alone,

5

raise serious due process problems.3 These features

include denying respondents basic discovery rights,

including notice of the “witnesses” against them;

denying respondents any opportunity to respond to,

let alone cross-examine, third parties who appear at

the informal hearing to give adverse “testimony”;

allowing the Commission—which has a financial

interest in the revenue generated through imposition

of administrative penalties—to adjudicate liability

and determine the amount of the penalty; and denying

respondents judicial review at a meaningful time.

When combined, this toxic mixture is something out

of a Kafkaesque nightmare.

A. Lack of Basic Procedural Rights.

1. Before the Public Meeting, Respondents

are Denied Basic Discovery.

For starters, respondents like the Lents have no

ability to conduct written discovery, subpoena

documents, or subpoena or call witnesses—depriving

As Petitioner explains, the CCC’s “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

guaranteeing the defendant only the barest of procedure

safeguards.” Pet. 3–4. Cf. Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting) (“Justice Holmes reminded us that

‘a page of history is worth a volume of logic.’ Perhaps the most

telling indication of the severe constitutional problem with the

PCAOB is the lack of historical precedent for this entity.”

(cleaned up; emphasis added)), overruled, 561 U.S. 477 (2010).

3

6

them of their lawful ability to make a defense. Nor did

the Lents receive notice of the potential magnitude of

penalties

the

Commission

could

impose,

notwithstanding the relevance of this basic

information to an ability-to-pay defense; the identity

of parties who would testify against them; or the

nature of the expected testimony. See Pet. 2–3. These

limitations are highly prejudicial.

By way of example, the factual assertions

contained in a letter a state agency (the California

State Coastal Conservancy (“SCC”)) and a so-called

joint public agency (the Mountains Recreation and

Conservation Authority (“MRCA”)) sent to the CCC

Chief of Enforcement in June 2016 were extensively

relied on and cited in the CCC Staff Report

recommending issuance of a cease-and-desist order

and imposition of nearly $1 million in penalties.4

Before the hearing, the Lents attempted to challenge

the accuracy of the SCC & MRCA letter’s allegations.

Indeed, believing the SCC & MRCA letter’s claims to

be “totally inconsistent with the repeated written

statements by the Conservancy attorney to the Lents’

attorneys, with the repeated written statements of the

Conservancy attorney to the Lents’ attorneys that no

4 See Staff Report: Recommendations and Findings for Cease and

Desist Order and Administrative Civil Penalty, Nos. CCC-16CD-03, CCC-16-AP-01, Warren and Henny Lent, 20, 36, 38, 56,

57, 62, 72, 80, 93 (Nov. 18, 2016) [hereinafter “Staff Report”]

(citing Exhibit 59 (Letter from SCC & MRCA to CCC (June 6,

2016)),

available

at

https://documents.coastal.ca.gov/reports/2016/12/th5.3s-122016.pdf#page=303. Exhibit 59 is available online here:

https://documents.coastal.ca.gov/reports/2016/12/th5.3s-122016.pdf#page=780.

7

determination had yet been made regarding the

opening of the accessway”—an important point of

contention, see also Pet. 13—the Lents’ counsel

requested “the opportunity to take discovery of the

signatories of said letter” prior to the public meeting.5

But to no avail.

2. At the Public Meeting, Respondents

Cannot Meaningfully Respond to or

Challenge the Allegations Against Them.

The procedures used at the informal public

meeting are equally unfair. The CCC Staff Report

recommending issuance of a cease-and-desist order

and imposition of “administrative civil penalties”

sums up the core “hearing procedures” this way:

The Chair shall . . . have staff indicate

what matters are parts of the record

already, and . . . announce the rules of

the proceeding, including time limits for

presentations . . . . Staff shall then

present the report and recommendation

. . . , after which the alleged violator(s),

or their representative(s), may present

their position(s) . . . . The Chair may then

recognize other interested persons, after

which time staff typically responds to the

5 Email from Alan Block to Peter Allan et al., Subject: Request

for Postponement of C&D Order No. CCC-16-CD-03 and

Administrative Penalty, No. CCC-16-AP-01 (Nov. 23, 2016),

https://documents.coastal.ca.gov/reports/2016/12/th5.3s-122016.pdf#page=44.

8

testimony and

introduced.6

any

new

evidence

The report continues: “The Commission will

receive, consider, and evaluate evidence in accordance

with the same standards it uses in its other quasijudicial proceedings.”7 After “the presentations are

completed,” the public hearing closes, except that

“[t]he Commissioners may ask questions of any

speaker at any time during the hearing or

deliberations[.]”8 Then, shortly thereafter, at that

same informal public hearing, the Commission votes

on the proposed relief.9

What does this mean when unpacked? Put simply,

respondents in “beach access” administrative

enforcement actions in which multi-million-dollar

quasi-criminal penalties can be assessed have

shockingly limited ability to contest the evidence

against them at the informal public meeting, which

lacks any hallmark of due process.

To begin, the lax evidentiary standard that obtains

at the public meeting allows the Commission to

consider highly unreliable materials and unsworn

statements that would be inadmissible in civil

proceedings. California regulations provide “the

hearing need not be conducted according to technical

rules relating to evidence and witnesses.” Cal. Code

6 Staff Report, supra note 4, at 10–11.

7 Id. at 11.

8 Id.

9 See id.

9

Regs. tit. 14, § 13065 (Evidence Rules); see also Cal.

Code Regs. tit. 14, § 13186 (“Presentation and

consideration of evidence at a hearing on a proposed

cease and desist order shall be governed by the

standards set forth in section 13065 of these

regulations.”). And unlike civil enforcement

proceedings in a neutral court of law, under the CCC’s

administrative civil penalty process, “[a]ny relevant

evidence shall be considered if it is the sort of evidence

on which responsible persons are accustomed to rely

in the conduct of serious affairs, regardless of the

existence of any common law or statutory rule which

might make improper the admission of such evidence

over objection in civil actions.” Cal. Code Regs. tit. 14,

§ 13065 (emphasis added).

Perhaps worse, third parties may show up to make

unsworn statements in these proceedings, which may

then be relied upon by the Commission in justifying

imposition of liability and penalties. See Cal. Code

Regs. tit. 14, § 13185(e)–(f). “The essential

requirements of due process . . . are notice and an

opportunity to respond.” Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985). Yet respondents

are not even entitled to notice of who will show up at

the informal public hearing to testify against them, let

alone the substance of the allegations these third

parties might make and copies of whatever materials

they plan to introduce and use in their presentations.

Nor do respondents have any ability to challenge

these unsworn statements. It is axiomatic that “‘crossexamination . . . is beyond any doubt the greatest legal

engine ever invented for the discovery of truth.’” Ford

v. Wainwright, 477 U.S. 399, 415 (1986) (citation

omitted). Yet, respondents have no right of cross-

10

examination. Indeed, respondents are not even

provided an opportunity—any opportunity—to in any

way respond to the third parties’ claims, even though

CCC Staff has this right. See Cal. Code Regs. tit. 14,

§ 13185(e)–(f) (“[O]ther speakers may speak

concerning the matter; [] the chair shall close the

public hearing after the staff, all alleged violators, and

the public have completed their presentations, except

that the chair may allow staff to respond to particular

points raised by other speakers[.]”).

What this means is the only process the Lents

received before being subjected to a $4,185,000

penalty10 was an opportunity to submit to the

Commission statements of objections and defenses,

see Cal. Pub. Res. Code § 30812(a)–(b), attempting to

respond to a voluminous 700-page-plus staff report

(and exhibits) with proposed findings and

recommendations the Lents received about two weeks

before the hearing, and the ability to make an about50-minute-long presentation at the public meeting.11

See Pet. 11–13 & n.9. A variety of hostile third parties

then came out of the woodwork and made unsworn

statements against them that they were not allowed

to address. See Pet. 13; Pet. App. A-10, B-70, B-72.

10 The Commission’s penalty orders are immediately effective.

See Pet. App. C-12.

11 See Staff Report: Recommendations and Findings for Cease

and Desist Order and Administrative Civil Penalty, CCC Nos.

CCC-16-CD-03, CCC-16-AP-01, Warren M. and Henny S. Lent

(Nov.

18,

2016),

available

at

https://documents.coastal.ca.gov/reports/2016/12/th5.3s-122016.pdf#page=303.

11

3. The Public Meeting Was a Sham

Hearing: A Video Is Worth Ten

Thousand Words.

These due process violations are not abstract. This

Court can see for itself what happened here in the

video recording of the public meeting.12 And it is

worth watching. It took approximately an hour and a

half for both Staff and the Lents to give their

presentations.13 Then the surprise third-party

witnesses gave unsworn, uncross-examined fact and

quasi-expert testimony against the Lents, including

as to disputed material facts.14 These third parties

also successfully argued for enhanced penalties

beyond that which even Staff recommended.15 Both

signatories of the late-disclosed SCC & MRCA letter

to CCC enforcement staff—the same individuals that

the Lents unsuccessfully sought to take discovery of—

appeared at the public hearing as unsworn de facto

Cal. Coastal Comm’n Meeting, available at https://calspan.org/unipage/?site=cal-span&owner=CCC&date=2016-1208 (starting at 1:28).

13 See id. at 1:28–3:03.

14 See id. at 3:04–3:39.

15 See id. at 3:18:00–3:39:50. See also Amicus Br. of Surfrider

Found., Lent et al. v. California Coastal Commission, No.

B292091, at 8–9 (Cal. Ct. App., filed July 15, 2020) (“At the

hearing, Surfrider’s representatives argued that the Commission

should consider applying the full penalty amount of

approximately $8.4 million, rather than the much smaller

amount that Commission staff had initially proposed.”).

12

12

fact witnesses.16 See Pet. 13. Another third party

introduced untested damages calculations and

unauthenticated materials relating to alleged

advertising regarding the Lents’ rental of their

property during her uninterrupted presentation.17

Before this, the Lents did not know who would

testify against them. Nor did the Lents have a right to

cross-examine under oath these third parties at the

public meeting. See Pet. 2–3. In fact, the Lents had no

opportunity to respond in any way to any of the

unsworn statements by the hostile third parties, nor

the materials they purported to introduce or their

damages calculations far exceeding the penalty

recommendations of Staff. Yet after this, Staff was

allowed to speak again and give a supplemental

presentation.18

The Commission deliberated for just 15 minutes

before unanimously voting in favor of issuing a ceaseand-desist order.19 Immediately thereafter, a

Commissioner moved for administrative civil

16 See Cal. Coastal Comm’n Meeting, supra note 12, at 3:03:50–

3:07:26 (MRCA) (addressing subject matter of letter); 3:09:16–

3:13:14 (SCC) (same). See also Pet. App. A-10 (“After the Lents’

presentation, several individuals spoke, including the executive

officer of the Conservancy. The executive officer stated that the

only impediment to opening the easement for public access was

the Lents’ refusal to remove the structures[.]”).

17 See Cal. Coastal Comm’n Meeting, supra note 12, at 3:24:50–

3:30:18.

18 See Cal. Coastal Comm’n Meeting, supra note 12, at 3:39:50–

3:42:50.

19 See id. at 3:46–4:01:05.

13

penalties as recommended by Staff and discussions

continued as to raising the amount of the penalty, in

line with what the surprise third-party witnesses had

advocated. Less than an hour later, the Commission

began voting on the amount of the penalty,20

ultimately settling at $4,185,000.21 This entire

process for imposing millions of dollars of quasicriminal penalties took just under three-and-a-half

hours. It took the Commission 50 minutes to

determine to increase four-fold the “administrative

civil penalty” from $950,000, as recommended by

Staff, to $4,185,000.22 See also Pet. 14.

This is not the process one would expect before

government imposition of more than $4 million in

quasi-criminal penalties against property owners.

And the video of the proceeding poignantly lays bare

the due process problems here in a way that no cold,

sterile record could.

B. The Commission Has a Financial Interest

in Imposing Draconian Penalties.

As the video of the public meeting shows, issuance

of a cease-and-desist order and imposition of an

administrative penalty was a fait accompli—

unsurprising given that the CCC is prosecutor and

judge in its own cause. The only question was how

much the Commission was going to award itself—with

debate among the Commissioners focusing on how

20 See id. at 4:46:30.

21 See id. at 4:48:45–4:50:40.

22 The trial court correctly found that the Commission imposed

punitive “quasi-criminal” penalties. See Pet. App. B-8, B-69.

14

much to increase the administrative penalty

recommended by Staff. That, too, is unsurprising

given the Commission’s incentive to levy penalties as

a source of revenue to fund its operations.23

The way the scheme works is that the revenues the

CCC extracts from property owners like the Lents go

into an account administered by the Coastal

Conservancy.24 See Cal. Pub. Res. Code § 30821(j)

(“Revenues derived pursuant to this section shall be

deposited into the Violation Remediation Account of

the Coastal Conservancy Fund and expended

pursuant to Section 30823.”). These funds “shall be

expended for carrying out the provisions of this

division [i.e., the Coastal Act], when appropriated by

the Legislature.” Cal. Pub. Res. Code § 30823.25 The

CCC is tasked with primary responsibility for the

implementation of the provisions of” the Coastal Act.

Cal. Pub. Res. Code § 30330. Thus, the same

Commissioners who decide liability and set the

administrative penalty “know the revenue from

penalties imposed under section 30821 will be used (if

at all) to carry out the provisions of the Coastal Act,

23 The decision below recognized that “[t]he Coastal Act may give

the commissioners at least some incentive to impose substantial

fines under section 30821.” Pet. App. A-52.

24 See also CCC, Coastal Act Section 30821 Implementation

Progress Report, 15 (Feb. 2018) (stating that “California Coastal

Conservancy’s Violation Remediation Account . . . is managed

with

input

from

Commission

staff.”),

https://documents.coastal.ca.gov/reports/2018/2/th9/th9-2-2018report.pdf

25 A majority of Commissioners are appointed by the legislature.

See Cal. Pub. Res. Code § 30301(d)–(e).

15

which by statute they are required to implement[.]”

Pet. App. A-49.

As the Commission itself has explained, “the

administrative penalties that the Commission has

imposed, or is collecting through a mutual settlement

of liability under Section 30821, have . . . resulted in

significant funds that will support public access and

recreation projects along the California coast.” 26 By all

indications, the penalties are also used, in part, to

fund the CCC’s enforcement activities.27

C. Lack of Meaningful Judicial Review.

Judicial review of Commission cease-and-desist

and administrative penalty orders is also exceedingly

limited. Review may only be obtained “by filing a

petition for a writ of mandate in accordance with

Section 1094.5 of the [California] Code of Civil

Procedure” after liability and penalties have been

imposed. Cal. Pub. Res. Code § 30801. The scope of

review in these administrative mandamus actions is

narrow and deferential, “extend[ing] to the questions

whether the respondent has proceeded without, or in

26 Report to California Legislature on Implementation of Coastal

Commission Administrative Penalty Authority From 2015-2018,

at 24 (Jan. 2019) [hereinafter “Administrative Penalty Report”],

https://documents.coastal.ca.gov/reports/2019/2/W8/W8-22019.pdf.

27 See, e.g., CCC, Enacted Budget for FY 2020-21/Upcoming FY

2021-22 Budget, (Dec. 2020) (“The FY 2020-21 Budget authorizes

an additional three years of funding for two key Enforcement

positions from the Violation Remediation Account[,] . . . which

holds fines and penalties from Coastal Act violations.”),

https://www.coastal.ca.gov/budget/.

16

excess of, jurisdiction; whether there was a fair trial;

and whether there was any prejudicial abuse of

discretion.” Cal. Civ. Proc. Code § 1094.5(b). The

deferential “substantial evidence” standard applies.

See Cal. Civ. Proc. Code § 1094.5 (“[A]buse of

discretion is established if the court determines that

the findings are not supported by substantial evidence

in the light of the whole record.”).

Perhaps worse, the timing of judicial review means

that administrative penalties, which accrue daily

during the period of investigation and settlement

discussions, can continue to accrue for a long period of

time before liability is imposed at the public meeting.

Cf. Sackett v. EPA, 566 U.S. 120, 132 (2012) (Alito, J.,

concurring) (“And if the owners want their day in

court to show that their lot does not include covered

wetlands, well, as a practical matter, that is just too

bad. Until the EPA sues them, they are blocked from

access to the courts, and the EPA may wait as long as

it wants before deciding to sue.”). By the time the

Commission holds its public meeting “fines may easily

have reached the millions. In a Nation that values due

process, not to mention private property, such

treatment is unthinkable.” Id. (Alito, J., concurring).

II.

THE ACT’S ADMINISTRATIVE PENALTY SCHEME

VIOLATES DUE PROCESS.

Under the Fourteenth Amendment, no person may

be deprived of “life, liberty, or property, without due

17

process of law.” 28 U.S. Const. amend. XIV, § 1; accord

U.S. Const. amend. V. See also Sessions v. Dimaya,

138 S. Ct. 1204, 1224 (2018) (Gorsuch, J., concurring

in part and concurring in judgment). It is axiomatic

that “[a] fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349

U.S. 133, 136 (1955). “The Due Process Clause entitles

a person to an impartial and disinterested tribunal in

both civil and criminal cases.” Marshall v. Jerrico,

Inc., 446 U.S. 238, 242 (1980). “This [also] applies to

administrative agencies which adjudicate as well as to

courts.” Withrow v. Larkin, 421 U.S. 35, 46 (1975).

And at a minimum, due process requires an

“opportunity to be heard . . . at a meaningful time and

in a meaningful manner.” Armstrong v. Manzo, 380

U.S. 545, 552 (1965) (citation and internal quotation

marks omitted).

That did not happen here. Nor could it, as the

neutrality and independence due process requires

cannot be replicated within novel administrative

bodies like the CCC. Cf. Williams v. Pennsylvania,

136 S. Ct. 1899, 1905 (2016) (“[A]n unconstitutional

potential for bias exists when the same person serves

as both accuser and adjudicator in a case.”). That is

because when, as here, quasi-criminal penalties are at

issue, due process requires a full and fair hearing in

28 The Fourteenth Amendment makes the Eighth Amendment’s

Excessive Fines Clause applicable against the states. See Timbs

v. Indiana, 139 S. Ct. 682, 686–87 (2019). The Fourteenth

Amendment’s text, structure, and history also shows that it

incorporates the Seventh Amendment’s jury-trial right against

the states. See generally id. at 692–93 (Thomas, J., concurring

in the judgment). Both were violated here.

18

the first instance in a neutral, independent court of

law, with all of the procedural safeguards that entails.

A. The Act Violates Due Process by

Foreclosing Meaningful Judicial Review.

The Act denies affected property owners a safe

pathway to meaningful judicial review by essentially

requiring them to risk their homes as a condition of

challenging the CCC in court. The CCC’s penalty

authority for beach-access violations gives the

Commission the ability to coerce compliance with its

demands and extract payments through consent

orders. That is by design. As the CCC has stated: “The

daily accrual of penalties, coupled with the potential

for a high daily penalty amount, provides a strong

incentive for a violator to comply quickly, as the total

potential liability may increase considerably each day

that the violation remains.” 29

According to the CCC, its settlement rate for

beach-access cases “since 2014 can be attributed, in

part, to Section 30821. The prospect of daily

administrative penalties under Section 30821, which

can, theoretically, total over $4 million per year per

violation, provides a strong incentive for violators to

settle their cases expeditiously.”30 This means that

property owners like the Lents must literally bet their

house to get their day in court. Cf. Free Enter. Fund v.

Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 490

(2010) (Courts “normally do not require plaintiffs to

29 Administrative Penalty Report, supra note 26, at 6.

30 Id. at 20.

19

bet the farm . . . by taking the violative action before

testing the validity of the law[.]” (cleaned up)).

This is precisely the “situation in which

compliance is sufficiently onerous and coercive

penalties sufficiently potent that a constitutionally

intolerable choice might be presented.” Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 218 (1994). The

right to judicial review “is merely nominal and

illusory if the party to be affected can appeal to the

courts only at the risk of having to pay penalties so

great that it is better to yield to orders of uncertain

legality rather than to ask for the protection of the

law.” Wadley S. Ry. Co. v. Georgia, 235 U.S. 651, 661

(1915). And “[t]he price of error may be so heavy as to

erect an unfair barrier against the endeavor of an

honest litigant to obtain the judgment of a court. In

that event, the Constitution intervenes and keeps the

court room open.” Life & Cas. Ins. Co. v. McCray, 291

U.S. 566, 574–75 (1934) (Cardozo, J.). So too here.

B. Due Process Bars Imposition of QuasiCriminal Penalties Through an Informal

Administrative Process.

More fundamentally, due process requires severe

penalties can only be obtained through a civil

enforcement action before an independent, unbiased

judge—and in a court of law.31 “Before the

31 See also United States v. Arthrex, Inc., 141 S. Ct. 1970, 1993

(2021) (Gorsuch, J., concurring in part, dissenting in part) (“Any

suggestion that the neutrality and independence the framers

20

Government can impose severe civil and criminal

penalties; the defendant is entitled to a full and fair

hearing before an impartial tribunal ‘at a meaningful

time and in a meaningful manner.’” TVA v. Whitman,

336 F.3d 1236, 1258 (11th Cir. 2003) (quoting

Armstrong, 380 U.S. at 552) (emphasis added). The

Lents were denied that basic right.

California is not free to dispense with its citizens’

basic due process rights by legislative fiat. “The

Framers of the Fourteenth Amendment understood

the Due Process Clause to ensure that the states

would provide prevailing notions of ‘due process of

law’ to all persons. Due process of law limited a

legislature’s power to provide alternative judicial

procedures[.]” Chapman & McConnell, Due Process as

Separation of Powers, 121 Yale L. J. 1672, 1801

(2012). As Professors Chapman and McConnell

explained:

The basic idea of due process, both at the

Founding and at the time of adoption of

the Fourteenth Amendment, was that

the law of the land required each branch

of government to operate in a distinctive

manner, at least when the effect was to

guaranteed for courts could be replicated within the Executive

Branch was never more than wishful thinking.”); Lorenzo v. SEC,

872 F.3d 578, 602 (D.C. Cir. 2017) (Kavanaugh, J., dissenting)

(“Administrative adjudication of individual disputes is usually

accompanied by deferential review. . . . That agency-centric

process is in some tension with Article III of the Constitution, the

Due Process Clause of the Fifth Amendment, and the Seventh

Amendment.”).

21

deprive a person of liberty or property. .

. . The judiciary was required to

adjudicate cases in accordance with

longstanding procedures, unless the

legislature

substituted

alternative

procedures of equivalent fairness.

Id. at 1781–82.32 The Commission’s administrative

penalty process plainly fails this test.

“Fundamentally, . . . [due process] was about

securing the rule of law. It ensured that the executive

would not be able unilaterally to deprive persons

within the nation of their rights of life, liberty, or

property except as provided by common law or statute

and as adjudicated by independent judicial bodies[.]”

Id. at 1808. At the time it was ratified, the Fourteenth

Amendment was “universally understood to

guarantee individual rights of legal process that only

courts could provide.” Id. at 1727 (emphasis added).

This means that due process bars administrative

bodies from imposing quasi-criminal penalties—

whether labeled as “administrative civil penalties” or

something else—through administrative processes.

Period. Underscoring this, “[a] civil penalty was a type

of remedy at common law that could only be enforced

in courts of law.” Tull v. United States, 481 U.S. 412,

32 The Fourteenth Amendment “included a Due Process Clause

that was unambiguously aimed at the states, but otherwise

matched the language of the Fifth Amendment word for word:

‘No State shall . . . deprive any person of life, liberty, or property

without due process of law.’”32 Id. at 1726.

22

422 (1987).33 See also Sessions v. Dimaya, 138 S. Ct.

at 1224 (Gorsuch, J., concurring in part and

concurring in judgment) (“[I]n my view the weight of

the historical evidence shows that the [Due Process]

clause sought to ensure that the people’s rights are

never any less secure against governmental invasion

than they were at common law.”).

The CCC’s informal public meeting process for

imposing millions of dollars in quasi-criminal

penalties

plainly

violates

the

Fourteenth

Amendment’s guarantee of procedural due process.

Given the shocking absence of procedural protections

in the CCC’s administrative penalty scheme, as well

as the egregious due process violations that occurred

here, this case provides an ideal vehicle for this Court

to make clear that due process prohibits

administrative bodies from unilaterally depriving

persons of property except as adjudicated by

independent judicial bodies.

CONCLUSION

This Court should grant the petition.

33 See also Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665,

714–15 (2015) (Thomas, J., dissenting) (“Nineteenth-century

American jurisprudence confirms that an exercise of the judicial

power was thought to be necessary for the disposition of private,

but not public, rights.”). Cf. Nollan v. Cal. Coastal Com, 483 U.S.

825, 833 n.2 (1987) (“[T]he right to build on one’s own property—

even though its exercise can be subjected to legitimate

permitting requirements—cannot remotely be described as a

‘governmental benefit.’”).

23

Respectfully submitted,

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 17, 2021