Judge Questions Constitutionality of State Term Limits : Courts: Remarks come during assemblyman’s suit against Prop. 140. But the federal jurist is reluctant to issue ruling that would cause chaos in 1996 elections.

In a new challenge to term limits, a federal judge sharply questioned the constitutionality of California’s term limit law Tuesday, but appeared to be hesitant to throw the 1996 elections into disarray by letting one veteran assemblyman seek reelection next year.

U.S. District Judge Claudia Wilken said she was especially troubled by California’s lifetime ban on candidacies by incumbents who have served more than three terms in the Assembly or more than two terms in the Senate.

“That, to me, is the most difficult point,” Wilken said.

Wilken made the comments as she heard arguments in a suit by Assemblyman Tom Bates (D-Berkeley) challenging Proposition 140, the 1990 initiative that imposed term limits on the Legislature. Bates says Proposition 140 violates his 1st Amendment rights and the rights of his constituents to vote for the candidate of their choice.

Wilken gave a boost to Bates--and other incumbent legislators who oppose term limits--by turning down a plea by term-limit supporters that Bates’ lawsuit be dismissed.

Wilken said that although the California Supreme Court upheld the term-limit initiative in 1991, the federal courts can review the case anew, specifically scrutinizing the issue of whether the initiative’s lifetime ban on running for more than three Assembly terms is a 1st Amendment violation.

Bates is asking that Wilken issue an injunction permitting him to take out candidacy papers by the Nov. 29 filing deadline, and run for an 11th term next year.

Wilken’s ruling would initially apply only to Bates and the 14th Assembly District, which includes in Berkeley.

But because of the term-limit initiative, more than two dozen legislators of both parties must leave office next year, and several undoubtedly would scramble to courts to obtain similar rulings.

“The political consequences here are far, far greater than Mr. Bates and the voters of the 14th Assembly District,” Deputy Atty. Gen. Karen Leaf said, representing Secretary of State Bill Jones in defense of term limits.

However, arguing that Bates would be denied his 1st Amendment rights to seek reelection, the legislator’s attorney, Joseph Remcho of San Francisco, said: “Enforcing 1st Amendment rights is, in many cases, going to cause inconvenience.”

Wilken acknowledged that such “chaos in the short term is of concern,” and told Remcho that she is “disinclined” to issue a preliminary injunction. But even if she denies the preliminary injunction, Wilken can hold a full hearing on the term-limit measure in the future.

Bates, 57, has been a consistently liberal vote on environmental and social issues. During his tenure, Bates has won passage of bills on welfare, housing, parkland and, in 1982, legislation allowing for the creation of micro-breweries.

Bates’ charge that the lifetime ban against serving more than three terms in the Assembly is unconstitutional relies in part on the recent U.S. Supreme Court case that struck down congressional term limits.

The Supreme Court concluded in May that congressional term limits were “contrary to the fundamental principle of our representative democracy . . . that people should choose whom they please to govern them.”

“The same must certainly be said of California’s legislative term limits which are even more harsh than those the Supreme Court struck down,” Bates’ lawyers, Remcho and Robin Johansen, argued in their written arguments.

The 1990 initiative was aimed at curbing the power of incumbency and special interest control of the Legislature. Indeed, it has brought about major changes in the state Capitol.

Tuesday’s argument ranged from a discussion of the Founding Fathers, who did not include term limits in the U.S. Constitution, to present-day voter outrage at politicians and a listing of state legislators who have been convicted of federal crimes in recent years.

Arguing on behalf of former Los Angeles County Supervisor Pete Schabarum, among the original proponents of the initiative, Deborah J. La Fetra of the Pacific Legal Foundation noted that voters supported Proposition 140 instead of less severe term limit measure on the same ballot.