Panel Hears Arguments on California’s Term Limits

A special 11-judge panel grilled attorneys Thursday about the constitutionality of California’s law limiting the terms of state legislators.

The U.S. 9th Circuit Court of Appeals convened the 11-judge en banc panel after a three-judge panel concluded in October that the state’s 1990 initiative imposing term limits was unconstitutional.

That panel ruled on narrow grounds that voters weren’t explicitly told that veteran legislators would be banned for life from seeking their old seats.

The arguments Thursday were a prelude to the appellate court’s final decision in a case that will shape California politics next year and beyond. A ruling could be issued by year’s end.

If term limits are affirmed, 27 legislators will be forced from office next year, including the two leaders of the Legislature, Senate President Pro Tem Bill Lockyer (D-Hayward) and Assembly Speaker Cruz Bustamante (D-Fresno).

The 11-judge panel includes six jurists named by Democratic presidents and five by Republican presidents, and questioning generally fell along partisan lines. Republican appointees asked more pointed questions of term limits foes, and Democratic appointees focused on term limits backers.

Term limits supporters maintain that the 1990 initiative was necessary to limit the power of incumbency and force veterans to give up their seats.

Attorney Joe Remcho, representing former legislators challenging term limits, contended that California’s version goes too far by banning legislators for life from seeking their old seats once they have served their terms--two four-year stints for state senators and three two-year terms for Assembly members.

Some lesser means could have achieved the same goal, Remcho said, though he maintained that all forms of term limits are undemocratic because they deny the electorate the right to vote for experienced candidates.

“This case comes down to one question--is it necessary?” he said as he opened his argument.

Judge Andrew Kleinfeld, an appointee of President George Bush, said he didn’t understand where federal judges derive the power to conclude that voters overreached their authority by imposing term limits.

“I can’t find the part of the Constitution that is violated,” Kleinfeld said, spending much of Remcho’s allotted 30 minutes grilling the San Francisco attorney.

The judge demanded to know why Californians cannot limit legislative terms and impose a lifetime ban on their return to the Legislature. Other state laws, he noted, require that candidates for such office be citizens, be over age 26 and have no felony convictions.

Each instance, Remcho said, “was something very different.”

He argued the case on behalf of former Assemblyman Tom Bates, a Berkeley Democrat who was forced from office last year. Bates is leading more than two dozen other past and current lawmakers in the federal challenge.

“Mr. Bates could get 1 million signatures” supporting his candidacy, Remcho said. He could change parties, and move to a new district. But because he served his terms, “there is nothing he can do” to seek reelection.

Judge Stephen Trott, appointed by President Ronald Reagan, asked Remcho why California voters couldn’t impose term limits with the lifetime ban, when the 22nd Amendment prohibits presidents from serving more than two terms.

Remcho replied that the 22nd Amendment was in a separate category, much different from California’s version of term limits.

Arguing for Secretary of State Bill Jones in defense of California’s term limit law, Harvard law professor Einer Elhauge called the right of the people to shape their own government a cornerstone of the U.S. system.

He acknowledged that the initiative was ambiguous on the question of whether it imposed a lifetime ban on lawmakers--the point cited by the earlier panel in striking down term limits.

But Elhauge noted that the California Supreme Court settled that question in 1991 when it concluded that Proposition 140 imposed such a prohibition and that it was constitutional.

“Voters have a right to vote for ambiguous measures if they choose,” Elhauge said.

Judge Michael Hawkins, appointed by President Clinton, turned to the broader question raised by the case and asked Deborah La Fetra, who also is defending term limits, whether states could ban all lawyers from seeking office.

“It would have to have a compelling interest,” said La Fetra, of the Pacific Legal Foundation.

When Hawkins pressed the issue, she called it hypothetical. Term limits were needed, she said, to remove longtime incumbents.

“There was no other way to get them out office,” La Fetra said.

“Some people,” replied Hawkins, “feel that way about lawyers.”