Appellate Court Voids State Law on Term Limits

A federal appellate court struck down California’s term limits law Tuesday, using the surprising reasoning that voters didn’t realize the 1990 initiative barred legislators for life from seeking their old offices once they were forced out.

Term limit defenders vowed to appeal the decision by the U.S. 9th Circuit Court of Appeals. The U.S. Supreme Court, which already has an appeal pending before it, could announce as early as Monday whether it will take the California case.

While term limit backers denounced the ruling, an upbeat As-sembly Speaker Cruz Bustamante issued simple advice for Democrats who had been looking for other work: “Run, baby, run.”

The appellate court delayed its decision from taking effect for 21 days, permitting time for the appeal. Despite the stay, the ruling adds to the turmoil in California’s Legislature, where 27 incumbents, including leaders of both houses, would be forced from office in 1998.

The ruling is rife with implications, including:

* Legislators who were planning to jump into races for statewide offices next year may reconsider and contemplate running for reelection to their current seats in 1998.

* Senate Democrats who were gearing up their attempts to succeed Senate President Pro Tem Bill Lockyer, the most powerful Democrat in Sacramento, are putting their plans on hold.

* Term limit promoters are contemplating a new initiative for the 1998 ballot--a move that would ensure that term limits were an issue in next year’s race for governor, just as they were in 1990, when voters approved the term limit measure, Proposition 140.

* The initiative’s provision limiting the governor and other statewide officeholders to two four-year terms remains in place. So-called constitutional officers, from attorney general to treasurer, would have to bring a separate suit to run for a third term.

Gov. Pete Wilson, who says he has no plans to run for a third term, denounced the reasoning by the appeals court as a “bogus constitutional proposition” and called on the U.S. Supreme Court to resolve the case.

California Secretary of State Bill Jones, struggling to sort out term limits as he prepares to oversee next year’s election, pointed out that the appellate court ruling conflicts with the position of the state Supreme Court, which affirmed the measure in 1991.

“As the chief elections officer, it puts me in a conflict that is unacceptable and questions the very basis of states rights,” said Jones, who is defending the measure in the courts.

Jones last month asked the U.S. Supreme Court to intervene before the 9th Circuit acted--a request the high court denied. Jones’ underlying appeal is pending, however, and could result in a quick decision by the high court on whether to hear the case.

The 9th Circuit Court acted on a case brought by current and former state legislators who, under Proposition 140, could serve no more than three two-year terms in the Assembly and two four-year terms in the Senate.

As it was interpreted by the state Supreme Court in 1991, the initiative barred lawmakers for life from seeking their old offices once they were “termed out”--even though the proposition didn’t specifically refer to a lifetime prohibition.

The 9th Circuit heard an appeal of U.S. District Judge Claudia Wilken’s decision earlier this year striking down legislative term limits and concluding that the lifetime ban was unconstitutional.

But in a twist, the three-judge appellate panel in a 2-1 vote did not strike down term limits on grounds that the lifetime ban was unconstitutional. In fact, the appellate court did not decide the constitutionality of a lifetime ban.

Rather, the court concluded that the electorate never was explicitly told the initiative would impose such a ban. As a result, the court said, the initiative violated “fundamental” constitutional rights.

“Absent adequate notice, we cannot hold that the people intended severely to burden their most fundamental right, the right to vote,” the court said in an opinion by Judge Stephen Reinhardt that was joined by Judge Betty B. Fletcher. “In matters this important, the state simply must tell its citizens what they are voting on.”

The conclusion that voters didn’t know about the lifetime ban contradicted the state Supreme Court ruling that the initiative imposed the ban and that it was constitutional.

Reinhardt’s reasoning prompted a sharp dissent.

“This holding represents a remarkable intrusion by the federal judiciary into the voter initiative process in the state of California and all other states in this circuit having such a process,” Judge Joseph Sneed wrote in dissent.

“It means, at the very least,” Sneed added, “that a term limits initiative measure can become effective only when approved by the federal courts. Only then can it be determined that proper notice was given or that the lack of such notice did not affect the outcome.”

Attorney Joseph Remcho, who represented the lead plaintiff, former Assemblyman Tom Bates (D-Berkeley), and other lawmakers challenging the initiative, described the decision as “very limited to the impact of one initiative in one state.”

As a result, Remcho suggested, the high court might decide not to take the case.

“If the U.S. Supreme Court is looking for a test case on term limits, this is not the one,” Remcho said. “This decision is very limited. It tells people who draft initiatives that they better think twice before they try to pull the wool over people’s eyes.”

Defending the initiative, attorney Debra La Fetra of the Pacific Legal Foundation said that if the appellate court was attempting to limit the chance the high court would intervene, “it won’t work.”

“The U.S Supreme Court still has reason to review the case, because there are tremendous federalism issues,” La Fetra said. “A lower federal court has decided the California Supreme Court is worthless.”

The term limits case stems from the November 1990 election, when voters approved Proposition 140 by a margin of 52% to 48%, or 242,000 votes of 6.6 million cast.

California’s adoption of term limits helped ignite the movement nationally. Now, 20 other states have imposed legislative term limits, although only six others--including California--imposed lifetime bans. Several states also approved congressional term limit laws, but the U.S. Supreme Court has struck down such limits.

The initiative brought a new generation of lawmakers to Sacramento and forced out dozens of veterans, among them former Assembly Speaker Willie Brown, who dominated Democratic politics in the capital for more than a decade and was a major target of term limit backers.

Brown, now mayor of San Francisco, felt vindicated by the ruling and laughed off a question about whether he might seek his old Assembly seat, his press secretary said.

In its decision, the appellate court criticized the initiative process, a notoriously buyer-beware system, in which proponents with enough money can place virtually any issue on the ballot. Still, polls show Californians support maintaining the initiative system by a wide margin, even as they reject two-thirds of all such ballot measures.

“Before an initiative becomes law, no committee meetings are held,” the appellate court said. “No legislative analysts study the law; no floor debates occur . . . and it is far more difficult for the people to ‘reconvene’ to amend or clarify the law if a court interprets it contrary to the voters’ intent.”

The appellate court acknowledged that states may have a right to impose a term limit law that includes a lifetime ban. But the court said voters must know what they are voting on.

“Whether or not a state may lawfully adopt lifetime legislative term limits as a general matter,” the court said, “the technique it has employed here raises a serious issue of constitutional dimension: whether the voters are entitled to adequate notice that the measure, if enacted, would severely limit their fundamental rights.”

Wayne Johnson, one of the consultants who helped push Proposition 140, attacked Tuesday’s ruling as “intrusive, aggressive and overactive.” He said that although term limit backers have not decided for sure whether they will push a new measure in 1998, “nobody wants to see the clock rolled back.”

In a bit of irony, Johnson said he never believed that the 1990 initiative imposed lifetime limits, although he said “most voters presumed it included a lifetime ban.”

Whether or not the initiative contemplated such a ban, the main point of the measure was to weaken the power of incumbency by forcing entrenched officials to relinquish their seats.

“The power of incumbency takes away effective democratic choice,” Johnson said. “That was the point, to break the cycle of incumbency in which well over 90% or 95% of the incumbents were getting reelected.”

The ruling adds to the intrigue inside the Capitol, where several lawmakers were facing the end of their legislative careers, and now must rethink their future.

If the ruling holds and term limits are thrown out, Senate Democrats stand to gain the most. Nine veteran Democrats would have to leave under term limits, compared to two Republicans.

Among the biggest beneficiaries may be Lockyer, the Senate’s leader. He had been contemplating a chancy run for attorney general. Lockyer issued a statement Tuesday saying that because the decision is not final, he does not know what he will do next year.

But at least one senator, Richard Polanco (D-Los Angeles), who had eyed Lockyer’s office, said Locyker “has done a great job and as long as he is interested in remaining in that position, I would be interested in supporting him.”

Sen. Jim Brulte (R-Rancho Cucamonga) raised the possibility that Assembly Speaker Bustamante (D-Fresno) may not be quite so secure, noting “he has some very ambitious freshmen and sophomores who may have been willing to wait around until his speakership ended in 1998.”

“I wouldn’t go quietly,” Bustamante warned.

Freshman Assemblyman Don Perata (D-Oakland), who has been mentioned as a challenger, dismissed such talk, saying Assembly Democrats “will hunker down and support the present leadership to concentrate on policy and then next year on reelection.”

Times staff writers Mark Gladstone, Mark Z. Barabak, Henry Weinstein and David Savage contributed to this story.

* NOVEL RULING: A decision finding that voters were uninformed is unprecedented. A16

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Ruling’s Impact

Q: What was overturned?

A: Part of the 1990 initiative that imposed term limits. Under it, Assembly members could serve no more than three two-year terms and state senators could serve no more than two four-year terms. Term limits for statewide offices, such as governor, were not part of the decision and remain in effect.

*

Q: How many current legislators are at the end of their term limits?

A: Twenty-seven, including Democratic Assembly Speaker Cruz Bustamante and Democratic Senate President Pro Tem Bill Lockyer.

*

Q: Are they now free to run?

A: Not yet. The final decision rests with the U.S. Supreme Court, which could announce as early as Monday whether it will decide the case.

*

Q: What happens next?

A: Term limit backers plan to press an appeal to the high court, and another term limits initiative may be headed toward the ballot.