Novel Decision With Broad Impact

Did California voters know what they were doing when they passed a groundbreaking term limits law in 1990?

Maybe not, according to an unprecedented U.S. 9th Circuit Court of Appeals decision Tuesday that found the measure was incurably defective because it did not explicitly say that its passage would mean lifetime term limits for state legislators.

“We hold, as a matter of federal law, that the state may not enforce Proposition 140’s lifetime legislative term limits because the provision imposes a severe limitation on the people’s fundamental right to elect whomever they choose and the voters were not provided with adequate notice of that limitation,” said the 2-1 decision written by Circuit Judge Stephen Reinhardt of Los Angeles.

A broad array of legal experts said the decision--which referred to both the Federalist Papers and Garrison Keillor’s “Lake Wobegon Days”--was novel and could potentially affect a host of ballot measures.

“I can’t think of any other instance where a court struck down a ballot initiative on grounds that the voters didn’t know what it said,” observed Stanford University law professor Kathleen Sullivan.

Richard Pildes, a University of Michigan law professor, said he felt that the decision reflected a growing concern with the initiative process as ballot measures--often ambiguously written--”are being used more and more to address major issues of policy.”

Despite its potential for controversy, the decision was more restrained than a lower court ruling in April by U.S. District Judge Claudia Wilken in Oakland. Wilken held that the 1990 initiative violated the U.S. Constitution by denying voters the right to cast ballots for experienced incumbents.

In considering Secretary of State Bill Jones’ appeal of Wilken’s ruling, Reinhardt and Judge Betty B. Fletcher of Seattle acknowledged at the outset that they were traversing perilous waters:

“This case involves a deep and seemingly intractable conflict between principles at the heart of our representative government: the right of the people to choose whom they please to govern them, and the authority of a state to determine the structure of its political system. It also raises the novel question whether, when the people vote on an initiative measure that, if enacted, would severely limit a fundamental constitutional right, they must be given adequate notice of the measure’s effect.”

Faced with such daunting questions, Reinhardt and Fletcher stated in their majority opinion that they would take a modest approach. They explicitly said that they were not deciding the broad question of whether California voters could approve lifetime term limits. Rather, they based their decision on narrower grounds--the inadequate explanation of the measure’s consequences.

The majority opinion stresses the distinction between two types of terms limits. Thus far, 14 states have adopted what are called consecutive term limits, in which a lawmaker after a certain period in office has to step down but after a period of time can run for that office again. Six other states, including California, have enacted lifetime limits, barring any person from serving more than six years in the Assembly or eight years in the state Senate.

But on this critical distinction, Proposition 140 was “ambiguous on its face,” the majority opinion stated. Moreover, the initiative failed to mention in its text the proponent’s ballot arguments or the state’s official descriptions of “the severe limitations to be imposed,” Reinhardt stressed. “Thus, the voters were not afforded adequate notice of the severity of the limitations involved.”

He contrasted the California measure with an Oregon term limits statute that includes a clause stating that “no person shall serve more than six years in the Oregon House of Representatives, eight years in the Oregon Senate, and twelve years in the Oregon legislative Assembly in his or her lifetime.”

Appellate Judge Joseph Sneed of San Francisco scoffed at that reasoning in a harsh dissent: “The people of California understood what they were voting for.” He noted that the text of Proposition 140 indicates that it was intended to curb “the ability of legislators to serve an unlimited number of terms” and that it stated that no senator may serve more than two terms and no member of the Assembly may serve more than three terms.

“As the majority sees it, the absence of the words ‘during a lifetime’ invalidates the proposition’s favorable vote. For the want of three words the proposition fails. To such uses is the revered 14th Amendment now employed!”

San Francisco lawyer Joseph Remcho, who represented legislators and voters who challenged Proposition 140, applauded the decision’s rationale and said he hoped that the ruling’s narrow focus will insulate it from a successful appeal. “Term limits in no other state would be affected by this decision,” Remcho said. “If the U.S. Supreme Court is looking for a test case on term limits, this is not the one,” he added.

But several legal experts, including USC law professor Erwin Chemerinsky, said they expected the ruling to face critical scrutiny for at least two reasons. First of all, Chemerinsky said, whatever the rationale, the 9th Circuit has thrown out a statute passed by California voters--always a controversial move.

Perhaps more significantly, Chemerinsky said the majority opinion’s seemingly narrow approach has embedded within it a broader decision imposing due process of law requirements on the initiative process. “That’s where this case seems to be making new law. . . . It says that if the voters are going to restrict 1st Amendment behavior--and running for office is a 1st Amendment right--then it should be explicitly clear what the voters wanted.”

Other legal experts said it was very much an open question as to whether a court ought to even be poking into that issue. UCLA law professor Daniel Lowenstein, a former member of the state’s Fair Political Practices Commission and a vocal opponent of Proposition 140, applauded Tuesday’s outcome but said he was very troubled by the rationale.

“The initiative is provided to every voter in California,” Lowenstein said. “They can read it for themselves. There are ballot arguments, newspaper stories about it, voters have a lot of ways of informing themselves. I don’t see how a court can make a determination as to whether voters are adequately informed. . . . The very basis of democracy is that voters decide how much information they need.”