Court That Barred Term Limits May Reconsider Ruling

In a surprise move, a federal appellate court has indicated that it may reconsider its decision overturning California’s term limits, prompting attorneys to scramble Monday to respond with new legal filings.

The U.S. 9th Circuit Court of Appeals directed Friday that lawyers for both sides file papers by next week stating whether the court should convene a special 11-judge panel to rehear a widely criticized opinion by a three-judge panel overturning the 1990 term limits law.

The action prompted a change in plans by Secretary of State Bill Jones, who is defending term limits. Jones had planned to appeal directly to the U.S. Supreme Court.

Jones asked the appellate court--if it rehears the case--to issue an order blocking the original Oct. 7 decision from taking effect until a new decision is rendered. If the court fails to issue that stay by today, Jones said in a letter to the appeals court, he will seek review by the U.S. Supreme Court.

“If the 9th Circuit sincerely wants to hear the case . . . we expect a guarantee that a stay will be in effect,” Jones spokeswoman Beth Miller said Monday.

Under the court’s rules, a single judge on the court can request that the full court decide whether to reconsider a case. A majority of the court’s 18 active judges must agree to put a case before an 11-judge panel, called an en banc hearing.

It’s not clear from the court’s order how many judges want the en banc review.

Joseph Remcho, representing legislators who want term limits overturned, said he is concerned that a rehearing could delay a final decision, and that as a result, several “termed-out” legislators would be unable to seek their old seats in 1998.

“Anything that slows things is not good from my point of view,” Remcho said. “We’d like to get this resolved as quickly as possible.”

Facing forced retirement are both legislative leaders, Senate President Pro Tem Bill Lockyer (D-Hayward) and Assembly Speaker Cruz Bustamante (D-Fresno). In all, 27 legislators would be forced to give up their seats next year if term limits remain in effect.

On Monday, Remcho called on the appellate court to issue an order stating that term limits would not apply in the 1998 elections. Such an extraordinary order would allow the 27 legislators who otherwise would be forced from office to run again.

The case stems from a 1990 initiative that limits Assembly members to three two-year terms and senators to two four-year terms. Courts have ruled that the initiative banned legislators for life from seeking their old seats once they had been forced to relinquish them.

U.S. District Judge Claudia Wilken struck down the term limits law earlier this year, finding that the lifetime ban was unconstitutional.

Acting in the same case, the three-judge appellate court panel overturned term limits Oct. 7, but on different grounds--that voters were not explicitly told that the 1990 initiative included the lifetime ban.

The panel’s conclusion, reached on a 2-1 vote, appears to conflict with a decision issued by a separate panel of 9th Circuit judges in July, said attorney Deborah La Fetra of the Pacific Legal Foundation, which is defending term limits.

Acting in a Nevada case, the court held in the July case that a state is not obligated to inform all people affected by major changes in laws of various implications.

Calling the court’s order requesting briefs on a possible rehearing “very significant,” La Fetra said: “It’s very encouraging that the 9th Circuit would like to get itself straightened out.”