18 Lawmakers Join Effort to Throw Out Term Limits

Pressure built Tuesday in the case challenging California’s term limit law, after 18 lawmakers joined an effort to overturn it and Secretary of State Bill Jones called on the U.S. Supreme Court to take over the matter, even as a lower court is considering it.

“I am running out of time,” Jones said Tuesday, noting that candidates can begin declaring they are running for legislative seats in December. “I have to expedite this process.”

Defending the term limits law, Jones filed an unusual petition Friday calling on the U.S. Supreme Court to intervene.

He wants the high court to take the case from the U.S. 9th Circuit Court of Appeals, even though the San Francisco-based appellate court is expected to issue its ruling soon.

Jones’ petition takes several swipes at two of the three appellate court judges--Betty Fletcher and Stephen Reinhardt--who are considering the matter, repeatedly citing a statement they made in a previous case that appears to be at odds with the high court.

Using language that is scorching for such a document, Jones’ petition also predicts that the appeals court will strike down the term limits law approved narrowly by California voters in 1990, itself an unusual statement for a litigant to make about a pending case.

“It’s a bizarre petition,” said Joseph Remcho, an attorney for Democratic lawmakers who are challenging the law and opposing Jones.

Remcho called Jones’ request to the high court “pretty presumptuous” and “virtually unheard of.” Remcho must file his answer to the high court by Friday.

A decision to strike down term limits would permit several incumbents who otherwise will be forced from office next year to run for reelection to the Senate and Assembly. It also would allow lawmakers who were “termed out” in 1994 and 1996 to seek their old seats.

The 1990 initiative, Proposition 140, limits Assembly members to three two-year terms and state senators to two four-year terms. It also bars them for life from ever seeking to return to the Legislature.

Former Assembly members Tom Bates (D-Berkeley) and Barbara Friedman (D-Los Angeles), who were forced from office in 1996, filed the original federal suit, along with Assemblywoman Martha Escutia (D-Bell). Escutia would be forced from office next year.

U.S. District Court Judge Claudia Wilken in April struck down the term limits law, finding the lifetime ban unconstitutional. But she postponed her decision from taking effect until the appeal was decided.

After Wilken’s ruling, Jones dropped Atty. Gen. Dan Lungren as the state’s lead attorney in the case and hired a new battery of lawyers for the appeal. He said Lungren concurred in the decision.

“They have chosen to use the services of a national expert,” said Lungren’s spokesman, Rob Stutzman.

One of Jones’ new lawyers is Harvard law professor Einer Elhauge, who was a clerk for the late Supreme Court Justice William J. Brennan Jr. and is viewed as an expert on term limits. Another is former California Supreme Court Justice William P. Clark, who was a top official in President Reagan’s administration.

“We wanted the most experienced team we could find,” Jones said.

Elhauge’s petition to the high court is unusually blunt in its attack on 9th Circuit Judges Reinhardt and Fletcher.

He cites a passing remark by them in a 1991 opinion that state courts should be bound by the appellate decisions of lower federal courts--a concept he says the U.S. Supreme Court has rejected and called “remarkable.”

Fletcher and Reinhardt, appointed by President Carter, are part of the court’s liberal wing. As such, they have been reversed by the U.S. Supreme Court on an array of issues, most notably on capital punishment cases.

Elhauge insisted that he was not playing on the perceived animosity between the high court and the 9th Circuit.

Jones argues that the term limits case requires immediate intervention to help ensure that California’s elections next year don’t become hopelessly bogged down in legal challenges.

He contends that a decision by the 9th Circuit striking down term limits would conflict with the California Supreme Court’s decision in 1992 that upheld the law.

In this complex situation, Jones says, he would permit incumbents to seek reelection only if they specifically joined the federal case. He argues that the California Supreme Court decision affirming term limits would apply to any lawmakers who fail to join the federal suit, and that he would be unable to place their names on the ballot.

The 9th Circuit, citing Jones’ position, took the unusual step earlier this month of sending out an invitation to legislators facing forced retirement to join the case.

Jones’ petition called the invitation a “Rube Goldberg.”

At least 18 current Democratic lawmakers and a former Democratic state senator responded on Monday, asking that the appellate court permit them to join the suit.

The 18 include the two leaders of the Legislature, Senate President Pro Tem Bill Lockyer (D-Hayward) and Assembly Speaker Cruz Bustamante (D-Fresno), both of whom would be forced from office next year under the law.

Assemblyman Curt Pringle (R-Garden Grove) asked to join the case on Tuesday, but in support of term limits. He is being represented by U.S. Term Limits, a national group. Pringle will be forced from the Assembly next year and plans to run for state controller.