127 F.3d 839 (9th Cir. 1997), 97-15914, Jones v. Bates

Docket Nº:97-15914.
Citation:127 F.3d 839
Party Name:D.A.R. 12,688 Bill JONES, Secretary of the State of California, Defendant-Appellant, and Peter F. Schabarum; Lewis K. Uhler, Intervenors-Appellants, v. Tom BATES; Edward H. Lyman; Richard D. Lewis; Lawrence J. Buchalter; Jonathan Browning; Rachel Sherman, Plaintiffs-Appellees, and NATIONAL TAX LIMITATION COMMITTEE; Alliance of California Taxpayers
Case Date:October 07, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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127 F.3d 839 (9th Cir. 1997)

D.A.R. 12,688

Bill JONES, Secretary of the State of California, Defendant-Appellant,


Peter F. Schabarum; Lewis K. Uhler, Intervenors-Appellants,


Tom BATES; Edward H. Lyman; Richard D. Lewis; Lawrence J.

Buchalter; Jonathan Browning; Rachel Sherman,




Taxpayers & Involved Voters, Intervenors,


Bill JONES, Secretary of the State of California, Defendant-Appellant.

No. 97-15914.

United States Court of Appeals, Ninth Circuit

October 7, 1997

Argued and Submitted Aug. 7, 1997.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Sneed, Circuit Judge, dissented and filed a separate opinion.

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Einer Elhauge, Harvard Law School, Cambridge, MA; Daniel E. Lungren, California Attorney General, Sacramento, CA, for defendant-appellant Bill Jones.

Anthony T. Caso, Pacific Legal Foundation, Sacramento, CA, for intervenors-appellants Peter F. Schabarum, et al.

Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, CA, for plaintiffs-appellees Tom Bates et al.

Stephen J. Safranek, University of Detroit Mercy School of Law, Detroit, MI, for amicus curiae U.S. Term Limits.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. 95-CV-02638-CW.

Before: SNEED, FLETCHER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

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.

In 1990, by a narrow margin, California voters passed Proposition 140, which, as construed by the California Supreme Court, amends the California Constitution to impose a lifetime limit on the number of terms that an individual may serve in state legislative office. The plaintiffs in this case--who consist

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of former state legislators who are permanently barred by Proposition 140 from ever seeking re-election to the house in which they served, and residents of their respective districts who can never again vote to re-elect state legislators barred by Proposition 140--together allege that Proposition 140's lifetime term limits impose an unconstitutional burden on their fundamental rights of voting and association under the First and Fourteenth Amendments. The district court agreed and invalidated the provision.

We affirm the judgment, but not the rationale, of the district court. We do not decide whether a state may adopt lifetime term limits for its legislators without violating the Constitution. We recognize that the state has a compelling interest as a sovereign in choosing the structure of its institutions and the qualifications of its officials--an interest that may suffice to render lifetime term limits constitutional, although we do not decide that question here. Instead, we invalidate the challenged lifetime ban because we hold as a matter of federal constitutional law that a state initiative measure cannot impose a severe limitation on the people's fundamental rights when the issue of whether to impose such a limitation on those rights is put to the voters in a measure that is ambiguous on its face and that fails to mention in its text, the proponents' ballot arguments, or the state's official descriptions, the severe limitation to be imposed. Neither Proposition 140, the proponents' ballot arguments, nor the material prepared by the state mentioned "lifetime" term limits; thus, the voters were not afforded adequate notice of the severity of the limitation involved.


On November 6, 1990, California voters narrowly passed Proposition 140, which amended the California Constitution to limit the number of terms that individuals may serve in certain state offices, to curtail the retirement benefits of state legislators, and to reduce or eliminate legislative staff and support services. Cal. Const. art. IV, § 2(a) (term limits for state legislators); id. § 4.5 (retirement benefits for state legislators); id. § 7.5 (operating expenses of legislature and compensation of legislature members and staff); see also id. art. V, § 2 (gubernatorial term limits); id. art. V, § 11, art. IX, § 2, art. XIII, § 17 (term limits for other state executive officials). Although other state offices were affected, the thrust of the measure was clearly aimed at adopting term limits for the state legislature. 1

There are two kinds of term limits: consecutive term limits and lifetime term limits. Consecutive term limits restrict the number of terms that a representative may serve in a row. Under this approach, which is employed by a majority of the states that have adopted legislative term limits, 2 legislators generally may return to office after a reasonable hiatus. While consecutive term limits force successful incumbents to step down from office after some fixed period of service (usually after two or three terms), they allow voters to re-elect those same persons at a future time, when they no longer have the advantage of incumbency. Lifetime term limits, on the other hand, are far more restrictive. Once a legislator has served a given number of terms as a senator or assemblyman, voters are barred for life from ever again electing that person to such office.

California proposed and adopted its term limits by means of the state's initiative process. See Cal. Elec.Code § 9000 et seq.; § 13280-82. Because Proposition 140 was a proposed constitutional amendment, the proponents were required to present to the Secretary of State a petition signed by eight

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percent of the state's registered voters. See id. § 9035. After doing so, the state prepared a "ballot pamphlet," which was sent to all registered voters. See id. § 9094. The ballot pamphlet contained a complete copy of the measure; an official title and summary of the Proposition prepared by the Attorney General; an official analysis prepared by the Legislative Analyst; and "ballot arguments" by the proponents and opponents for and against the measure. See id. §§ 9084-86. 3

The official title of Proposition 140 as it appeared in the ballot pamphlet read: "Limits of Terms of Office, Legislators' Retirement, Legislative Operating Costs. Initiative Constitutional Amendment." The Proposition itself commenced with the following preamble, which is part of the constitutional amendment:

The people find and declare that the Founding Fathers established a system of representative government based upon free, fair, and competitive elections. The increased concentration of political power in the hands of incumbent representatives has made our electoral system less free, less competitive, and less representative.

The ability of legislators to serve unlimited number of terms [sic], to establish their own retirement system, and to pay for staff and support services at state expense contribute heavily to the extremely high number of incumbents who are reelected. These unfair incumbent advantages discourage qualified candidates from seeking public office and create a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers. These career politicians become representatives of the bureaucracy, rather than of the people whom they are elected to represent.

To restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office, the people find and declare that the powers of incumbency must be limited. Retirement benefits must be restricted, state-financed incumbent staff and support services limited, and limitations placed upon the number of terms which may be served.

Cal. Const., art. IV, § 1.5 (as amended). The Proposition, in relevant part, proposed to amend the California constitutional provision governing legislators by adding the following language:

No Senator may serve more than 2 terms.

... No member of the Assembly may serve more than 3 terms.

Cal. Const., art. IV, § 2(a) (as amended) (emphasis added). Nowhere in the initiative, the title and summary, the Legislative Analyst's statement, or the proponents' ballot arguments, was there any mention of lifetime limits. 4

On the November 6, 1990 general election, the measure was put to a statewide vote. The following language appeared on the ballot: 5

TERMS OF OFFICE. LEGISLATURE. INITIATIVE CONSTITUTIONAL AMENDMENT. Limits: terms for specified state elected officials, legislators' retirement, pensions. Legislature's operating costs.... Yes___. No___.

The measure passed by a statewide margin of 52.17% to 47.83%.

In 1991, a group of petitioners consisting of the California Senate and Assembly, a number of individual legislators, and individual constituents challenged the validity of Proposition 140 directly in the California Supreme Court by way of a petition for writ of mandate. Legislature v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991). Neither Tom Bates nor any of his constituents

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was a party to the Eu action. Because the California Supreme Court chose to exercise its original jurisdiction, no trial was conducted, and no lower court examined the merits of the parties' legal and factual contentions. Id. at 500, 286 Cal.Rptr. 283, 816 P.2d 1309.


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