131 F.3d 843 (9th Cir. 1997), 97-15864, Bates v. Jones

Docket Nº:97-15864, 97-15914.
Citation:131 F.3d 843
Party Name:D.A.R. 15,471 Tom BATES; Edward H. Lyman; Richard Sterling; Ardis Graham; Richard D. Lewis; Lawrence J. Buchalter; Jonathan Browning; Rachel Sherman; Martha A. Escutia; Sylvia Hernandez; Ana Rosa Pena; Claudia Navar; Barbara J. Friedman; Susan Zarakov; Harriet Sculley, Plaintiffs-Appellants, v. Bill JONES, Secretary of the State of California; Brad
Case Date:December 19, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 843

131 F.3d 843 (9th Cir. 1997)

D.A.R. 15,471

Tom BATES; Edward H. Lyman; Richard Sterling; Ardis

Graham; Richard D. Lewis; Lawrence J. Buchalter; Jonathan

Browning; Rachel Sherman; Martha A. Escutia; Sylvia

Hernandez; Ana Rosa Pena; Claudia Navar; Barbara J.

Friedman; Susan Zarakov; Harriet Sculley, Plaintiffs-Appellants,


Bill JONES, Secretary of the State of California; Bradley

J. Clark; Alameda County Registrar of Voters;

Conny McCormack, Los Angeles County

Registrar of Voters,



Peter F. Schabarum; Lewis K. Uhler; Lee A. Phelps;

National Tax Limitation Committee; Alliance of

California Taxpayers & Involved Voters,


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,



National Tax Limitation Committee; Alliance of California

Taxpayers & Involved Voters, Intervenors,


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

No. 97-15864, 97-15914.

United States Court of Appeals, Ninth Circuit

December 19, 1997

Argued En Banc and Submitted Nov. 21, 1997.

Page 844

Professor Einer Elhauge, Harvard Law School, Cambridge, MA; James F. Sweeney, Chief Counsel, Secretary of State of Cal., Thomas S. Knox, Peter D. Lemmon, Knox, Lemmon & Anapolsky, Sacramento, CA, for defendant-appellant Bill Jones.

Anthony T. Caso, Deborah J. La Fetra, 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.

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


DAVID R. THOMPSON, Circuit Judge:


A former state legislator and several of his constituents filed this action, contending the lifetime term limits in California's Proposition 140 violate their federal constitutional rights. After a trial, the district court agreed and enjoined the Proposition's enforcement. The district court stayed its injunction pending appeal.

A divided three-judge panel of this court affirmed the district court. A majority of the active judges of the full court then voted to rehear the case en banc and, to accommodate the parties' interests, we agreed to rehear the case on an expedited basis. We have done so and we now reverse the district court.


The facts are set forth in detail in the panel's opinion, see Jones v. Bates, 127 F.3d 839 (9th Cir.1997). We summarize them briefly.

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In 1990, California voters approved Proposition 140, an initiative which imposed specific lifetime term limits for state legislators and certain state officers. The Proposition limited state senators to two terms, state assembly members to three terms, and the state governor to two terms. Cal. Const. art. IV, § 2(a); art. V, § 2. The Proposition also limited to two terms the Lieutenant Governor, Attorney General, Controller, Secretary of State, Treasurer, Superintendent of Public Instruction, and the members of the Board of Equalization. Id. at art. V, § 11; art. IX, § 2; art. XII, § 17. The Proposition declared that the lack of term limits created "unfair incumbent advantages" which "discourage qualified candidates from seeking public office and create a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers." Id. at art. IV, § 1.5. The Proposition stated the term limits were necessary "[t]o restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office...." Id.

In 1991, the state legislature and several individual legislators and constituents challenged before the California Supreme Court the constitutionality of Proposition 140's term limits. On a petition for a writ of mandate, the California Supreme Court concluded that Proposition 140's lifetime term limits did not violate the plaintiffs' federal constitutional rights. See Legislature v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991), cert. denied, 503 U.S. 919, 112 S.Ct. 1292, 117 L.Ed.2d 516 (1992).

Thereafter, in 1995, Tom Bates, a former member of the California Assembly, and a group of his constituents filed the present action, also alleging the lifetime term limits of Proposition 140 are unconstitutional. The district court agreed. See Bates v. Jones, 958 F.Supp. 1446 (N.D.Cal.1997). The district court determined Proposition 140 imposed a severe burden on the plaintiffs' first and fourteenth amendment rights and was not narrowly tailored to advance a compelling state interest. The district court enjoined the enforcement of Proposition 140 but stayed its injunction pending appeal.

A panel of this court, with Judge Sneed dissenting, affirmed the judgment of the district court on other grounds and did not reach the issue whether the term limits are constitutional. Bates, 127 F.3d at 844. This en banc review followed.


  1. Res Judicata

    The State presents a strong argument that res judicata bars the plaintiffs from bringing the present action because they are bound by the decision of the California Supreme Court in Eu. We conclude, however, that California would apply its public interest exception to the res judicata doctrine and, thus, would reexamine the merits of the constitutional issue.

    California recognizes an exception to the doctrine of res judicata when "the public interest requires that relitigation not be foreclosed." Kopp v. Fair Political Practices Comm'n, 11 Cal.4th 607, 47 Cal.Rptr.2d 108, 115, 905 P.2d 1248, 1256 (1995) (quotations and citations omitted). When the issue previously litigated involves an issue of public importance and there are unusual circumstances favoring reexamination of the issue, California does not apply preclusive effect to the prior determination. See id.; City of Sacramento v. State, 50 Cal.3d 51, 266 Cal.Rptr. 139, 144, 785 P.2d 522, 528-29 (1990); Arcadia Unified Sch. Dist. v. State Dep't of Educ., 2 Cal.4th 251, 5 Cal.Rptr.2d 545, 546, 825 P.2d 438, 440-42 (1992).

    The current case justifies application of the public interest exception. In Eu, the California Supreme Court decided to exercise its original jurisdiction on a petition for a writ of mandate, because of the significance and importance of the legal issues raised by the challenge to Proposition 140. As a result, the usual avenues of appellate review were not utilized and the California Supreme Court did not have the benefit of a lower court record. Further, when deciding Eu, there was a paucity of case law addressing the validity of term limits. Since Eu, the United States Supreme Court has decided two significant cases, shedding light on that issue, U.S. Term Limits, Inc. v. Thornton,

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    514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). We conclude that, in the unique circumstances of this case, the public interest exception applies. We therefore consider the merits of the case.

  2. Notice

    The three-judge panel did not resolve whether Proposition 140 violates the plaintiffs' first and fourteenth amendment rights. Instead, the panel determined Proposition 140 was invalid because the Proposition and the ballot materials did not provide California voters with sufficient notice that the Proposition imposed lifetime rather than consecutive term limits. Bates, 127 F.3d at 844. We disagree, and, consistent with the California Supreme Court, we hold that the relevant ballot materials and the surrounding context provided sufficient notice making it clear that Proposition 140 required lifetime bans.

    The portion of the Proposition affecting legislators states: "No Senator may serve more than 2 terms" and "No member of the Assembly may serve more than 3 terms." Nowhere in the Proposition does it state that these bans are less than absolute. As Judge Sneed pointed out in his dissent from the three-judge panel decision, the twenty-second amendment to the Constitution uses similar language: "[n]o person shall be elected to the office of the President more than twice...." There certainly is no confusion that this language imposes a lifetime ban on the office of the President--even though the amendment does not specifically use the term "lifetime."

    The surrounding circumstances also clearly indicate the voters had sufficient notice that Proposition 140 imposed lifetime bans. The opposition materials to the Proposition, which were circulated to California voters, clearly state that elected state legislators will be "banned for life" and use "lifetime ban" or similar terminology no less than eleven times. Moreover, when Proposition 140 was submitted to the voters in 1990, there were two competing initiatives on the ballot imposing term limits. In contrast to Proposition 140's lifetime ban, Proposition 131 proposed consecutive term limits. The two propositions received extensive media attention, which was heightened after the California Supreme Court issued a decision five days before the election addressing which of two propositions would govern in the event both were approved. See Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm., 51 Cal.3d 744, 274 Cal.Rptr. 787...

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