Bates v. Jones

• Citation: 904 F. Supp. 1080
• Decision Date: 19 October 1995
• Docket Number: No. C 95-2638 CW.,C 95-2638 CW.
• Court: U.S. District Court — Northern District of California
• Parties: Thomas BATES, et al., Plaintiffs, v. Bill JONES, et al., Defendants.

904 F. Supp. 1080

Thomas BATES, et al., Plaintiffs, v. Bill JONES, et al., Defendants.

No. C 95-2638 CW.

United States District Court, N.D. California.

October 19, 1995.

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Joseph Remcho, Remcho Johansen & Purcell, San Francisco, CA, for Tom Bates, Edward H. Lyman, Richard D. Lewis, Lawrence J. Buchalter, Jonathan Browning and Rachel Sherman.

Deborah J. La Fetra, Victor J. Wolski, Sacramento, CA, for Peter F. Schabarum, Lewis K. Uhler, Lee A. Phelps, National Tax Limitation Committee and Alliance of California Taxpayers & Involved Voters.

Karen Leaf, CA State Atty. General, Sacramento, CA, for Bill Jones.

Kelvin H. Booty, Jr., County of Alameda Counsel's Office, Oakland, CA, for Bradley J. Clark.

ORDER GRANTING MOTION TO INTERVENE; DENYING MOTIONS FOR ABSTENTION, TO DISMISS, AND FOR PRELIMINARY INJUNCTION; AND DENYING APPLICATION FOR CERTIFICATION FOR APPEAL AND FOR STAY

WILKEN, District Judge.

Plaintiffs' motion for preliminary injunction, Applicants for Intervention's motions to intervene, for abstention and to dismiss, and Defendant Bill Jones' motion to dismiss were heard by this Court on September 12, 1995. On September 25, 1995, Defendants and Intervenors jointly applied for an order certifying for immediate appeal any order denying their motions to dismiss and staying the proceedings in this matter pending resolution of that appeal; Plaintiffs filed written opposition to that application. Having considered the papers filed by all parties and oral argument on the motions, and good cause appearing, the Court hereby GRANTS the motion to intervene in part, DENIES the motions to dismiss and for abstention, DENIES the motion for preliminary injunction, and DENIES the application for certification and stay, for the reasons stated below.

STATEMENT OF FACTS

This action challenges California's term limits for state legislators. On November 6, 1990, California voters passed Proposition 140, which, inter alia, amended Section 2(a) of article IV of the California Constitution to provide that no state senator may serve more than two terms and no member of the state Assembly may serve more than three terms. The statement of purpose enacted by the voters is as follows:

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, 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. Applicants for Intervention Peter Schabarum and Lewis K. Uhler were official proponents of Proposition 140. Applicants for Intervention National Tax Limitation Committee (NTLC), Lee A. Phelps and the Alliance of California Taxpayers and Involved Voters (ACTIV) were also supporters of Proposition 140.

In 1991, the facial validity of Proposition 140 under California and federal constitutional law was challenged by a Petition for Writ of Mandate in the California Supreme Court. Petitioners included the Assembly of the State of California, eight individual members of the Assembly, and four voters supportive of incumbent members of the Assembly. Neither Tom Bates nor any of his constituents were parties to that action or participated in any way in the litigation. Petitioners there were represented by law firm of Remcho, Johansen & Purcell, the law firm representing Plaintiffs in the current action.

The California Supreme Court upheld the facial validity of the term limit provisions over a First and Fourteenth Amendment challenge. Legislature v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991). Petitioners unsuccessfully sought review by the United States Supreme Court. 503 U.S. 919, 112 S.Ct. 1292, 1293, 117 L.Ed.2d 516 (1992).

In a separate state court action brought by Schabarum against the California Legislature, the Legislature's cross-complaint challenged the validity of Proposition 140 as a revision, rather than amendment, of the Constitution which could not be accomplished by initiative. That action and cross-complaint were dismissed, and an appeal is pending in the California Court of Appeal for the Third Appellate District. Schabarum v. California Legislature, Docket No. 3 Civ. C020336.

Plaintiff Tom Bates has represented the 14th Assembly District since 1977. That district voted against Proposition 140 by a margin of 63% to 37%. That district has also reelected Plaintiff Bates by wide margins since the 1990 elections in which term limits were enacted: in 1992, Plaintiff Bates received 82% of the vote, and in 1994, 78.5%. Under California's term limits, Plaintiff Bates will be required to step down in December, 1996 and may never again in his life run for or serve in the California Assembly.

Plaintiff Bates seeks to run for reelection to his eleventh consecutive term of office in 1996. Plaintiffs Edward H. Lyman, Richard Sterling, Ardis Graham, Richard D. Lewis, Lawrence J. Buchalter, Jonathan Browning, and Rachel Sherman, constituents of the 14th Assembly District, seek to vote for Plaintiff Bates in that election. The voter Plaintiffs believe that Plaintiff Bates is an exceptional representative, who serves all his constituents well, and who is unusually concerned with and effective at representing the needs of low income and disabled citizens and protecting the environment. They do not believe that other candidates would represent them as effectively and well as Bates. In addition, some of the voter Plaintiffs expressly oppose term limits, not only because it interferes with their right to choose a candidate, but also because it deprives the legislature of needed expertise.

In order to participate in the election, Plaintiff Bates must file a declaration of intention by November 29, 1995. He declares that he must also begin campaigning immediately in order to compete in the primary election to be held on March 26, 1996.

DISCUSSION

Motion for Intervention

Rule 24(a) of the Federal Rules of Civil Procedure provides for intervention as of right if the application for intervention is timely, the applicant has an interest relating to the subject matter of the action, without intervention the protection of that interest may be impaired or impeded by the disposition of the action, and the interest is not adequately represented by an existing party. California ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 792 F.2d 779, 781 (9th Cir.1986).

Here there can be no question that the application is timely. However, Plaintiffs claim that Applicants for Intervention have no interest in the subject matter of this litigation.

All Applicants for Intervention claim an interest in the subject matter of this litigation as sponsors of Proposition 140 and proponents of term limits. Applicant for Intervention Schabarum further claims an interest in the subject matter of this litigation in that this litigation may affect the course of the Schabarum v. California Legislature action.

The individualized interest of official proponents of ballot initiatives in defending the validity of the enactment they sponsored is sufficient to support intervention as of right. Yniguez v. State of Arizona, 939 F.2d 727 (9th Cir.1991). "There is a virtual per se rule that the sponsors of a ballot initiative have a sufficient interest in the subject matter of litigation concerning that initiative to intervene." Id. at 733. The interest of Schabarum based on his related litigation is also sufficiently individualized. These individualized interests are distinguishable from the general interest of supporters of term limits, however. A generalized public policy interest shared by a substantial portion of the population does not confer a right to intervene. Tahoe Regional Planning Agency, 792 F.2d at 781-82. Cf. Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir.1980).

The interest of Schabarum and Uhler, as the official proponents of Proposition 140, in its continued validity could obviously be impaired in this litigation. Therefore, they are entitled to intervene as of right if their interest is not adequately represented by existing parties.

The Ninth Circuit has set forth three factors to be considered in evaluating the adequacy of representation of the intervenor's interest by an existing party: (1) whether the interests of the existing party and the intervenor are sufficiently similar that the existing party would undoubtedly make the same legal arguments as the intervenor; (2) whether the existing party is capable and willing to make such arguments; and (3) whether the intervenor would add some necessary element not covered by the existing parties to the proceedings. Blake v. Pallan, 554 F.2d 947, 954-55 (9th Cir.1977).

The burden is on the applicant to demonstrate the inadequacy of the present representation, but the burden is a light one. "The requirement of Rule 24 is satisfied if the...