Appeals Court Hears Arguments on Term Limits

SAN FRANCISCO â€”  The contentious debate over California’s term limits law flared anew Wednesday as foes and supporters squared off before a panel of federal appellate court judges who questioned them with vigor for more than an hour.

The hearing at the U.S. 9th Circuit Court of Appeals focused on whether the law, created by the passage of Proposition 140 in 1990, violates the U.S. Constitution.

Foes insist that it does, by denying voters the right to choose experienced legislators and depriving legislators of the right to serve.

Supporters of term limits contend that limiting terms is a reasonable restriction that is needed to weaken the power of incumbents and give amateurs a political chance.

In April, U.S. District Judge Claudia Wilken sided with term limit foes, striking down the law as unconstitutional--and reviving the hopes of termed-out lawmakers who face political exile next year. But Wilken postponed her decision from taking effect to allow proponents of term limits to appeal.

On Wednesday, proponents got that chance before a three-judge panel of the 9th Circuit. In asking the judges to preserve term limits, attorney Einer Elhauge said the restrictions are neither unconstitutional nor discriminatory and have served to open up the political process to newcomers.

“Before term limits, 97% to 100% of incumbents were getting reelected,� said Elhauge, a Harvard University law professor serving as special counsel for Secretary of State Bill Jones, the main defendant in the case. Since term limits took effect, he said, the number of challengers seeking office has grown and the number of uncontested races has decreased.

But Judge Stephen R. Reinhardt, in a long exchange with Elhauge, suggested that term limits unfairly penalize incumbents--and the voters who look for experience in their representatives. Why can the state justifiably limit a veteran lawmaker’s right to seek office, and not place restrictions on other categories of individuals, such as celebrities, the wealthy or those of high intelligence, Reinhardt asked.

“What is it about incumbents that makes them somehow more dangerous than all these other people with different advantages?� Reinhardt asked.

Reinhardt also noted that term limits appear to infringe on a fundamental principle of democratic government--�the right to vote freely for the candidate of one’s choice.�

In response, Elhauge argued that the government already restricts a voter’s choice to some degree by setting qualifications for office, such as a minimum age. As for Reinhardt’s theory that incumbents are singled out for unfair treatment under term limits, he argued that incumbents are different from other candidates because they have a unique advantage stemming from their political experience and influence in the Legislature.

Joseph Remcho, the attorney representing term limit foes, also endured a spirited line of questioning, primarily from Judge Joseph T. Sneed, who appeared highly skeptical of claims that term limits tread on the rights of voters.

Sneed, considered the most conservative member of the panel, suggested that he found nothing in the U.S. Constitution or in case law to persuade him that term limits are an unacceptable infringement on people’s rights to choose their representatives.

The other two judges--Reinhardt and Betty B. Fletcher--revealed few clues about their legal conclusions. Reinhardt did say he believes that the case boils down to evaluating two conflicting positions put forth in previous cases by the U.S. Supreme Court: the right of the state to regulate its own government and the right of people to choose who they want to vote for.

“We have to reconcile two very important doctrines and decide which overrides the other,� Reinhardt said.

The ongoing legal battle has left dozens of current and former legislators adrift. If term limits are preserved, 16 members of the Assembly and 11 members of the state Senate--including Assembly Speaker Cruz Bustamante (D-Fresno) and Senate President Pro Tem Bill Lockyer (D-Hayward)--will be forced from office next year.

But if Wilken’s decision is upheld, those lawmakers might be permitted to run for reelection, along with dozens of other termed-out lawmakers who have already left office. Ultimately, experts predict that the law’s fate will rest with the U.S. Supreme Court, which has ruled that congressional term limits are unconstitutional, but has not ruled on the question of whether states can limit legislative terms.

“Everything is up in the air right now,� Jones said. “I’m optimistic we will prevail and the voters’ desire for term limits will be fulfilled. But we need a speedy decision so people can make plans.�

The suit is an outgrowth of Proposition 140, which was approved 52% to 48% with a margin of 242,000 votes out of 6.6 million cast. The law limits Assembly members to three two-year terms and state senators to two four-year terms and bars them from ever seeking their old seats again. Statewide officeholders, such as the governor, are limited to two four-year terms, but the legal challenge has no bearing on them.

The case was brought by former Assemblyman Tom Bates (D-Berkeley), who was first elected in 1976 and was forced from the lower house last year because of term limits.

Joining Bates as plaintiffs are Assemblywoman Martha Escutia (D-Bell), who is in her third term, and former Assemblywoman Barbara Friedman, who was forced out in 1996. All three are from districts where a majority of the electorate voted against term limits.

Their case marks the second major challenge to the term limits law. In 1991, the state Supreme Court rejected a challenge by the Legislature. Bates and his colleagues then filed a new suit in federal court, focusing their argument on the lifetime ban that blocks elected officials from seeking their old jobs.

Six states have such bans, but most states with term limits allow former lawmakers to serve again after a hiatus. In her ruling, Wilken concluded that the lifetime ban violates the constitutional rights of voters to vote for candidates of their choice, and the rights of seasoned lawmakers to reenter politics by seeking their old seats.