the case on the merits, however, even on an interim basis.
Therefore, this Court cannot find that Plaintiffs have established probable success on the merits, but only that they have raised serious questions. Plaintiffs accordingly must establish that the balance of hardships tips sharply in their favor in order to prove their entitlement to preliminary injunctive relief.
This they have not done. Plaintiffs make out a showing that, to the extent the term limits are unconstitutional, their constitutional rights will be impinged prior to trial in this matter; they have thus shown the possibility of irreparable harm. However, Plaintiffs have not established that they are likely to prevail, and therefore have also failed to establish that they are likely to be irreparably injured.
In balancing hardships, the Court cannot ignore the consequences to the state of thrusting into the election a candidate whose qualification to serve may ultimately prove invalid. Nor can the Court ignore the likelihood that granting the injunction in favor of Plaintiff Bates would cause other incumbents who would otherwise be barred by the term limit to file their own actions seeking similar relief. The chaos and voter disappointment which could result from an improvidently granted order weighs against granting a preliminary showing on less than a showing that Plaintiffs are likely to prevail.
The Court must also take into account the fact that Plaintiffs have created the situation which they argue necessitates preliminary injunctive relief by their own delay in bringing this action. Plaintiff Bates, for example, has known since November 6, 1990 that, absent another constitutional amendment or judicial action invalidating Proposition 140, he would be "termed out" at the end of his current term. Plaintiff Bates further knew that he would face the November, 1995 deadline for filing his declaration of intention to be a candidate in the 1996 election. Yet Plaintiffs waited until July 20, 1995 to file this action.
The Court accordingly finds that Plaintiffs have failed to meet their burden of establishing that the balance of hardships tips strongly in their favor, and therefore have failed to demonstrate their entitlement to preliminary injunctive relief.
Application for Certification and Stay Defendants and Intervenors request that this Court certify for immediate appeal the portion of this order denying their motions to dismiss, and stay proceedings in this Court pending resolution of that appeal. The Court has the discretion to do so under 28 U.S.C. § 1292(b) only if the Court is not only "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion," but also of the opinion that "an immediate appeal from the order may materially advance the ultimate termination of the litigation."
This Court is of the opinion that the portion of this Court's order finding that Plaintiffs have stated a claim involves a controlling question of law as to which there is substantial ground for difference of opinion. However, this Court is not of the opinion that an immediate appeal would materially advance the ultimate termination of the litigation. Rather, this Court is of the opinion that this case warrants and requires development of as full an evidentiary record as possible. The Court of Appeals will then be able to give the ultimate judgment of this Court a full review.
Defendants and Intervenors argue that immediate appellate review would serve the public's interest in electoral stability, in that "so long as this case remains pending, no one will know which incumbents are eligible to run for...state office. This may have been true had this Court granted Plaintiffs' motion for preliminary injunction, and this was an important reason for denying that motion. However, in light of the denial of that motion, there is no impediment to the State of California enforcing Proposition 140 in conducting the 1996 elections, and no cause for confusion. Therefore, this application is denied.
CONCLUSION AND ORDER
For the reasons stated above, the Court rules on the matters before it as follows:
1. The motion to intervene of applicants Peter Schabarum and Lewis K. Uhler is GRANTED. The motion to intervene of applicants National Tax Limitation Committee, Lee A. Phelps and the Alliance of California Taxpayers and Involved Voters is DENIED.
2. The motion for abstention of Intervenors is DENIED.
3. The motions to dismiss of Defendant Bill Jones and of Intervenors are DENIED.
4. The motion for preliminary injunction of Plaintiffs is DENIED.
5. The application of Defendants and Intervenors for certification of the order denying their motions to dismiss and for stay of these proceedings is DENIED.
IT IS SO ORDERED.
Dated: OCT 19 1995
UNITED STATES DISTRICT JUDGE