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October 19, 1995

THOMAS BATES, et al., Plaintiffs,
BILL JONES, et al., Defendants.

The opinion of the court was delivered by: WILKEN


 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 (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 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.


 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 applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 30 L. Ed. 2d 686, 92 S. Ct. 630 (1972).

 Plaintiffs argue that intervention is unnecessary because the interest of intervenors will be adequately represented by Defendant Bill Jones, who, as the Secretary of State of California, will vigorously defend the validity of the California constitutional provision. The Court disagrees for two reasons.

 First, an official sponsor of a ballot initiative may be considered to add an element not covered by the government in defending the validity of the initiative in that the very act of resorting to a ballot initiative indicates a rift between the initiative's proponents and voters and their elected officials on the issue that underlies the initiative. Yniguez v. Arizona, 939 F.2d at 733. This is particularly so in the instant case, where the subject matter of the initiative was outwardly hostile to elected officials.

 In addition, the differences between the arguments of the Applicants for Intervention and Defendant Jones is demonstrated in the motions now before the Court. Applicants for Intervention move for abstention by this Court pending resolution of a state court action brought by Applicant for Intervention Schabarum against the California Legislature; Defendant Jones opposes the motion on the grounds that abstention in this matter would impair state functions. Further, although both Applicants for Intervention and Defendant Jones move for dismissal on grounds of res judicata, Applicants for Intervention move to dismiss on additional grounds not raised by Jones, including a statute of limitations argument and a standing argument.

 Accordingly, the motion for intervention is granted as to Applicants for Intervention Schabarum and Uhler. However, the motion is denied as to Applicants for Intervention Phelps, NTLC, and ACTIV on the grounds that the interest of Phelps, NTLC and ACTIV in the subject matter of the litigation is not sufficiently individualized to warrant intervention as of right. Further, their interest is so clearly represented by Intervenors Schabarum and Uhler that permissive intervention is wholly unnecessary.

 Motion for Abstention

 Having permitted Schabarum and Uhler ("Intervenors") to intervene in this action, the Court must consider their motion for abstention. It is not well taken.

 Intervenors argue that this Court should abstain in the instant action due to the pendency of the Schabarum v. California Legislature litigation under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). Under that doctrine, a federal court may abstain from exercising its jurisdiction over an issue of federal constitutional law until the highest state court has had a chance to resolve any state law issues which might obviate the need for the constitutional determination. "Pullman abstention" is an exception to the general rule that federal courts have a "virtually unflagging obligation" to exercise their jurisdiction. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).

 The issue raised by the cross-complaint in Schabarum of whether the changes enacted by Proposition 140 constituted a revision rather than amendment of the California Constitution has been decided by the California Supreme Court in Legislature v. Eu. There is accordingly no basis for the exercise of Pullman abstention in the instant case, despite the possible pendency of the issue in Schabarum, because there is no reasonable chance that a California court, in defiance of the California Supreme Court, will invalidate Proposition 140 on state constitutional grounds.

 Further, the policy of Pullman abstention to avoid unnecessary impairment of state functions and needless friction with state policies is wholly lacking where, as here, the state itself opposes abstention. To the contrary, Defendant Jones contends on behalf of the State of California that abstention in this matter would itself impair state functions and throw the 1996 elections into a state of chaos. ...

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