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April 23, 1997

BILL JONES, Secretary of State of the State of California; BRADLEY J. CLARK, Alameda County Registrar of Voters; and CONNY McCORMACK, Los Angeles County Registrar of Voters, Defendants. PETER F. SCHABARUM and LEWIS K. UHLER, Intervenors.

The opinion of the court was delivered by: WILKEN


 Do the lifetime legislative term limits provisions of the California Constitution, as enacted by Proposition 140 in 1990, violate the United States Constitution? This question implicates some of the core values of our American system of government: majority rule, minority protections, the right to vote, the autonomy of the States, and the role of the federal courts in upholding constitutional principles.

 Majority rule is the basic assumption of American government The legitimacy of the democratic process, however, depends upon the ability of voters to express their political preferences at the ballot box. "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government" Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). The Constitution provides a number of safeguards to protect the right of the people to vote for their representatives. Some of these safeguards are explicit, such as the right to vote regardless of race or gender. The United States Supreme Court has found others to be implicit, such as the principle of one person, one vote. The Supreme Court has observed that congressional term limits "violate that 'fundamental principle of our representative democracy . . . that the people should choose whom they please to govern them.'" U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S. Ct. 1842, 1850, 1862, 131 L. Ed. 2d 881 (1995) (quoting Powell v. McCormack, 395 U.S. 486, 547, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969)).

 The United States Supreme Court has held that a State may impose reasonable, nondiscriminatory restrictions on the ability of citizens to vote for the candidate of their choice when the State has an important reason for imposing those restrictions. When a State's restrictions on the ability of potential candidates to run for office impose a severe burden on voters' or candidates' First or Fourteenth Amendment rights, however, the State must establish that those restrictions are narrowly tailored to accomplish compelling State interests. Otherwise the restrictions are unconstitutional. Burdick v. Takushi, 504 U.S. 428, 434, 119 L. Ed. 2d 245, 112 S. Ct. 2059 (1992). Permissible restrictions typically require candidates to demonstrate a modicum of popular support or to comply with reasonable procedures meant to insure orderly elections.

 California's sovereign interest in structuring its political institutions is due substantial deference. When a State restructures its political institutions in a manner that imposes a severe burden on the ability of citizens to vote for the representatives of their choice, however, the State must provide justifications in addition to its interest in determining its own political institutions. Otherwise State institutional decisions would be immune from federal constitutional scrutiny. The State also has a substantial interest in promoting political accountability. However, at the trial of this case, the State failed to establish, as it must, that a lifetime limit on legislative service is narrowly tailored to achieve this interest. Less restrictive versions of term limits would achieve the benefits attributed to lifetime term limits while imposing significantly less severe burdens on the rights of voters. Other reforms that do not restrict the ability of voters to vote for the candidates of their choice would also achieve the benefits attributed to lifetime term limits.

 This Court does not lightly overrule the political judgment of the California electorate. However, it is the singular duty of a federal court to determine when political judgment must give way to constitutional principle. "'One's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.' A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 736-37, 12 L. Ed. 2d 632, 84 S. Ct. 1459 (1964) (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943)) (footnote omitted). When a law conflicts with the United States Constitution, it is the Constitution, not the expressed will of a majority of the voters, that must govern the Court's decision. "It is, emphatically, the province and duty of the judicial department, to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803). *fn1" Because California's extreme version of term limits imposes a severe burden on the right of its citizens to vote for candidates of their choice, and because it is not narrowly tailored to advance compelling State interests, it violates the First and Fourteenth Amendments of the United States Constitution.


 Former Assembly member Tom Bates and some of his supporters filed this lawsuit in 1995, seeking to enjoin enforcement of California's term limits so that Bates could run for reelection in 1996 to an eleventh term in the Assembly. The Court permitted the official proponents of Proposition 140, Peter Schabarum and Lewis Uhler, to intervene as Defendants. Bates v. Jones, 904 F. Supp. 1080, 1086 (N.D. Cal. 1995). *fn2" The Court denied Plaintiffs' motion for a preliminary injunction, as well as Defendant Secretary of State Bill Jones' motion to dismiss for failure to state a claim. Id. at 1098.

 In March, 1996, Defendants moved for summary judgment, and Plaintiffs moved for leave to amend their complaint by adding as new Plaintiffs Assembly members Martha Escutia and Barbara Friedman and some of their constituents. The Court denied Defendants' motion for summary judgment and granted Plaintiffs' motion for leave to amend. Order, May 30, 1996.

 Trial was conducted from October 15 to October 24, 1996. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.


 A. History of Term Limits

 The movement to impose legislative term limits is a recent phenomenon, although one with some historical precedent in the eighteenth and nineteenth centuries.

 The expectation that legislators would serve in office for a limited period of time, return to private life, and then perhaps serve again later, was widespread in colonial America. This practice was known as "rotation." Tr. 603 (Petracca). *fn3" Rotation was generally an informal social norm rather than a legal mandate, but the Frameworks of Pennsylvania and Delaware, drafted in the 1680s, explicitly required it. Tr. 604. However, no colony imposed a lifetime limit on legislative service. Tr. 609. After independence, the Articles of Confederation limited delegates to Congress to three years of service in any period of six years. U.S. Term Limits, 115 S. Ct. at 1865-66; Articles of Confederation, art. V. The bills of rights of Massachusetts, Virginia, and a few other States enunciated the principle of rotation, but did not impose specific limits on legislative service. Tr. 604, 608. Of the States, only Pennsylvania formally required legislators to leave office after a specified period of time. No State imposed a lifetime limit on legislative service. Tr. 609.

 Although the Constitutional Convention considered proposals to require members of Congress to rotate out of office, none was adopted. Tr. 89 (Fiorina); Tr. 397 (Jacobson); *fn4" U.S. Term Limits, 115 S. Ct. at 1859 & n.22.

 During most of the nineteenth century, rotation of office continued to be widely expected and practiced, but it was never formally imposed. Tr. 605 (Petracca). Especially after the presidency of Andrew Jackson, rotation came to be associated with the spoils system. It served as a device for insuring that the various elements of political coalitions all shared in the fruits of power. Tr. 90-91 (Fiorina). By the early twentieth century, however, rotation had become less prevalent. Tr. 607.

 From the colonial era through the nineteenth century, the practice of rotation of office was distinct from the modern phenomenon of legislative term limits. Most importantly, rotation did not impose lifetime limits on the length of legislative service. Tr. 609 (Petracca); Tr. 91-92 (Fiorina). As the word "rotation" Suggests, legislators were expected to serve for a period of time and then do something else, but former legislators were not barred from returning to the legislature after having taken some time off. Indeed, many nineteenth-century legislators were professional politicians. It was simply understood that one politician would not hold onto a particular office for a prolonged period of time. Tr. 92 (Fiorina). Candidates were generally not forbidden from seeking additional terms, and voters were not prevented from supporting them.

 B. Professional Legislatures and Legislative Turnover

 By the middle of the twentieth century, the ideal of a professional legislature capable of handling the complexities of modern, industrialized society and of countering executive authority largely supplanted the ideal of a citizen legislature made up of representatives who would return to private life after brief periods of legislative service. Tr. 68, 84 (Fiorina). After the Second World War, Congress and many State legislatures, including California's, became increasingly professionalized. Tr. 345 (Jacobson). Indeed, in 1966, Californians approved Proposition 1A, which institutionalized the ideal of a professional legislature. Legislators' salaries rose, legislative staffing increased, and legislative supervision of the budgetary process became more sophisticated. Tr. 97 (Fiorina).

 In the late 1980s and the 1990s, sentiment grew that legislators were becoming too secure and isolated and therefore less responsive to their constituents. As a remedy for this perceived problem, twenty-one States enacted some form of legislative term limits. Most States with term-limits provisions restrict the number of consecutive terms that legislators may serve or limit the number of years that an individual may serve as a legislator within a specified time frame. Six States other than California have imposed lifetime limits on legislative service. *fn5"

 Most courts have rejected challenges to the constitutionality of term limits for State or local legislators. *fn6"

 C. Proposition 140 and Legislature v. Eu

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. ยง 1.5. Proposition 140 restricted retirement benefits for legislators, reduced the legislature's budget, and amended section 2(a) of article IV of the California Constitution to limit senators to two four-year terms and Assembly members to three two-year terms. *fn7" It also imposed term limits on a variety of other State offices. The present lawsuit does not challenge term limits on non-legislative offices.

 On November 6, 1990, California voters approved Proposition 140 by a margin of 52.17% to 47.83%. The degree of support for Proposition 140 varied widely throughout the State. For example, in Assembly District 12, Bates' district prior to the 1992 reapportionment, 62.9% of the voters opposed the measure. In Assembly District 46, the district to which Friedman was originally elected, 59.5% of the voters voted against Proposition 140. A majority of the voters in thirty of California's eighty assembly districts voted against the initiative. In other assembly districts, of course, significant majorities supported term limits. See Supplement to Statement of Vote November 1990, Tr. Ex. 44.

 In 1991, the California legislature, a number of individual members of the legislature, and some of their constituents challenged the facial validity of Proposition 140 by filing a petition for a writ of mandate in the California Supreme Court. The California Supreme Court exercised its original jurisdiction over the petition because of the great public importance of the issues raised by the challenge. Eu, 54 Cal. 3d 492 at 500, 816 P.2d 1309, 286 Cal. Rptr. 283. The California Supreme Court evaluated the challenge to Proposition 140 on the basis of the briefs and other papers submitted by the parties and amici curiae. No trial was conducted, and no lower court examined the merits of the parties' legal or factual contentions.

 The California Supreme Court upheld most of the provisions of Proposition 140, including legislative term limits. Id. at 501. It also rejected the position advanced by the State Attorney General on behalf of the Secretary of State of California that the term limits provisions of Proposition 140 simply limited the number of consecutive terms that legislators may serve. Id. at 503. It instead held that Proposition 140 imposed a lifetime limit on service in the legislature Id. at 506.

 The California Supreme Court's holding that Proposition 140's lifetime legislative term limits provisions do not violate the United States Constitution does not bind federal courts. See Watson v. Estelle, 886 F.2d 1093, 1095 (9th Cir. 1989) (State supreme court decisions construing federal Constitution do not bind federal courts). However, its construction of the term limits provisions of Proposition 140 does. See Arizonans for Official English, 117 S. Ct. at 1074-75 (State supreme courts provide definitive constructions of State laws). This Court, therefore, may not narrowly interpret the term limits provisions of Proposition 140 to avoid its constitutional difficulties.

 D. The Parties

 Between 1977 and 1996, Plaintiff Tom Bates represented the area comprising the current 14th Assembly District. The precise borders of his district have changed with each reapportionment, but it has consistently included the city of Berkeley and adjoining neighborhoods. The district has reelected Plaintiff Bates by wide margins since the 1990 elections. In 1992, he received 85.41% of the vote in the Democratic primary and 82.14% in the general election. In 1994, he was unopposed in the primary and received 78.5% of the vote in the general election. Tr. Ex. 2. Pursuant to Article IV, section 2(a) of the California Constitution, Bates was not allowed to run in the November, 1996, election and may never again run for the California Assembly. Bates may run for other offices, including the State Senate, but he would prefer to serve in the Assembly because he is already familiar with his assembly district and with the workings of the Assembly itself. Tr. 171.

 Bates testified that term limits are detrimental to the ability of legislators to represent their constituents effectively. According to Bates, it takes time for legislators to become familiar with their own districts and to develop areas of expertise. He believes that, as legislators gain expertise, their dependence upon lobbyists and executive branch agencies diminishes. Tr. 197-98. Legislators also become more skilled in navigating the complexities of the legislative process. Coaxing bills through the legislature can take years of education and coalition building. Tr. 193, 211-12. Passage of legislation, however, is only the first Step in implementing the priorities of constituents. A reluctant executive branch can thwart legislative enactments in a variety ways, such as by providing inadequate funding. Tr. 172. According to Bates, experienced legislators are more attuned to the ways in which the executive can circumvent legislative intent and are therefore more capable of ensuring that legislative enactments are actually implemented. Finally, according to Bates, experienced legislators who are likely to remain in the legislature for a significant period of time carry greater clout in their dealings with administrative agencies because the administrators realize they will probably have to continue dealing with those legislators in the future. Tr. 182. Term limits, Bates concluded, weaken the legislature and impede the ability of the legislature to enact reforms.

 Plaintiffs Jonathan Browning, Lawrence Buchalter, Ardis Graham, Richard Lewis, Edward Lyman, Rachel Sherman, and Richard Sterling, voters in the 14th Assembly District, would have voted for Bates in 1996 if he had been a candidate. The voter Plaintiffs believe that Plaintiff Bates was an exceptional representative, who served his constituents well and was 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 as well as Bates. Some of the voter Plaintiffs testified that Bates' legislative experience was an important reason for their support and that they tend to prefer candidates with legislative experience over candidates without legislative experience. Tr. 159-60 (Buchalter); Tr. 132 (Lyman).

 At trial, she testified that during her first term she spent much of her time learning the legislative process. From her observation, legislators serving their final term became less effective because people dealing with them knew that they would soon be gone. She therefore fears that term limits will strengthen lobbyists and the executive branch at the expense of the legislature. Tr. 465-66. She also believes that term limits impede the formation of experienced minority leadership. Tr. 483.

 Plaintiffs Sylvia Hernandez, Claudia Navar, and Ana Rosa Pena are voters in the 50th District who have voted for Escutia in the past, planned to vote for her in 1996, and would like to have the opportunity to vote to reelect her to the Assembly in 1998. Plaintiff Hernandez testified that she supports Escutia not only because of her stances on important political issues such as immigration, but also because of personal characteristics such as determination, commitment, and her approach to problem solving. Tr. 271. Hernandez believes that Escutia has become a more effective legislator over time. Tr. 274.

 Plaintiff Barbara Friedman was elected to represent the 46th Assembly District in Los Angeles County at a special election on July 30, 1991. Since reapportionment, she has represented the 40th Assembly District, also in Los Angeles County. She received 15.99% of the vote in the 1991 special primary election and 72.54% in the special run-off election. She received 71.26% of the vote in the 1992 Democratic primary and 57.83% in the general election. In 1994, she was unopposed in the Democratic primary and garnered 57.92% of the vote in the general election. Tr. Ex. 28. Term limits prevented her from running for reelection in 1996.

 Friedman opposes term limits because they do not take into account the time it takes to master the legislative process, to become familiar with one's assembly district, and to train staff. Tr. 29-32. She believes that term limits will weaken the legislature's institutional memory and its ability to attract and retain skilled staff members. Tr. 33, 36.

 Plaintiffs Harriet Brown Sculley and Susan Zarakov live in the 40th Assembly District, have voted for Friedman in the past, and would have liked to vote for her in 1996. Plaintiff Sculley testified that she supports Friedman not only because of her political positions, but also because she likes Friedman's style, responsiveness, and accessibility. Tr. 9-10. She believes that Friedman became a more effective representative in Sacramento the longer she served there. It was important for Sculley that Friedman represented her in the Assembly rather than at some other level of government because Assembly members can more easily represent community interests than, for example, State senators. Finally, Sculley testified that she prefers to vote for candidates with legislative experience rather than for inexperienced candidates. Tr. 15.


 I. The Legal Standard

 The parties agree that the test set forth in Anderson v. Celebrezze, 460 U.S. 780, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983), and explained in Burdick v. Takushi, 504 U.S. 428, 119 L. Ed. 2d 245, 112 S. Ct. 2059 (1992), is the proper standard to apply. The Anderson-Burdick test evolved as the Supreme Court has considered the significance to assign to the First and Fourteenth Amendment rights implicated in "ballot access" cases, that is, challenges to laws governing the procedures and eligibility requirements for political parties or candidates to appear on ballots. See, e.g., Burdick, 504 U.S. 428, 119 L. Ed. 2d 245, 112 S. Ct. 2059 (upholding State's refusal to allow write-in votes); Norman v. Reed, 502 U.S. 279, 116 L. Ed. 2d 711, 112 S. Ct. 698 (1992) (striking down requirement that small political parties gather large number of signatures to appear on ballot for certain local elections); Munro v. Socialist Workers Party, 479 U.S. 189, 93 L. Ed. 2d 499, 107 S. Ct. 533 (1986) (upholding requirement that third party candidates receive 1% of primary vote in order to appear on general election ballot); Anderson, 460 U.S. 780, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (striking down early filing deadline for third party candidates).

 When determining the constitutionality of candidate eligibility requirements, a court

must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only ...

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