Term Limits and the Courts

California Term Limit Initiative Flawed, Says Federal Court

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals on October 7, 1997, struck down California's term limits law, saying that the 1990 voter initiative that created the law failed "to provide adequate notice to voters that it would severely burden the people's fundamental rights" by imposing a lifetime ban on running for office after a legislator has reached the term limit. The decision affirms the April, 1997, decision of a U.S. District Court but does not take a position on whether a state can impose lifetime ban when proper notice about the intent of the law is provided. "We affirm the judgment, but not the rationale, of the district court. We do not decide whether a state may adopt lifetime term limits for its legislators without violating the Constitution," says Judge Reinhardt. Secretary of State Bill Jones has appealed the decision to the U.S. Supreme Court. Some analysts speculate that the Supreme Court may decline to hear this appeal due to the technical focus of the decision. For more information on the case or for a copy of the decision, contact Jennie Drage Bowserat NCSL's Denver office.

Federal Appeals Court Reversal Upholds California Term Limits

December 1997.  In a 9-2 decision, a special panel of the U.S. 9th Circuit Court of Appeals upheld a 1990 California initiative that imposed a lifetime ban on running for the legislature after a legislator has served two three-year terms in the Assembly or two four-year terms in the Senate.

The 11-judge panel's decision, released Dec.19, reversed a 2-1 decision in October by the same appeals court. The majority opinion, by Judge David Thompson, held that the limits approved by voters in 1990 were "not severe," and rejected arguments that they should be overturned because the lifetime ban was unconstitutional.

"California voters apparently perceived lifetime term limits for elected state officials as a means to promote democracy by opening up the political process and restoring competitive elections. This was their choice to make," Thompson wrote.

The California term limits case has run a tortuous course, beginning in 1991 when the state Supreme Court upheld the law while interpreting its restrictions as a lifetime ban. Then in April, 1997, a U.S. District Court judge struck down the law on the grounds that it violated the constitutional rights of voting and association under the 1st and 14th amendments. That decision was appealed to the 9th Circuit and in October a three-judge panel upheld the lower court decision, but on the grounds that the law failed "to provide adequate notice to voters that it would severely burden the people's fundamental rights" by imposing a lifetime ban. In November, however, the full appeals court voted to rehear the case and a special 11-judge panel was named.

The 9th Circuit's December decision is expected to be appealed to the U.S. Supreme Court, but some observers are skeptical that the high court will hear the case. "When you have nine federal appellate judges coming down on that side it isn't likely to go much further," a Michigan legislative attorney concluded.

The California litigation has been watched closely in other term limited states, especially those with lifetime bans similar to California's: Arkansas, Michigan, Missouri, Nevada, Oklahoma and Oregon.

Oregon's term limits law was ruled unconstitutional Dec. 16 by a federal judge in that state. In his decision on Oregon's law, U.S. Magistrate Tom Coffin relied heavily on the earlier rulings involving California's term limits statute. Following the most recent 9th Circuit decision upholding California's law, however, Judge Coffin vacated his opinion that Oregon's term limits law was unconstitutional. That means, in effect, that unless the U.S. Supreme Court overturns the 9th Circuit decision before the March filing deadline for Oregon's 1998 elections--an unlikely secnario--24 Oregon legislators cannot run for re-election to their current seats.

U.S. Supreme Court on California Term Limits

March 1998. The U.S. Supreme Court today refused to hear a challenge to California's term limits law. The law, passed by California voters in 1990, limits state Assembly members to three two-year terms and state senators to two four-year terms, and bars lawmakers who reach the limit from ever running again.

Without commenting, the court refused to hear arguments by state legislators and citizens who claimed that the law violates the rights of California voters to support their chosen candidates. The appeal also argued that voters were not aware when they voted in favor of the measure that they were approving a lifetime ban.

California's term limits law has had a complicated run through the courts. It was first challenged in federal court in April 1997, when a judge ruled its lifetime restrictions unconstitutional. This judgment was affirmed by a three-judge panel of the 9th U.S. Circuit Court in Oct. 1997, but for a different reason. The panel said that the initiative approved in 1990 was unconstitutional because it did not clearly stipulate that it would impose a lifetime ban. Both decisions were reversed by the full 9th Circuit court in Dec. 1997, which ruled that the lifetime limits were "not severe," and that California voters knew and fully understood what they were voting on. 

In refusing to hear this case, the Supreme Court has not ruled on the merits of California's term limits law, and the ruling sets no national precedent. At the same time, it is a victory for term limits supporters.

Colorado "Scarlet Letter" Provision Found Unconstitutional

On January 20, 1998, a unanimous Colorado Supreme Court ruled against a voter approved constitutional amendment that directed state and congressional representatives to support a term limits amendment to the U.S. Constitution. The overturned Colorado provision, known as Amendment 12, also instructed non-incumbent candidates to sign a pledge to support term limits. Legislators or candidates who failed to follow these directives would be identified on primary and general election ballots with the words "disregarded voter instructions on term limits" or "declined to take pledge to support term limits" next to their names. In its unanimous ruling, the state's Supreme Court said, "Our holding should not be read as a condemnation of the congressional term limits. Instead, we conclude that the manner in which Amendment 12 seeks to accomplish that objective violates Article V of the United States Constitution because it attempts to usurp our elected representatives' exclusive authority to amend the United States Constitution using explicit mandate and coercion. By completely taking away our elected representatives' discretion in fulfilling this constitutional duty, Amendment 12 runs contrary to the principle of representative government." Colorado's Amendment 12 is similar to measures passed in AL, AR, ID, ME, MO, NE, NV and WY.

Michigan Term Limits Upheld

The federal District Court in Michigan ruled on February 5, 1998, that the 1992 term limits amendment to the Michigan Constitution does not violate the U.S. Constitution. The amendment sets lifetime limits of two four-year terms for the offices of governor, secretary of state, attorney general, and members of the Senate, and three two-year terms for members of the House. The term limits will affect 64 members of the House this election year. State senators and statewide elected officers won't be affected by the limits until 2002.

The court concluded that while term limits do slightly narrow the field of candidates, they do not prevent voters from electing candidates who share their views. Nor do term limits discriminate against minority or inner-city voters, since they apply to officeholders in every district. The ruling cited a U.S. Court of Appeals decision which upheld an Ohio ban on elected judges over the age of 70, as well as a decision of the 11th Circuit Court of Appeals in California concluding that a state ballot initiative may be overturned only if ballot language worked "a patent and fundamental unfairness" on voters. The Michigan term limits amendment, the court said, "imposes an insubstantial, content neutral and nondiscriminatory burden on the voting rights of plaintiffs."

The group Citizens for Legislative Choice plans to file an appeal with the U.S. 6th Circuit Court of Appeals.

Missouri "Scarlet Letter" Provision Found Unconstitutional

A federal judge ruled on February 18, 1998, that Missouri's term limits amendment is unconstitutional. The amendment approved by 58% of Missouri voters in 1996 is similar to measures approved in other states, including the Colorado "Scarlet Letter" provision which was overturned by the Colorado Supreme Court last month.

The Missouri amendment required ballots to list Congressional candidates' stands on term limits. Incumbent candidates who failed to support Congressional term limits would have the words "disregarded voters' instructions on term limits" printed next to their names. "Declined to pledge to support term limits" would appear next to the names of non-incumbent candidates who refused to take a term limits pledge.

In his ruling, U.S. District Judge D. Brook Bartlett stated that the amendment imposes unconstitutional qualifications on candidates, violates the First Amendment right to free speech, and wrongly shifts legislative powers from Congress and state lawmakers to citizens.

Missouri's attorney general filed an appeal with the 8th U.S. Circuit Court of Appeals, hoping to reverse the ruling in time for the term limits amendment to take effect when the candidate filing period began at 8 a.m. February 24. The full court decided February 23rd against hearing the case, which left candidates free to file for office without stating their view on term limits.

Washington's Term Limits Unconstitutional

On January 8, 1998, the Washington Supreme Court ruled 6-2 (with one justice not participating) that the state's term limits law is unconstitutional, overturning an initiative approved by voters in 1992. Initiative 573 created a statute limiting terms for state legislators, the lieutenant governor and the governor. The Court ruled that term limits constitute a qualification for office and that "A statute, whether adopted by the Legislature or by the people, may not add qualifications for state constitutional officers where the Constitution sets those qualifications." The Court asserted that term limits only could be enacted "through the process for constitutional amendment" set out in the Washington Constitution. Constitutional amendments in Washington require two-thirds votes in both houses of the Legislature and approval by the people.