Proposed Lawsuit to Overturn Term Limits Is An Affront to Voters

It is a poorly held secret that sitting legislators hate term limits more than anyone else. Once elected these politicians feel a strong sense of entitlement to keep their seats in office. Sure they will always couch their expressions in terms of "letting the voters decide" about whether they should be permitted to stay in office but this ignores the fact that the very reason voters approved Proposition 140 back in 1990 was because they accurately perceived that the powers of incumbency — and lack of rational district lines — essentially shut the door to challengers.

Last week a poll by the Public Policy Institute of California confirmed that California’s term limit law remains popular with voters by almost a two-to-one margin. This stunned current political leadership which was carefully crafting a plan to alter the law in a manner that would allow many of them to stay in office for one or more extra terms. In reaction to this bad news wiser men would have dropped the idea. But wisdom rarely comes into play when raw political power is at stake.

State Senator Ron Calderon who has been tasked by Senate Majority leader Don Perata to shepherd the term limits alteration through the political process made what should have been dismissed as a foolish passing comment. But the not-so-funny thing is he wasn’t kidding. His suggestion was that there should be a legal challenge to constitutional provisions imposing term limits.

Let’s get this straight. Prop 140 passed by a large margin in 1990 despite the fact that the opponents spent millions trying to defeat it and it remains popular today. So the answer is we’ll get judges to do our dirty work for us.

First full disclosure. This writer was retained by the proponents of Prop 140 to defend the law before the California Supreme Court when Willie Brown and company filed suit the first time. Because of its importance the suit bypassed all the lower courts and went directly to the Supreme Court. Interest was so high in the litigation that the High Court permitted the hearing to be televised — a very rare occurrence.

Senator Calderon’s suggestion that a new lawsuit be brought is so wrong on many different levels. First he suggests that because some of the Supreme Court Justices are new there might be a different result. Although theoretically possible this is very unlikely. The current makeup of the high court is somewhat different than it was in 1991 but not remarkably so. Most were appointed by Republican governors but that is probably of only marginal relevance.

The resolution of a new challenge brought 17 years after the fact would far more likely be resolved on grounds having very little to do with partisan politics. First under the doctrine of stare decisis — legalese for "let the decision stand" — courts generally need a very very compelling reason for overturning a precedent. We’re talking Brown v. Board of Education here not some political whim such as Calderon is proposing.

But here is the real reason why we can dismiss Calderon’s fanciful suggestion: There are no compelling legal reasons to overturn the law. Remember when it comes to the constitutionality of Proposition 140 we’ve "been there done that."

When Prop 140 was challenged the first time the opponents threw every conceivable legal theory against it. Six of the seven Justices rejected all of these theories. Included among these legal theories was that Prop 140 constituted a "revision" of the constitution not a mere "amendment." Revisions are wholesale changes in our organic law and the court was quickly able to dispose of this argument by noting that "the basic and fundamental structure of the Legislature as a representative branch of government is left substantially unchanged by Proposition 140."

The Court also dismissed challenges based on the single subject rule alleged impact on voting rights an alleged unlawful "Bill of Attainder" (don’t ask) and a suggestion that Proposition 140 constituted an "Impairment of Contracts." The only argument that the Court found compelling at all was with respect to the provisions limiting pensions for sitting legislators. But even here the Court said that the limitations could be implemented for all new legislators.

The point is simply this. Saying you are going to sue someone and having a legal basis for doing so are two entirely different things.

If Perata Calderon et al. wish to alter California’s term limits law they need to make their case before the California voters not the courts. Maybe if they came up with a proposal which was not so clearly a naked power grab they would have more luck.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest taxpayer organization — which is dedicated to the protection of Proposition 13 and promoting taxpayers’ rights.