UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TOM BATES; EDWARD H. LYMAN; ) No. 97-15864 RICHARD STERLING; ) ARDIS GRAHAM; RICHARD D. ) LEWIS; LAWRENCE J. BUCHALTER; ) D.C. No. CV-95-02638-CW JONATHAN BROWNING; RACHEL ) SHERMAN; MARTHA A. ESCUTIA; ) SYLVIA HERNANDEZ; ANA ROSA ) PENA; CLAUDIA NAVAR; ) BARBARA J. FRIEDMAN; SUSAN ) ZARAKOV; HARRIET SCULLEY, ) ) Plaintiffs-Appellants, ) ) v. ) ) BILL JONES, Secretary of the ) State of California; BRADLEY ) J. CLARK; ALAMEDA COUNTY ) REGISTRAR OF VOTERS; CONNY ) McCORMACK, Los Angeles ) County Registrar of Voters, ) ) Defendants-Appellees, ) ) and ) ) PETER F. SCHABARUM; LEWIS K. ) UHLER; LEE A. PHELPS; ) NATIONAL TAX LIMITATION ) COMMITTEE; ALLIANCE OF ) CALIFORNIA TAXPAYERS & ) INVOLVED VOTERS, ) ) Intervenors-Appellees. ) ) ) BILL JONES, Secretary of the ) No. 97-15914 State of California, ) ) Defendant-Appellant, ) D.C. No. CV-95-02638-CW and ) ) PETER F. SCHABARUM; LEWIS K. ) UHLER, ) OPINION ) Intervenors-Appellants, ) ) v. ) ) TOM BATES; EDWARD H. LYMAN; ) RICHARD D. LEWIS; LAWRENCE ) J. BUCHALTER; JONATHAN ) BROWNING; RACHEL SHERMAN, ) ) Plaintiffs-Appellees, ) ) and ) ) NATIONAL TAX LIMITATION ) COMMITTEE; ALLIANCE OF ) CALIFORNIA TAXPAYERS & ) INVOLVED VOTERS, ) ) Intervenors, ) ) v. ) ) BILL JONES, Secretary of the ) State of California, ) ) Defendant-Appellant. ) ) ) Appeals from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding Argued En Banc and Submitted November 21, 1997 San Francisco, California Filed December 19, 1997 Before: HUG, Chief Judge, BROWNING, SCHROEDER, FLETCHER, PREGERSON, THOMPSON, O'SCANNLAIN, TROTT, RYMER, KLEINFELD and HAWKINS, Circuit Judges. Opinion by Judge Thompson 2 THOMPSON, Circuit Judge: OVERVIEW A former state legislator and several of his constituents filed this action, contending the lifetime term limits in California's Proposition 140 violate their federal constitutional rights. After a trial, the district court agreed and enjoined the Proposition's enforcement. The district court stayed its injunction pending appeal. A divided three-judge panel of this court affirmed the district court. A majority of the active judges of the full court then voted to rehear the case en banc and, to accommodate the parties' interests, we agreed to rehear the case on an expedited basis. We have done so and we now reverse the district court. FACTS The facts are set forth in detail in the panel's opinion, see Jones v. Bates, 127 F.3d 839 (9th Cir. 1997). We summarize them briefly. In 1990, California voters approved Proposition 140, an initiative which imposed specific lifetime term limits for state legislators and certain state officers. The Proposition limited state senators to two terms, state assembly members to three terms, and the state governor to two terms. Cal. Const. art. IV, 2(a); art. V, 2. The Proposition also limited to two terms the Lieutenant Governor, Attorney General, Controller, Secretary of State, Treasurer, Superintendent of Public Instruction, and the members of the Board of Equalization. Id. at art. V, 11; art. 3 IX, 2; art. XII, 17. The Proposition declared that the lack of term limits created "unfair incumbent advantages" which "discourage qualified candidates from seeking public office and create a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers." Id. at art. IV, 1.5. The Proposition stated the term limits were necessary "[t]o restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office . . . ." Id. In 1991, the state legislature and several individual legislators and constituents challenged before the California Supreme Court the constitutionality of Proposition 140's term limits. On a petition for a writ of mandate, the California Supreme Court concluded that Proposition 140's lifetime term limits did not violate the plaintiffs' federal constitutional rights. See Legislature v. Eu, 816 P.2d 1309 (Cal. 1991), cert. denied,
503 U.S. 919
(1992). Thereafter, in 1995, Tom Bates, a former member of the California Assembly, and a group of his constituents filed the present action, also alleging the lifetime term limits of Proposition 140 are unconstitutional. The district court agreed. See Bates v. Jones, 958 F. Supp. 1446 (N.D. Cal. 1997). The district court determined Proposition 140 imposed a severe burden on the plaintiffs' first and fourteenth amendment rights and was not narrowly tailored to advance a compelling state interest. The district court enjoined the enforcement of Proposition 140 but stayed its injunction pending appeal. 4 A panel of this court, with Judge Sneed dissenting, affirmed the judgment of the district court on other grounds and did not reach the issue whether the term limits are constitutional. Bates, 127 F.3d at 844. This en banc review followed. DISCUSSION A. Res Judicata The State presents a strong argument that res judicata bars the plaintiffs from bringing the present action because they are bound by the decision of the California Supreme Court in Eu. We conclude, however, that California would apply its public interest exception to the res judicata doctrine and, thus, would reexamine the merits of the constitutional issue. California recognizes an exception to the doctrine of res judicata when "the public interest requires that relitigation not be foreclosed." Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248, 1256 (Cal. 1995) (quotations and citations omitted). When the issue previously litigated involves an issue of public importance and there are unusual circumstances favoring reexamination of the issue, California does not apply preclusive effect to the prior determination. See id.; City of Sacramento v. State, 785 P.2d 522, 528-29 (Cal. 1990); Arcadia Unified Sch. Dist. v. State Dep't of Educ., 825 P.2d 438, 440-42 (Cal. 1992). The current case justifies application of the public interest exception. In Eu, the California Supreme Court decided to exercise its original jurisdiction on a petition for a writ of mandate, because of the significance and importance of the legal 5 issues raised by the challenge to Proposition 140. As a result, the usual avenues of appellate review were not utilized and the California Supreme Court did not have the benefit of a lower court record. Further, when deciding Eu, there was a paucity of case law addressing the validity of term limits. Since Eu, the United States Supreme Court has decided two significant cases, shedding light on that issue, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), and Burdick v. Takushi,
504 U.S. 428
(1992). We conclude that, in the unique circumstances of this case, the public interest exception applies. We therefore consider the merits of the case. B. Notice The three-judge panel did not resolve whether Proposition 140 violates the plaintiffs' first and fourteenth amendment rights. Instead, the panel determined Proposition 140 was invalid because the Proposition and the ballot materials did not provide California voters with sufficient notice that the Proposition imposed lifetime rather than consecutive term limits. Bates, 127 F.3d at 844. We disagree, and, consistent with the California Supreme Court, we hold that the relevant ballot materials and the surrounding context provided sufficient notice making it clear that Proposition 140 required lifetime bans. The portion of the Proposition affecting legislators states: "No Senator may serve more than 2 terms" and "No member of the Assembly may serve more than 3 terms." Nowhere in the Proposition does it state that these bans are less than absolute. As Judge 6 Sneed pointed out in his dissent from the three-judge panel decision, the twenty-second amendment to the Constitution uses similar language: "[n]o person shall be elected to the office of the President more than twice . . . ." There certainly is no confusion that this language imposes a lifetime ban on the office of the President -- even though the amendment does not specifically use the term "lifetime." The surrounding circumstances also clearly indicate the voters had sufficient notice that Proposition 140 imposed lifetime bans. The opposition materials to the Proposition, which were circulated to California voters, clearly state that elected state legislators will be "banned for life" and use "lifetime ban" or similar terminology no less than eleven times. Moreover, when Proposition 140 was submitted to the voters in 1990, there were two competing initiatives on the ballot imposing term limits. In contrast to Proposition 140's lifetime ban, Proposition 131 proposed consecutive term limits. The two propositions received extensive media attention, which was heightened after the California Supreme Court issued a decision five days before the election addressing which of two propositions would govern in the event both were approved. See Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm., 799 P.2d 1220 (Cal. 1990) (specifically addressing Propositions 68 and 73). Assuming, without deciding, that a federal court may determine whether a state has given adequate notice to its voters in connection with a statewide initiative ballot measure dealing 7 with term limits on state officeholders, we hold that California's notice with regard to Proposition 140 was sufficient. C. Constitutionality of Proposition 140's Lifetime Term Limits In Burdick, the Supreme Court set forth the analysis we must apply to determine the constitutionality of Proposition 140. We must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights." Burdick,
504 U.S. at 434
(quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). If the measure in question severely burdens the plaintiffs' rights, we apply strict scrutiny review. Burdick, 504 U.S. at 434. If, however, the law "imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. (quoting Anderson,
460 U.S. at 788
). The rights which the plaintiffs seek to vindicate in this case are the right to vote for the candidate of one's choice and the asserted right of an incumbent to again run for his or her office. Proposition 140's impact on these rights is not severe. As argued by the State, term limits on state officeholders is a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose. See Burdick, 504 U.S. at 433. With regard to incumbents, they may enjoy the incumbency of a single office for a number of years, and, as 8 pointed out by the California Supreme Court, they are not precluded from running for some other state office. Most important, the lifetime term limits do not constitute a discriminatory restriction. Proposition 140 makes no distinction on the basis of the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender. Nor does the Proposition "limit[] political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status." Anderson,
460 U.S. at 793
. Proposition 140's minimal impact on the plaintiffs' rights is justified by the State's legitimate interests. As the Proposition itself states, a lack of term limits may create "unfair incumbent advantages." Long-term entrenched legislators may obtain excessive power which, in turn, may discourage other qualified candidates from running for office or may provide the incumbent with an unfair advantage in winning reelection. As the Supreme Court stated in Thornton,1/ Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. Thornton,
514 U.S. at 837
. 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. Cf. Clements v. Fashing,
457 U.S. 957, 972
(1982). We hold that Proposition 140's lifetime term limits do not violate the plaintiffs' first and fourteenth amendment rights. The judgment of the district court invalidating Proposition 140 is reversed and its injunction enjoining enforcement of the Proposition is vacated. The stay pending appeal is vacated as moot. REVERSED. 10 Counsel Einer Elhauge, Harvard Law School, Cambridge, Massachusetts; Daniel E. Lungren, California Attorney General, Sacramento, California, for defendant-appellant Bill Jones. Anthony T. Caso, Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, California, for intervenors-appellants Peter F. Schabarum, et al. Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, California, for plaintiffs-appellees Tom Bates, et al. Stephen J. Safranek, University of Detroit Mercy School of Law, Detroit, Michigan, for amicus curiae U.S. Term Limits.
___________________________FOOTNOTES 1/ As pointed out by Judge Sneed in his dissent from the three-judge panel opinion, Thornton does not provide support for the argument that Proposition 140's term limits are unconstitutional. Bates, 127 F.3d at 868 (Sneed, J., dissenting). In Thornton, the Court addressed a state's attempt to impose term limits on members of Congress. See Thornton,
514 U.S. at 783
. The case did not involve a state's amendment of its constitution to impose term limits on state officeholders.