Lead Opinion
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,
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,
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,
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,
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,
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 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,
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,
The portion of the Pioposition 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 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.,
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 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 plaintiffs rights.”
Burdick,
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,
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,
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,
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.
Notes
. 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,
Concurrence Opinion
concurring in the result:
I concur in the result reached by Judge Thompson for the court and, except for a threshold concern, I would agree with his sound analysis of the merits. I also join in Judge Rymer’s thoughtful discussion of the Rooker-Feldman doctrine and her analysis of res judicata. ■ I write separately for two reasons: first, to suggest the utter absence of a federal question — irrespective of the Rooker-Feldman doctrine or res judicata— and hence an additional ground for our lack of.jurisdiction to hear the case at all; and second, to respond to Judge Fletcher’s dissent in which she urges that Proposition 140 is constitutionally infirm for lack of adequate “notice” to California voters.
I
I have grave doubt that our court has jurisdiction to review this case, irrespective of Judge Rymer’s concurring opinion or Judge Schroeder’s dissent. There is compelling authority that a state’s adoption of term limits on its own government’s elected offi
In Moore v. McCartney,
The ruling in Moore has the same effect as a summary affirmance and is fully binding on all lower courts. See Mandel v. Bradley,
Moore affirmed the Maloney decision which rejected an incumbent state officeholder’s federal constitutional claim that consecutive term limits violated the Fourteenth Amendment to the Constitution. In his dissent in U.S. Term Limits, Inc. v. Thornton,
Justice Thomas was referring to laws imposed by a state on its' federal representatives, as was at issue in Thornton, not by a state on its- own officeholders. However, in support of the proposition that state-imposed term limits on federal representatives have tended to survive review without difficulty, Justice Thomas cited Moore, explaining that the Supreme Court dismissed the appeal from Maloney, “on the ground that limits on the terms of state officeholders do not even raise a substantial federal question under the First and Fourteenth Amendments.” Thornton,
For us to ignore the precedential value of Moore, we must necessarily decide that there is a constitutionally significant difference between executive and legislative term limits or between permanent and consecutive term limits. It appears from Thornton that these differences were not particularly persuasive to Justice Thomas and those joining him as he drew no such distinction in his characterization of the disposition of Moore. Further, the fact that the myriad of courts which have considered the various types of term limits
Judge Reinhardt, writing for the original panel in Jones v. Bates,
As an initial matter, Thornton does not speak at all to the question of whether limits on the terms of state officeholders raises a substantial federal question.- Thornton is concerned exclusively with the constitutionality of state-imposed term limits on federal officeholders. The Supreme Court’s decision was bottomed on the Qualifications Clause and the notion of a “national citizenship,” neither of which, of course, has any relevance to this case. See Thornton,
As to other intervening doctrinal developments, although it is true that the Supreme Court has decided noteworthy ballot access cases in the period between Moore and Bates, it is doubtful that these cases detract from Moore’s precedential value. Significantly, in no case since Moore has the Supreme Court responded so directly to the issue before us today. While subsequent cases have presented numerous peripheral ballot access issues to the Court, none has presented the question of the constitutionality of state-imposed term limits on state officeholders as squarely as Moore. For this reason alone, I remain skeptical of the failure of our court to take this case into consideration in disposing of the matter before us.-
Moreover, Moore is not inconsistent with any of the significant ballot access cases. As noted in Clements v. Fashing,
Consequently, I submit that intervening doctrinal developments in the ballot access cases have not weakened Moore’s message that term limits on state officeholders do not present a federal question. As Moore is the last word from the Supreme Court on the issue of term limits on state officeholders, we are compelled to give it appropriate weight in disposing of this case.
II
Judge Fletcher argues in her dissent that Proposition 140 is defective because the voters were not provided with “notice that they were voting on a severe limitation to their
A
The assertion that the people have a “fundamental right to vote for candidates of their choice” implicates at least two distinct, though closely-related, rights: the right to vote and the right’to run for elective office. See Lubin,
Voting has long been recognized by the Supreme Court as a “fundamental right.” See Harper v. Virginia Board of Elections,
The necessary corollary to the notion that the people have a fundamental right to vote for candidates of their choice is that there exists a constitutional right to vote for a particular candidate. It seems beyond cavil that the former cannot survive without the latter. The right to vote for a particular candidate, in turn, perforce implicates the right to stand for elective office. The district
Further, if there is a right to vote for a particular candidate, such right necessarily implicates a corresponding constitutional right to be a candidate. Judge Fletcher suggests in her dissent that “every attempt by a state to set restrictive qualifications concerning who can and who cannot serve as a candidate for elective office implicates rights that are ‘fundamental’ and requires careful scrutiny.” See infra, Judge Fletcher dissenting opinion at 868. The district court also suggested that there is a “right to run for a particular office” that requires protection akin to that afforded the right to vote. See Bates,
For the foregoing reasons, the asserted constitutional right of the people “to vote for the candidates of their choice” simply does not exist. Consequently, it is evident that no “fundamental, right” was “severely limited” by Proposition 140 and thus, the dissent’s analysis is fatally flawed.
B
As to the contention that Proposition 140’s lifetime legislative term limits must fail because the voters of California were not provided with adequate “notice” of the “severe limitation” the provision would impose on their fundamental rights, there is even less
Judge Reinhardt, writing for the original panel, held that, although the proper interpretation of Proposition 140 is purely a matter of state law, “the issue whether the people’s fundamental political rights may be severely burdened by means of an- ‘ambiguous’ initiative that ‘the average voter’ would only ‘likely’ understand is ... a question of federal law.” Bates,
Such “notice” requirement is most likely grounded in an antipathy for and distrust of the initiative process which finds support in neither the Constitution nor Supreme Court precedent. Although it has been argued that the Supreme Court reviews popular legislation more closely than legislation enacted by representatives, see Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1562-65 (1990); Mark Slonim & James H. Lowe, Comment, Judicial Review of Laws Enacted by Popular Vote, 55 Wash. L.Rev. 175, 194-96 (1979), an examination of the case law does not bear out such assertion. As noted in City of Eastlake v. Forest City Enterprises, Inc.,
To engraft a due process “notice” requirement on popular legislation is to invite the federal courts to look behind initiatives to ensure that voters were capable of understanding the potential consequences of their actions and acted accordingly. This is simply beyond our province. The Supreme Court has historically presumed that legislators are aware of the consequences of the laws which they enact and has declined to invalidate, legislation on the ground that “Congress was unaware of what it accomplished or ... was misled by the groups that appeared before it.” See United States Railroad Retirement Bd. v. Fritz,
Ill
Like Judge Thompson, I would not interfere with the will of the people of California in adopting Proposition 140; I would reach such result, however, by the route charted by Judge Rymer or Part I of the foregoing analysis. With respect, for the reasons expressed in Part II, I must fundamentally reject the view expressed by Judge Fletcher that federal courts have a writ to impose a newly-minted “notice” requirement on the voters of California.
. See e.g., League of Women Voters v. Diamond,
. There were approximately 8,867,000 Californians under the age of eighteen in 1996, the age at which the right to vote cannot be denied or abridged under the twenty-sixth amendment to the U.S. Constitution. See U.S. DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 33 (1997); U.S. CONST. amend. XXVI.
. See Tribe at 1062 ("Election-related rights display the special feature that the equality with which they are available, rather than the fact of their availability or absence, ordinarily proves decisive.”).
. Along these lines, I find no comfort in the two purported "limitations” on the so-called "notice" doctrine: that it will be applied only in cases where an initiative affects a "fundamental right" and only when said initiative imposes a "severe” limitation on that right. See infra, Judge Fletcher dissenting opinion at 15141. First, as evidenced by the assertion of a fundamental right of. the people to vote for the candidates of their choice, limiting the "notice" doctrine merely to fundamental rights will in actuality be no limitation at all. Indeed, given that the case law is replete with references to rights which are considered "fundamental,” see e.g., California Dept. of Corrections v. Morales,
. As the original panel claimed that "[pjerhaps the case that is most comparable to the one before us is Thompson v. Oklahoma,
. Skeptics, of course, will point to the decisions in Romer v. Evans,
Concurrence Opinion
concurring in the result:
I agree with Judge Thompson’s disposition of Bates’s appeal, assuming the merits are reached and that an Anderson /Burdick balancing test is required. However, I write separately for two reasons: First, to explain why I believe that the district court should not have entertained this action because it involves the same claim by related parties already considered and decided by the California Supreme Court. In effect, we are asked to review the state supreme court’s opinion that Proposition 140 is constitutional — but that’s not our right to do. Only the United States Supreme Court can overturn a decision by the highest court of a state. For a federal district court to make an independent determination of constitutionality in the face of a final state court adjudication on the same point implicates well-settled doctrines of finality, federalism, and the limits of appellate jurisdiction. Therefore, in my view, the district court lacked the authority to proceed; and in any event, should have declined to do so on grounds of res judicata.
Second, assuming that we have jurisdiction, I write separately to suggest that the state’s interest in Proposition 140 is somewhat different, and even stronger than Judge Thompson acknowledges, because the people of the State of California exercised their own constitutional right to choose the form of their representation in the legislative branch of state government. In this they acted in accordance with the Constitution’s guarantee that citizens of each state shall have the right to’ determine the structure of their own government so long as it is republican in form. Since the state’s interest in structuring the state legislature is firmly rooted in the Constitution, a decision to adopt term limits for state officers is presumptively constitutional. In that Proposition 140 is content neutral and no one suggests it discriminates on any basis plainly precluded by other provisions of the Constitution, the presumption is not overcome. For the same reasons, the state’s interest in prescribing the qualifications of state officeholders is so powerful, given its constitutional dimension, that the decision to set the number of terms in office as a qualification easily survives whatever scrutiny is required.
I
In Legislature v. Eu,
How can this ruling possibly be revisited?
A
No federal court except for the United States Supreme Court has appellate jurisdiction over final decisions of the California Supreme Court. As the United States Supreme Court made clear in Rooker v. Fidelity Trust Co.,
As we explained in Dubinka v. Judges of the Superior Court,
Federal district courts may exercise only original jurisdiction; they may not exercise appellate jurisdiction over state court decisions. This rule arises from the interplay of two jurisdictional statutes: 28 U.S.C. § 1331, which grants district courts original jurisdiction over “civil actions arising •under” federal law, and 28 U.S.C. § 1257, which grants the Supreme Court the right to review “final judgments ... rendered by the highest court of a State.”
Id. at 221 (citations omitted); see also Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng’rs,
The “Rooker-Feldman ” doctrine applies even when the challenge to a state court decision involves federal constitutional issues, because state courts are as competent as federal courts to decide federal constitutional issues. Dubinka,
Of course, federal district courts do have jurisdiction over a general constitutional challenge to a state enactment that does not require review of a final state court decision
It seems clear to me, therefore, that the district court lacked jurisdiction and (apart from saying that), so do we.
B
But even if we have jurisdiction, related principles of finality embedded in res judica-ta also counsel against our revisiting what the California Supreme Court decided. Unsurprisingly, under California law, which we apply to this question,
The legal issue in Eu and Bates is identical. The issue was actually, and actively, litigated in the California Supreme Court, which rendered a final judgment on the merits. And legislators as well as voters were parties to Eu, as they are in Bates. To be sure, they are different legislators, and different constituents, but I fail to see what difference that makes because their respective interests (in succeeding themselves or voting for incumbents) are precisely the same. So "is their lawyer. Thus, the Bates plaintiffs share an identity of interest with, and adequate representation by, the losing parties in Eu. Under these circumstances, I cannot believe that any court in California would not feel itself, and a new set of voters or legislators, bound by the California Supreme Court’s decision in Eu. See Dyson v. California State Personnel Bd.,
While courts in California may decline to apply the doctrine of collateral estoppel when preclusion would not serve the public interest and might work an injustice, see e.g., Kopp v. Fair Political Practices Comm’n,
Indeed, to reyisit the constitutionality of Proposition 140 subverts, rather than serves, the public interest. The California Supreme Court (the final arbiter of state law, and a court quite competent to decide federal constitutional law), made its decision and that decision was left in place when the United States Supreme Court refused to grant a writ of certiorari. It is obviously important for California elections to be held without continual confusion over the governing law. That is a powerful reason the validity of Proposition 140 should be settled by Eu.
I realize that, at the end of the day, whether preclusion principles apply is a matter of policy. But I believe that California courts would conclude that there are no “exceptional circumstances” which justify applying the “extremely narrow” public interest exception in this case. Arcadia Unified Sch. Dist. v. State Dep’t of Educ.,
II
As Professor Tribe has pointed out, decisions about how people are to participate in their own representative government and how they choose to represent themselves is “the very essence of all self-government.” Laurence H. Tribe, American Constitutional Law 398 (2d ed.1988). So, even assuming that the district court had jurisdiction and properly refused to preclude repetitive litigation on the constitutionality of Proposition 140,1 start (and mostly stop) with the constitutional right exercised by the people of the State of California to have themselves represented in the legislative branch of their state government by citizen-legislators. That right resides in Article IV, § 4 of the United States Constitution, which declares that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”
As Professor Merritt has explained, the Guarantee Clause restricts the federal government’s power to interfere with the organizational structure and governmental processes chosen by a state’s residents .... In order to ensure that state and local government remain responsive to their constituents, ... citizens must have the power to choose the governmental forms that work best for them. The guarantee clause, therefore, grants states control over their internal governmental machinery.
Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L.Rev. 1, 41 (1988). Although there'is much debate about the full meaning of Article IV, § 4,
This principle has long been recognized by the Supreme Court. As the Court wrote in In re Duncan,
The present case concerns a state constitutional provision through which the people of Missouri establish a qualification for those who sit as their judges. This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers ... should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham,178 U.S. 548 , 570-571,20 S.Ct. 890 , 897-898,44 L.Ed. 1187 (1900). See also Boyd v. Nebraska ex rel. Thayer,143 U.S. 135 , 161,12 S.Ct. 375 , 381,36 L.Ed. 103 (1892) (“Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen.”).
Gregory,
is an authority that lies at “ ‘the heart of representative government.’ ” It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States “guaranteed to every State in this Union a Republican Form of Government.”
Id. at 463,
Accordingly, when the people of California enacted Proposition 140 to set the number of terms in office as a qualification for members of their legislature, they were exercising an authority “that lies at the heart of representative government.” As the authority to determine the terms upon which state offices shall be held is grounded in Article IV, § 4, and to define how they want to. be represented is a right secured to the citizens of each state, a term limits qualification must be presumptively constitutional. Therefore, unless the qualification is plainly prohibited by some other provision in the Constitution, it is constitutional.
Proposition 140 discriminates against no one, applies equally to all citizens, and does nothing to restrict the franchise or freedom of association among like-minded voters and public officeholders (past, present or future). Thus, it is constitutional, for it is well within the range of decisions guaranteed to the citizens of California without federal interference.
For these reasons I would not start by analyzing Proposition 140 under the Anderson/Burdick test, because term limits are a qualification for office — not for access to the ballot. Yet I agree that if that test applies, California’s lifetime term limits pass muster for the reasons explained by Judge Thompson and one more: the state’s interest in the structure of its legislature is among the strongest possible interests that the citizens of California could have, because it lies at the core of the state’s constitutional authority.
. Even so, federal courts often abstain to allow the state courts to interpret state statutes first. See Railroad Comm’n of Texas v. Pullman Co.,
. Marrese v. American Academy of Orthopaedic Surgeons,
. See also Ferris v. Cuevas,
. Other legislators who are parties to this action became so at the invitation of the panel.
. See, e.g., Symposium, Ira C. Rothgerber, Jr. Conference on Constitutional Law: Guaranteeing a Republican Form of Government, 65 U. Colo. L.Rev. 709 (1994).
Concurrence Opinion
concurring:
I join the majority opinion because, although I believe there are responsible arguments to be made on both sides, I do not believe the Constitution of the United States restrains citizens of a state from imposing
I also write separately to express briefly two other points that deserve mention.
First, while I agree with the majority in its res judicata analysis, I would go further than the majority. Not only does the public interest exception enable us to review this matter, but even if the exception did not apply, this ease would not be barred by res judicata because the parties in this case are not in complete privity with those in Legislature v. Eu,
The interests of Bates (and the other named plaintiffs) could not have been adequately represented by the Legislature or the particular legislators in Eu. Bates et al. assert their own individual right to run for an additional term or, in the case of their supporters, to vote for the particular candidate of their choice. This right is not subsidiary to any interest the Legislature as an institution might have had in Eu. This raises real doubts about whether the Legislature or the particular legislators in Eu “might fairly be treated as acting in a representative capacity,” Lynch v. Glass,
Second, although I agree with the majority that “the relevant ballot materials and the surrounding context provided sufficient notice making it clear that Proposition 140 required lifetime bans,” in the interest of balance, the record should be clear that the proponents of Proposition 140 have not exhibited complete consistency on this point. In fact, they argued for the opposite conclusion before the California Supreme Court.
Concurrence in Part
dissenting in part:
I agree that the district court must be reversed and the injunction vacated. I respectfully disagree with the majority’s holding that we should reach the merits of the constitutional controversy. The California Supreme Court has already decided it. Legislature v. Eu,
Under the Full Faith and Credit Act, we must give the state court judgment the same preclusive effect that the California Supreme Court would afford it. U.S. Const, art. IV, § 1; 28 U.S.C. § 1738; Migra v. Warren City School Dist. Bd. of Educ.,
The majority cites Kopp v. Fair Political Practices Comm’n,
The panel majority circumvented res judi-cata by a different route. It held that the particular legislators and voters who are plaintiffs in this case were neither parties to the state court litigation, nor in privity with those parties. The majority in my view correctly, albeit implicitly, recognizes that the panel’s position is not sound. Identical voter and legislator interests were asserted by the parties in the earlier litigation, and the plaintiffs in both actions were represented by the same counsel. I believe the California courts would hold that the Legislature and voters in Eu acted in a representative capacity for the plaintiffs in this case, and that they are therefore privies barred by the doctrine of res judicata. See Bernhard v. Bank of
I would reverse and remand for dismissal of the federal action. I would not decide the merits. •
Concurrence in Part
Concurring in Part and Dissenting in Part:
The majority today decides questions of great importance: May a State, consistent with the Constitution, impose a lifetime term limitation upon elected officials for state office, and, if so, how may the State go about enacting such a restriction? These are questions of first impression among the federal courts of appeal. With regret, I must conclude that the majority has not given them the careful consideration that they deserve.
I.
The State of California argues, as do Judge Rymer and Judge Schroeder, that the question of the constitutionality of Proposition 140 is res judicata as between the parties to this action, and that we should not reach the merits of the plaintiffs’ claims. It is, of course, well established that federal courts must give full faith and credit to a valid judgment rendered by a state court of competent jurisdiction. See 28 U.S.C. § 1738. More precisely, a federal court must accord such a judgment the same preclusive effect that it would receive in the rendering state. See Matsushita Elec. Indus. Co. v. Epstein, — U.S. -, -,
This leads me to respond to Judge Rymer’s disagreement on this point contained in her separate concurrence on this issue. Judge Rymer invokes the Rooker-Feldman doctrine, see District of Columbia Court of Appeals v. Feldman,
As Judge Rymer correctly explains, the Rooker-Feldman doctrine holds that federal courts have no jurisdiction to engage in appellate review of the merits of state court judgments. With some exceptions that are not relevant here, the jurisdiction of federal district courts is original, not appellate. See 28 U.S.C. § 1331. Congress has reserved the duty to hear appeals from individual state court judgments, even on issues of federal constitutional law, exclusively to the U.S. Supreme Court in our judicial system. See 28 U.S.C. § 1257; Dubinka v. Judges of the Superior Court,
Because it is a doctrine concerning the integrity of individual judgments, Rooker-Feldman, like the doctrine of res judicata, is applicable only when the parties in a second action were also parties, or in privity with parties, in a previous state court proceeding. It is well established that “one is not bound by a judgment in personam in a litigation in which [one] is not designated as a party,” unless it is through a privity relationship or a certified representative. Richards v. Jefferson Cty., Ala.,
- One might well ask what the difference is between the Rooker-Feldman doctrine and traditional principles of res judicata. In many cases, the answer will be that the difference is a purely formal one. As Judge Easterbrook has recently written, “a judgment that is not entitled to full faith and credit does not acquire extra force via the Rooker-Feldman doctrine.” Kamilewicz v. Bank of Boston Corp.,
Feldman arose out of the refusal by the District of Columbia Court of Appeals to admit Feldman to the practice of law in that jurisdiction. The Court of Appeals in the District had a blanket rule against admitting individuals, like Feldman, who had not ah-tended an accredited law school, and it refused to make an exception in Feldman’s case. See Feldman,
What is unusual about Feldman is that the claim of right in that case — the denial to a particular applicant of admission to a state bar — involved a matter of policy that was under the exclusive control of the court. A claimant has occasion to challenge his denial to the bar of a state only after denial of admission by the state court itself. Since the Court found in Feldman that a denial of admission to the bar constitutes a “judicial proceeding,” id. at 479-82,
In explaining that federal district courts have no jurisdiction to review decisions in this class of cases, the Court carefully distinguished between “general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission.” Id. at 485,
Challenges to the constitutionality of state bar rules ... do not necessarily require a United States district court to review a final state-court judgment in a judicial proceeding. Instead, the district court may simply be asked to assess the validity of a rule promulgated in a judicial proceeding. If this is the- case, the district court is not reviewing a state-court judicial decision. In this regard, 28 U.S.C. § 1257 does not act as a bar to the district court’s consideration of the case and because the proceedings giving rise to the rule are nonjudicial the policies prohibiting United States district court review of final state-court judgments are not implicated. United States*864 district courts, therefore, have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case. They do not have jurisdiction, however, over challenges to state-court decisions in particular cases arising -out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decision may be had only in this Court. 28 U.S.C. § 1257.
Id. at 486,
Thus, the impetus behind the Court’s decision in Feldman is its identification of a class of cases in which res judicata will always constitute a defense to a party’s attempt to bring a claim in federal district court, because the nature of the claim is such that it never arises except as the result of a judicial proceeding in a state court. As the Feldman Court explains, 28 U.S.C. § 1257 strips the federal district courts of jurisdiction over this unusual class of claims, depriving parties of the opportunity to bring their fruitless, always-already-barred claims in that forum.
B.
Judge Rymer reads Feldman much more broadly. She argues that, under Rooker-Feldman,- the California Supreme Court’s decision in Eu prevents the lower federal courts from ever reviewing the constitutionality of Proposition 140. Since a decision by a federal court on the constitutionality of a state statute would “effectively ... ‘overrule’ ” the merits of a decision by a state court regarding the same statute, Judge Rymer argues that the federal courts are disabled from ever reviewing the statute once a state court has rendered a final decision on the matter. See supra, Rymer concurrence at 857. So long as “the constitutional challenge raised in the federal court was ‘inextricably intertwined’ with the state court’s decision,” id., Judge Rymer would hold that state courts can permanently foreclose review of state statutes in lower federal courts.
, Where Judge Rymer goes seriously wrong is in losing sight of the importance of the identity of parties to the application of the Rooker-Feldman doctrine. As the Third Circuit has explained, “Rooker-Feldman does not bar individual constitutional claims by persons not parties to earlier state court litigation.” Valenti v. Mitchell,
There can be no doubt that a federal court’s pronouncement on the constitutionality of a state statute will have a serious impact on the vitality of previous state-court judgments concerning the same issue. But a litigant cannot invoke the Rooker-Feldman doctrine to prevent a federal court from “reviewing the merits” of a prior state judicial proceeding unless (at a minimum) he and his opponent were both parties to that proceed
II.
Given the importance of the right of the citizenry of a state to decide the form that its government will take (within the constraints imposed by the Federal Constitution in Article IV section 4, the Fourteenth Amendment, and elsewhere), I should not think it a remarkable proposition that, when the citizenry is asked to bring about profound changes in that government through a popular referendum, it must have adequate notice of what those profound changes will be. I do not suggest that such a vote may be invalidated simply upon proof that the voters do not understand, or have not made the effort to understand, the meaning of the initiative measure upon which they cast their votes.
Judge Rymer makes an important point. The initiative in this case deals with an issue of critical importance to the voters of the state: who will govern, citizen legislators or career legislators. While we may question the wisdom of submitting to the initiative process matters that might be better suited to the regular legislative process that is contemplated by traditional notions of republican government, this issue is, quintessentially, one that should be decided by a citizen vote (restricted, of course, by the demands of the Constitution). It is precisely because the issue before us is of such importance that we must ask whether the voters were given adequate notice of the essentials of the measure. It is in this context that the three-judge panel majority paid close attention to the information furnished by the state.
Several aspects of this litigation have tended to obscure the thoughtful attention that the important issues presented here should receive. Timing is the enemy of us all. Unfortunately, the political ramifications of this case have brought about unseemly haste, to the detriment of the deliberative process. In addition, the State of California has fundamentally shifted its position between its appearances before the California Supreme Court and before our court, leaving it in an awkward position, to say the least. Before the Supreme Court of California, the State vigorously argued that the initiative did not impose lifetime bans and urged the Supreme Court of California to ensure the constitutionality of the initiative by construing it to impose restrictions only on consecutive terms. The opponents of the initiative asserted that it was unconstitutional because it imposed a lifetime ban.
Now, before the federal courts, the State of California asserts two propositions: First, that the drafters of the initiative intended that it impose lifetime bans; but second, that
A.
The majority holds that the voters of California received adequate notice that, by voting in favor of Proposition 140, they were voting in favor of a lifetime ban. The majority opinion in the decision by the three-judge panel of this court more fully explains my opposition to that position. See Bates,
The majority opinion is incorrect in its assertion that its holding, that the voters received adequate notice of the effect of Proposition 140, is “consistent with the California Supreme Court.” Despite- Judge O’Scannlain’s implication to the contrary, the California Supreme Court did not rule on whether or not the voters received adequate notice; rather, the court answered only “the interpretive question whether Proposition 140 imposes a ‘lifetime ban’.” Eu,
The majority also inappropriately looks to the twenty-second amendment to the United States Constitution for support of its position. The twenty-second amendment states that “[n]o person shall be elected to the office of the President more than twice_” U.S. Const, amend. XXII (emphasis added). By contrast, Proposition 140 stated, “[n]o Senator may serve more than 2 terms,” and “[n]o member of the Assembly may serve more than two terms.” (emphasis added). As the state itself pointed out, this distinction has a specific meaning:
This verbal distinction between restrictions on the incumbent office-holder and restrictions on the individual person who at one time holds the' office may be found in the constitutions of 18 states which impose term limitations upon their Governors. In each constitution, a restriction on the incumbent while he is an incumbent uses the title of the office ... while a restriction on the individual which extends after he leaves the office uses the word “person.” ... [The state] knows of no constitution in which the title of an office is used to designate a person after he no longer holds that office.
Eu Brief at 23-24 n.ll. Thus, the wording of the twenty-second amendment actually supports the opposite position from that advocated by the majority today. At the very least, it creates a serious question as to the intended meaning of Proposition 140, despite the majority’s position that the. meaning was clear to the voter.
The majority’s reliance on the statements found in the materials distributed by those opposing Proposition 140 is also puzzling.
Finally, the “surrounding circumstances” did not provide notice to the voters that they were enacting a lifetime ban. The majority relies upon the fact that the voters had two initiatives to choose from on the ballot— Proposition 140, and Proposition 131. Proposition 131, among other things, imposed consecutive term limit bans. The majority concludes from this fact that voters therefore must have known that because Proposition 131 involved consecutive term limit bans, Proposition 140 involved lifetime bans. I respectfully disagree. As the state itself argued, “[i]t simply cannot be said that the voters rejected Proposition 131 solely because the term limitation provisions of that measure” imposed a consecutive rather than a lifetime ban. Eu Brief at 25 n.13. Proposition 131 “covered several, complex issues” and was -different from Proposition 140 .in significant ways concerning funding and revenues. While editorials and the opponents’ materials compared the effect of the two propositions in terms of the severity of the term limitations imposed by each, it cannot be said that such materials constitute “notice,” particularly in the face of not a single reference to a lifetime ban in the text of the amendment, the proponents’ ballot arguments, or the official statement prepared by the state.
B.
The evidence upon which the majority relies suggests at best that some of those who voted in favor of or against Proposition 140 believed that by doing so, they were voting in favor of or against a lifetime ban.
III.
The majority disposes of the merits of petitioner’s constitutional challenge to lifetime term limits- in an opinion that barely spans one page of the federal reporter. The majority apparently believes that plaintiffs’ challenge presents an easy question. I find the question to be an extremely difficult one.
A.
When a court is called upon to analyze the constitutionality of restrictive qualifications imposed by a state upon candidates for office, it faces a dilemma to which the Supreme Court has not yet offered any answer: How is the court to determine whether a qualification is a “proper” one or not? It seems clear that some qualifications are eminently “proper” and should not require any extraordinary justification by a State in order to survive scrutiny. A requirement that candidates be adults, for example, or that they actually reside in the districts that they seek to represent, fits with our understanding of the most basic of requirements in a representative democracy: That candidates for office be citizens who are willing and able to represent the interests of a particular community. Any constitutional analysis that would require a State to offer a highly particularized explanation for imposing basic age and residency requirements upon candidates for elective office would be extraordinarily invasive.
Even so, the Supreme Court has at least suggested that such an invasive analysis may be called for. On a number of occasions, the Court has emphasized the “fundamental principle of our representative democracy ... ‘that the people should choose whom they please to govern them.’ ” Powell v. McCormack,
It will not do to respond that the Court has only meant to secure to voters the right to vote for the qualified candidate of their choice, for this merely begs the question, what qualifications may a State impose? By narrowing the field of candidates who are eligible to run for office, lifetime term limits might permanently deprive an entire legislative district of the opportunity to vote for the otherwise-“qualified” candidate of its choice, even if that district had overwhelmingly opposed the imposition of term limits in the first place. Ascertaining the constitutional principles that should govern such a dilemma
The majority rests its conclusion that states may freely impose lifetime term limits upon state elected officials primarily upon its assertion that “term limits on state officeholders is a neutral candidacy qualification,” one that “[does] not constitute a discriminatory restriction.” Majority opinion at 846-847. The majority looks to the Supreme Court’s cases involving restrictions on candidate access to voting ballots for the proposition that “the State’s important regulatory interests are generally sufficient to justify” such restrictions, provided that they are “reasonable” and “nondiscriminatory.” Burdick v. Takushi,
I find the majority’s analysis problematic, at best. In my view, U.S. Term Limits v. Thornton forecloses the analytical approach that the majority invokes. As the majority points out, Thornton involved a challenge to an attempt by the State of Arkansas to impose term limits on members of the U.S. Congress. That attempt raised serious concerns under the Qualifications Clauses, U.S. Const., Art. I § 2 cl. 2-3, concerns which are not implicated here, and the Court rested its holding in Thornton primarily upon its analysis of those particular concerns. During the course of its opinion, however, the Court also examined the Arkansas amendment in light of its ballot-access line of eases, finding that there was nothing in those cases that could save the challenged amendment. See Thornton,
The State of Arkansas argued in Thornton that its attempt to .impose term limits on members of Congress was in fact nothing more than a permissible exercise of its power, under the Elections Clause of the Federal Constitution, to regulate the “Times, Places and Manner” of federal elections. U.S. Const., Art. 1 § 4 el. 1; see Thornton,
Once again, the imposition of qualifications upon state legislators does not implicate the interplay between the Qualifications Clause and the Elections Clause that the Court was primarily concerned with in Thornton. But the Court was quite clear in Thornton that its conclusion that the ballot-access cases could not save the Arkansas amendment relied both upon'the nature and extent of the burden imposed by lifetime limits and upon the unique limitation's embodied in the Qualifications Clause. Thus, the Court explained that its ballot-access cases “provide little support for the contention that a state-imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clause.” Id. at 835,
The Court’s analysis of its ballot-access cases in Thornton does not by itself require a finding that lifetime term limits on state legislators are unconstitutional. It does compel the conclusion, however, that such limits “disadvantag[e] a particular class of candidates.” Id. There is no difference between the operation of state and federal term limits in this regard. Both “exclude candidates from the ballot without reference to the candidates’ support in the electoral process.” Id. The clear import of the Court’s analysis in Thornton is that lifetime term limits cannot enjoy the deferential review that the ballot-access cases reserve to those procedural reforms that “impose only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters.” Burdick,
B.
Before going on to discuss the constitutionality of Proposition 140 under the stricter standard that Thornton requires us to employ, I think it appropriate to explore further the Supreme Court’s conclusion that lifetime term limits discriminate against “a particular class of candidates.” Thornton,
Not the least of the incongruities in the position advanced by Arkansas is the proposition, necessary to its case, that it can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised it. If the majority of the voters had been suc*871 cessful in selecting a candidate, they would be penalized from exercising that same right in the future.
Thornton,
In its ballot-access eases, the Court has admonished federal courts to “examine in a realistic light the extent and nature of [candidate restrictions’] impact on voters.” Anderson,
Even so, this explanation, without'more, is not wholly satisfactory. The implicit rejoinder of the majority’s analysis is an attractive one, at least on its face. Term limits affect all candidates equally, without regard to the candidates’ parties, their political affiliations, or their resources. Thus, on their face, term limits do not seem to disadvantage any particular class of voters, unless we can say that there are voters who value legislative experience, not merely for the incumbency-based benefits that it can confer upon fortunate districts, but as a political and ideological reason for selecting a representative. I do not doubt that there are some voters who value legislative experience for precisely this reason. It is not self-evident, however, that such voters constitute a “particular class.” There surely are at least some voters who value candidates, on an ideological level, for reasons that would be implicated by the ballot-access restrictions that the Court has upheld in the past. I can easily imagine, for example, that there are voters (albeit few) who might have principled reasons for trusting only a candidate who refuses .to take part in any organized balloting and primary activities, instead insisting that he be elected, if at all, by popular acclaim through the write-in process. Cf. Burdick,
I am persuaded that the animating force behind the Court’s conclusion in Thornton that term limits have this effect is its observation that term limits “exclude candidates from the ballot without reference to the candidates’ support in the electoral process.” Id. (emphasis added). The regulations that the Court has upheld in its ballot-access cases have been aimed at “seeking to assure that elections are operated equitably and efficiently,” Burdick,
What the Court suggested in - Thornton, however, was that a “measure[ ] that exclude[s] candidates from the ballot without reference to the candidates’ support in the electoral process,” Thornton,
C.
I recognize the uniquely compelling interest that states enjoy in experimenting with new forms of republican government under our federal system. Judge Rymer provides an account of that interest in her opinion that is powerful. See supra, Rymer concurrence at 851-852. As Justice Brandéis has famously written, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann,
In this regard, a limitation on the number of terms that a candidate may serve in state government implicates federalism interests that pull in the opposite direction from the federalism interests implicated by a similar restriction on elected federal officials. As the Court explained in Thornton, it was of central concern to the Framers of our Con
It is necessary, however, to articulate some limitations on the ability of States to alter their structure of government on the strength of these federalism interests. Unfortunately, the ordinary paradigm of strict scrutiny analysis is not helpful in this regard. Once it is acknowledged that the States have, a compelling interest in experimenting with new forms of government, the concept of “narrow tailoring” has limited application, for any novel governmental structure is, by definition, narrowly tailored to the goal of. experimenting with that particular governmental structure. But the States do not have a completely free hand in choosing how to organize themselves. That is why the question before us has no easy solution.
It is clear, at the very least, that a State cannot discriminate in an invidious fashion-against its citizens, even in the name of sovereignty and federalism. See Ashcroft,
I take the occasion here, however, to express my further discomfort with any ruling that would permanently foreclose a court from concluding, after seeing term limits in action, that they were wrong: that a preference for legislative experience does, in fact, constitute a genuine and distinct voter preference or political ideology, and that lifetime term limits have deprived an identifiable group of voters of the opportunity to elect representatives who will represent their interests and promote their political ideals.
“When “there is a serious factual controversy over the feasibility of recognizing [a] claimed right without at the same time making it impossible for the State to engage in an undoubtedly legitimate exercise of power,” Washington v. Glucksberg, — U.S. -, -,
I voice my strong dissent from the majority’s view that the voters of California received adequate notice from the State regarding the true import of their vote on Proposition 140. From reading their opinion, one might conclude also that the majority did not appreciate either the gravity or the closeness of the issues upon which they were called to deliberate.
. Throughout the course of this litigation, California has vigorously advanced the position that "state courts are not bound' by lower federal appellate court decisions on federal questions.” Petition of the State of California for a Writ of Certiorari, filed Sept. 11, 1997, at 17. Among many other cases, the State has cited Rooker in support of this position. See id. at 869. It is not clear to me whether Judge Rymer, in arguing that states can foreclose review of federal questions by federal courts, means to incorporate this position into her argument. Since she does not do so explicitly, I will not respond to that position at length. I do note, however, that the practical effect of the argument that Judge Rymer advances in her concurrence is that lower federal courts would be bound by state court decisions on federal questions. If we assume, for the sake of argument, that California is correct in its assertion that "state courts are not bound by lower federal appellate court decisions on federal
. The difference between these two situations, while largely formal, is significant. If a district court were to engage in "appellate review” of a state court judgment, the result would be that the state court judgment would be vacated. If a district court were to disregard a state court judgment for res judicata purposes, however, the judgment would remain in existence at the close of the federal proceedings. This distinction
. For purposes, of appellate review under 28 U.S.C. § 1257, the local courts of the District of Columbia are treated as state courts. See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, § 172(a)(1), 84 Stat. 590; see also Feldman,
. Judge O’Scannlain purposefully misinterprets my argument. He asserts that I impose a test that would require federal courts to examine whether voters “were capable of understanding what they voted for.” Supra, O’Scannlain concurrence at 853. He facetiously notes that he finds no "ignorant voter clause” in the Constitution. Of course, I do not either. Adequate notice is a requirement to assure that the voter has information from which the voter can make an informed judgment. Even the most intelligent and diligent voter must be informed of the intent and effects of that upon which he casts his ballot.
. The majority's reliance on Taxpayers to Limit Campaign Spending,
. I also note that some of the evidence relied upon by the en banc majority was not relied upon by the California Supreme Court, despite the majority’s statement that its decision is "consistent” with that of the California Supreme Court. The latter looked only to the Legislative Analyst's analysis and the opponents’ materials in interpreting the meaning of Proposition 140 and concluding that it imposed a lifetime ban. See Eu,
. Judge O’Scannlain vigorously urges the position that the Supreme Court's summary dismissal in Moore v. McCartney is such "compelling authority” for the issues before us that there is not even a federal question for us to decide and we should dismiss for want of jurisdiction. See supra, O'Scannlain concurrence at 15096-102. Judge O’Scannlain’s own presentation of his argument provides a sufficient basis for disregarding it, however. Moore was a case about consecutive term limits, not a lifetime ban. The petitioner in that case — the Gqver-nor — made no claims under the First Amendment; indeed, there were no voters joined as parties in the case at all, see Maloney v. McCartney, 159 W.Va. 513,
. As the Court has explained, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” Bullock v. Carter,