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The California Progress Report is published by Frank D. Russo, a longtime observer of and participant in California politics.

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Drafting of Initiative on Term Limits May Prevent Perata, President pro Tem of California Senate, from Running for Re-election Next Year

By Frank D. Russo

Intentionally or as a result of the convoluted language of the California State Constitution, it appears that the initiative made public yesterday amidst much fanfare may actually prohibit Don Perata, the leader of the State Senate from running for re-election in 2008. It has been reported that this proposal would extend Perata's tenure for another four years--should he run and be re-elected--but the actual language, at least on a first, second, and third reading, leaves this lawyer with some doubts. I express this legal opinion without certitude, and would expect the language to be clarified if I am correct.

If I am correct, this would affect not only Senator Perata, but also Senators Gloria Romero, the Senate Majority Leader, and Republican Senator Harmon as well.

It seems clear that the situation of Assembly Speaker Fabian Nunez and other members of the Assembly (as long as they have not also served in the State Senate and exceed the 12 year limitation being established) are not prevented from running for re-election. Nunez could, if re-elected to his office and the Speakership, remain in that position for another 6 years.

Bear with me--and you may want to have the language of the proposal handy--it is available as we referenced yesterday.

Article IV, Section 2(a)(1) is amended to define "a year" as one serving from the first Monday in December of a year to the next. Senator Perata took office 12/7/98 as per an Opinion of the Attorney General. This opinion was the basis for Perata serving more than 8 years under the existing term limits provisions enacted by the voters. He will have served a total of 10 years in 2008, but because he filled less than half of the term of Barbara Lee who had been elected to Congress in a special election, that was not counted as a term for these purposes under current law.

Counting the years, Perata's first year under the definition of the proposal would start 12/1/99. Right now, he has 8 years. By 12/1/07, he will have a total of 9 years. When the 2008 elections take place, he will have that 9 years.

The problem for Perata and the other Senators is with proposed Article IV, Section 2(d) which provides that one cannot run for the Senate or Assembly if if the "service of the full term of office" to which you are seeking be elected "would exceed the maximum years of service permitted" of 12 years. By my count, if Perata were re-elected in 2008, he would have 14 years at the end of that term and therefore would not be able to do so.

Article XX, section 5 being proposed says that for purposes of Article IV, Section 2 "Those limitations on terms or years of service shall not apply to any unexpired term to which a person is elected or appointed if the remainder of the term is less than half of the full term." Under the AG's opinion already mentioned, Perata has no problems with the number of terms, but I don't think that helps him with the 12 year problem.

Under the Byzantine system right now you can serve as much as 10 years in the Senate and as little as 7. In the Assembly, it can be as much as 7 (Migden & Ducheny) and as little as 5 (Ackerman). Ackerman under the current regime gets 13 years overall in the Asembly and Senate, Migden 15 years, Perata and Romero 16 and Cedillo 13. It is possible to serve a total of 17 years combined in both houses depending on your status.

Tim Leslie served 16 years and 6 months post Term limits.

Such is the problem with the initiative process and the current term limits law. I would expect this proposal to be amended fairly quickly, as many others have been, and then go back to the Attorney General's office, where all proposals go for a title and summary before they can be circulated.

Posted on February 16, 2007

Comments

No need to amend: you missed section 2(a)(2)(b):
(b) Notwithstanding paragraph (4) of subdivision (a), a Member of the Senate or the Assembly who is in ofjce on the effective date of this subdivision may serve 12 years in the house in which he or she is currently sewing.

This clause is where those Senators who already served their 6 years in the Assembly would get a total of 18 years in the legislature, and where Perata finds his loophold for another term. Also, it is where current Assembly members who already served in the Senate could find years above and beyond 12 (for example, Assemblywoman Soto).

In short, the "12 years" is a ruse -- it's really up to 18 years for current legislators.

Of course, if John Burton wants to come back to the Senate for another term, all bets may be off about Perata's continuing in the Pro Tem position.

Posted by: Douglas Johnson at February 16, 2007 11:10 AM

Douglas: Read the second sentence of (b) that you quote. It says: "The 12-year limit in this subdivision shall include those years already served in the house in which the Member is currently serving and any additional years served in that house must be served consecutively."

That clearly is part of the exception and in my humble legal opinion, Perata does not fall within the exception with this language in the initiative should it pass.

Posted by: Frank D. Russo at February 16, 2007 11:50 AM

Robert Salladay of the LA Times "Political Muscle" blog has reported in an update to "Uh Oh" that: "Citing an "abundance of caution," attorneys for the initiative filed an amendment this afternoon removing the disputed section. Whew! Don Perata can enjoy the long weekend now."

Posted by: Frank D. Russo at February 17, 2007 09:16 AM

mea culpa - thanks for the clarification.

Posted by: Douglas Johnson at February 19, 2007 04:05 PM

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