A ticket back for the termed-out?

A measure on the Feb. 5 ballot to alter term limits for California lawmakers may inadvertently open the door for dozens of termed-out Assembly members to return to their old seats in Sacramento, according to independent legal experts.

The 2008 ballot measure, known as Proposition 93, would reduce the number of years a lawmaker could serve in the Capitol from 14 to 12, while allowing incumbent lawmakers at least one extra term.

If the measure passes, all 12 years could be served in one house of the Legislature – rather than the current maximum of six in the Assembly and eight in the Senate.

The proponents, led by Assembly Speaker Fabian Núñez, say the measure applies only to sitting and future lawmakers.

But several election-law specialists contacted by The Bee disagreed.

"I don't see any basis for saying a person who has previously served six years is precluded from serving another six years," said Daniel Lowenstein, an election law professor at the University of California, Los Angeles, who helped write the state's Political Reform Act in the 1970s. "It is quite clear."

Richard L. Hasen, a professor who specializes in election law at Loyola Law School in Los Angeles, said that while the measure "may have been written to provide a specific rule for current members, it does not appear, on its face, to limit already termed out legislators" from returning to the Assembly.

The distinction is politically significant, as no less than a dozen recently termed-out members of the Assembly either still have active campaign accounts or have announced plans to run for Senate in 2008 and beyond. If Proposition 93 passes next year, many of them could have an easier path back to elective office by seeking their old Assembly seat.

Former Assemblywoman Dion Aroner, a Berkeley Democrat who is now a lobbyist, said she has no interest in running for her old seat. But if other termed-out lawmakers were able to run for past offices, she said, "It opens up a whole can of worms... with lots of people who didn't like being out running again and challenging folks (in the Legislature)."

Count former Assemblyman Joe Canciamilla among the interested.

The Pittsburg Democrat, who was forced from the Assembly last year by term limits, is currently a candidate for state Senate in 2008.

But Canciamilla said that if Proposition 93 were to pass, he would consider trying to return to the Assembly – even if he's required to go to court to do it.

Canciamilla, an attorney himself, cited the same provision of Prop. 93 as Hasen and Lowenstein, which says a person "may serve no more than 12 years in the Senate, the Assembly, or both." No mention is made to differentiate between past and current lawmakers, they point out.

But Richard Stapler, a spokesman for the Yes on 93 campaign, said any Canciamilla lawsuit will "probably be another one of these frivolous lawsuits that will just get laughed out of court." The initiative, he said, is "ironclad."

Robin Johansen, an elections attorney whose office drafted the measure, said the intent language in the measure makes clear only "current" and "newly elected" members are eligible.

"When there is any ambiguity, then you look to the purpose and intent (section)," she said.

Canciamilla, who controls a campaign treasury of more than $400,000, said while "the goal was to create exclusivity so that the members who are serving do not feel threatened or challenged ... I think it is a fatal flaw."

Núñez, who could remain speaker up to another six years should the measure pass, has been actively raising money from Assembly Democrats, asking them each for $50,000 to support the measure.

Those same Democrats would not want to face primary challenges from termed-out legislators.

"We've all assumed all the way along it only applied to current lawmakers," Assemblyman Gene Mullin of South San Francisco said of the new 12-year limit in the Assembly. "That is the understanding of the caucus."

Joe Nation, a former Democratic lawmaker from Marin, said he's not planning to run, but predicted some former members would. "There's a lot of people who never want to leave," he said. "I would imagine we would end up with some competitive primaries, should the initiative pass, with sitting legislators facing former legislators."

Canciamilla even raised the possibility that former Speaker Willie Brown would be eligible again for the Assembly.

Brown was the poster child for term-limit proponents in the 1990s, after spending a decade as power-wielding speaker.

But since term limits became the law of the land in 1990, he served only five years in the Assembly. He served some 30 years in all.

"There is nothing that says Willie Brown or me or anyone else that has been termed out of a house may not come back to serve," Canciamilla said.

Legal experts, however, did not necessarily endorse that reading of the measure.

"There may be an argument, but it would have to go beyond the text (of the initiative)," said Hasen, the Loyola law professor.

For Canciamilla, and the rest of the pack of former Assembly members who served only six years, however, "the operative language is clear," said Lowenstein, the UCLA professor.

"He's (done) six years, so he's got six years to go."

About the writer:

• Call Shane Goldmacher, Bee Capitol Bureau, (916) 326-5544.