Judge Fights Ban|on Public Employment

LOS ANGELES (CN) - A state appeals court judge sued California, claiming a rule that bars judges from taking public jobs after retirement violates his civil rights and "leads to absurd results."

Arthur Gilbert says the anti-moonlighting provision of the California Constitution should be rewritten so that a bar against public employment applies only to sitting judges, not to those who have resigned or retired from the bench.

He sued the state controller in Superior Court, seeking declaratory judgment that the state rule violates rights of equal protection and due process under the California and U.S. Constitutions.

Gilbert is a justice on Division 6 of the 2nd District California Court of Appeal. During his 37-year career he has also served on Los Angeles Municipal Court, Los Angeles Superior Court and the California Court of Appeal.

Article VI section 17 of the California Constitution, aimed at sitting judges, bars them from practicing law and from public employment outside the judiciary. An exception is made for part-time teaching work or a run for elected office.

But Gilbert says that an "expansive reading" of the rule may prevent him from taking a government job when he retires.

"Construing Section 17 so broadly leads to absurd results and does not promote the articulated purposes behind the provision," the complaint states. "Moreover, such a construction also renders the provision unconstitutional because it would violate equal protection and due process."

Gilbert says that judges who retire on the same day "may face dramatically different bars on public employment" depending on how much time is left on his or her term.

"A justice who retires two years into his or her term of office may not accept public employment for ten years" while a judge "who retired ten years into his or her term of office may not accept public employment for only two years," the complaint states.

Gilbert says the rule may deter lawyers from seeking to become judges.

"And, equally harmful to the public interest, sitting judges or justices may be precluded from further valuable public service following their resignation or retirement - e.g., a judge or justice could not serve as a deputy district attorney, city prosecutor, public defender, or a county counsel," the complaint states.

Gilbert is represented by Elwood Lui, with Jones Day.

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