Cases & Deals

California Court of Appeal Justice prevails in landmark appeal confirming judges' and justices' right to accept public employment immediately after leaving the bench

Clients Gilbert, Arthur, Hon.

On June 27, 2014, the California Court of Appeal, Fourth Appellate District, Division Three, unanimously ruled in favor of Jones Day client and Presiding Justice of California's Second Appellate District, Arthur Gilbert, finding the California Constitution does not ban judges or justices from accepting public employment after they leave the bench.

Article VI, section 17 ("Section 17") of the California Constitution provides a "judge of a court of record" is ineligible for public employment "during the term for which the judge was selected." After a short bench trial, the trial court had ruled this provision barred judicial officers from accepting public employment for the whole six- or 12-year term for which the judge or justice was elected to sit on the bench, relying upon the text and the legislative history of the clause. In a published, 18-page decision, the Court of Appeal reversed, finding the plain language of the provision indicates it applies only to a "judge of a court of record," which both parties agreed means a sitting judge. Moreover, the Court of Appeal agreed with Justice Gilbert's position that interpreting Section 17 in the prohibitive manner the Attorney General has long adopted leads to absurd results because it impedes former judges' and justices' ability to accept public jobs with the State, while permitting former justices to accept private employment or public, federal positions.

The Court of Appeal's ruling represents the culmination of a long legal battle. Jones Day has litigated Section 17's proper interpretation for more than five years, first on behalf of Court of Appeal Justice Candace Cooper (Ret.), and then representing Justice Gilbert. The Court of Appeal had ruled that Justice Cooper (Ret.) lacked standing to pursue her case because the State had agreed that she could accept her preferred public teaching position, and therefore she suffered no injury by way of the State's construction of the provision as applied more broadly to all public employment. Not content to let the matter slide, Jones Day continued to fight on behalf of the California judiciary, for the benefit of the public, and filed suit again, this time on behalf of Justice Gilbert. Justice Gilbert remains on the bench but intends to retire soon and would like to seek public employment when he does, but there are five more years left before his 12-year elected term expires.

Applying de novo review, the Court of Appeal rooted its decision in the plain language of Section 17. It held the word "term" as used in Section 17 refers not to the calendar but to the time a judge or justice actually remains on the bench, and a "judge of a court of record" means only a sitting jurist. Therefore, the Court of Appeal held the provision as a whole bars only sitting judges and justices from accepting public employment, contrary to the State's longstanding position. (As the entity that would refuse to cut paychecks were the provision enforced against a former judicial officer, the defendant was the state controller.) The court rejected the State's arguments that Justice Gilbert's proposed construction would render some of the constitutional text surplusage, and it did not find anything in the provision's legislative history to support the State's construction.

At oral argument, the justices were openly skeptical of the State's position, repeatedly asking the Deputy Attorney General to explain the "logic" of its interpretation. Accordingly, the opinion discussed many of the "absurd results" Justice Gilbert (and, before him, Justice Cooper (Ret.)) had presented. For instance, two appellate justices who took the bench on the same day could retire on the same day yet face dramatically different bars to public employment, depending on when their elected terms began. The Court of Appeal held: "[E]ven if we believed the disputed provision of Section 17 was ambiguous, we would reject the Controller's proposed interpretation on the basis that it leads to absurd results." Justice Gilbert also had argued the provision violates equal protection principles, but the Court of Appeal found it unnecessary to reach that argument in light of these holdings. This landmark decision brings an end to decades of ambiguity and lost opportunities by those jurists seeking to continue to serve the public in various capacities after they leave the bench.

Partner Elwood Lui (Los Angeles) argued the appeal; partners Erica Reilley and Peter Davids and associates Charlotte Wasserstein and Shaina Shapiro (all of Los Angeles) assisted with the matter. Former California Court of Appeal Justice Miriam Vogel, now of Morrison & Foerster, filed an amicus brief in support of Justice Gilbert.

Gilbert v. Chiang, No. BC487949 (Super. Ct., Los Angeles Cty., Cal.); No. G049148 (Cal. App.)