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SACRAMENTO — A bill requiring the State Bar to develop rules for ex-judges who appear before their former colleagues appears on its way to becoming law. But questions still linger about whether it provides needed guidelines or is simply a way for John Burton to express his ire with a political opponent. Drafted by Senate President Pro Tem Burton, SB 1246 requires the development of definitive rules to govern former judges appearing as lawyers. The bill was prompted by an instance last year when the entire Third District bench recused itself before former Justice Daniel Kolkey was to argue a matter that affected an earlier piece of Burton legislation. “I’m not going to take the bill personally,” said Kolkey, who adds that the measure addresses a “nonexistent problem with the wrong solution.” Last December — a month after leaving the bench to rejoin Gibson, Dunn & Crutcher — Kolkey appealed a Sacramento County Superior Court ruling on behalf of the California Chamber of Commerce. The ruling jettisoned a ballot measure aimed at overturning a law written by Burton. That law would have created an employer-funded health care system, but was tabled pending a vote on the measure supported by the chamber. The existing Judicial Code of Ethics already requires a judge to recuse him or herself “when a reasonable person aware of the facts could doubt” the court’s “ability to be impartial.” The Third District justices cited that provision when they recused themselves from hearing the appeal. “There is no actual basis for disqualification in that we could decide this matter impartially,” the court noted. But it added that having the issue argued by Kolkey constituted “a very close question” and that the court would “exercise caution” by removing itself from the matter. The case was subsequently moved over to the First District Court of Appeal, where Kolkey prevailed. The initiative targeting Burton’s health care law is on the November ballot as Proposition 72. Two months after the Third District recused itself, Burton introduced SB 1246, which could keep Kolkey and others from appearing before their former courts for a year. The California Judges Association has largely stayed out of the fray, saying its members were satisfied that rules would be developed by the Bar rather than the Legislature. “We trust in the system, and we were neutral on the bill,” said Mike Belote, a lobbyist for the CJA. Kolkey argues that the issue of judicial recusal is already addressed — appropriately, he says — by state judicial ethics rules. “It’s not a matter of attorney professional recusal,” he says. Burton, however, disagreed, noting in the bill analysis that government code prohibits legislators and senior executive branch officials from appearing before their former colleagues or agencies for a full year and that “a similar restriction should apply to the conduct of former judges.” Robert Hawley, the State Bar’s deputy executive director, points out that rules already restrict former judges acting as attorneys. Ex-judges, for example, are not allowed to use their titles when arguing their cases in a court of law. In general, more formal rules exist relating to “what judges can and can’t do that are much stricter than the rules you have with lawyers.” There didn’t use to be a need for rules governing former judges acting as lawyers. Once upon a time, jurists retired as judges. Now “lawyers make so much more money that judges, even at the pinnacle of their career” are returning to their legal roots, said Hawley. “This is a relatively new issue in terms of its evolution,” he said. The new bill has made it through committee and is awaiting final approval by the Senate before going to the governor’s desk.

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