A San Diego Superior Court judge who applied for the job of the county’s chief public defender is not eligible under state law, according to a court ruling issued Thursday.
Judge Michael Washington took the county to court after county officials deemed him ineligible for the position, which was vacated when former Public Defender Randy Mize retired in June.
At issue were differing interpretations of Government Code section 27701, which states public defender applicants must be a practicing attorney “for at least the year preceding the date of (his or her) election or appointment.”
In the lawsuit and subsequent filings, Washington argued that the government code should be interpreted to require a year of experience as an attorney, without a requirement that the employment encompass the 12 months before the appointment.
The lawsuit sought a judge’s interpretation of the government code, which was enacted in 1947.
Orange County Superior Court Judge Theodore Howard — who was assigned the case to avoid a conflict of interest — ruled in favor of the county.
“The phrase, ‘the year preceding’ means the year immediately before,” he said in his ruling. “There is no other way to interpret this phrase.”
He called the government code “clear and unambiguous.”
Washington’s attorney, Michael Conger, said he was encouraging his client to appeal the ruling.
Conger said he believes it is unconstitutional to strip judges of their right to hold office without a “compelling government interest,” or a reason important enough to justify the infringement of their rights.
“I cannot imagine a compelling interest to exclude judges from serving,” Conger said.
Following the ruling, the county’s communications director, Michael Workman, said the search for the next public defender will resume. Workman did not comment further.
The Public Defender’s Office, which includes about 230 employees and a $275 million budget, represents defendants who can’t afford private lawyers. The office handles the vast majority of cases in local state courts.
The county’s chief administrative officer selects the public defender. Kate Braner, a veteran deputy public defender who had been working as chief defender, the No. 2 position, has been leading the office in the interim.
Washington was appointed to the bench in 2013, after 19 years of work as a deputy public defender. He is based at the Vista courthouse.
He applied for the job opening in June after Mize retired. It apparently was the first time a sitting judge applied for the position.
Two months later, the county informed Washington he was ineligible because of the government code. He filed the lawsuit Aug. 15.
Conger in court filings argued that the right to hold public office is a state and federal constitutional right and that the government code does not explicitly disqualify judges from the job.
He added that disqualifying judges would be irrational and would result in “absurd” consequences.
“It would be absurd to allow a 26-year-old lawyer with one year of experience as a practicing attorney to be qualified; but not Judge Washington,” Conger said in court documents.
The county noted in filings that in 2011, a bill was introduced to allow sitting judges to be elected or appointed as public defenders. The bill did not pass.
“The fact that the Legislature believed it was necessary to introduce a bill to change §27701 to include sitting judges is evidence that the Legislature believed the plain language (of the government code) restricted the candidates to practicing attorneys,” Howard said in his ruling.
The judge also noted that in 1966 the Legislature prohibited judges from practicing law without changes to the government code in question — an indication of the Legislature’s intent to prohibit sitting judges from being appointed or elected as public defenders.
Howard indicated there was good reason to require “recent experience.” Without the requirement, an attorney whose license was suspended could get the job soon after being readmitted to the State Bar of California, the judge said.
He also indicated there was good reason to exclude judges. Howard said someone with recent experience as an attorney would likely be able to better understand the challenges public defender offices face.
Plus, hiring a sitting judge for the job could create a potential for conflicts of interests in cases the judge previously handled, he said.
“This would result in possible delays of the case and would be unfair to the defendants,” Howard said.
Washington presided over criminal cases in Vista Superior Court until late August when he was moved to the Central Courthouse downtown to handle civil matters to prevent any conflicts with the Public Defender’s Office during the litigation of his case. It was unclear if he will return to Vista to oversee criminal matters as a result of the ruling.
