Page 1
Court of Appeal:
Judge May Not Be Appointed Public Defender
Government Code Section Found to Be Unambiguous
By a MetNews Staff Writer
|
|
|
MICHAEL D. WASHINGTON Superior Court judge |
A judge of the San Diego Superior Court ignores the plain meaning of a statute in contending that he is eligible to be appointed as the county’s public defender, Div. Three of the Fourth District Court of Appeal determined yesterday.
At issue in the dispute between Judge Michael D. Washington and the County of San Diego is the meaning of Government Code § 27701.2, which provides:
“A person is not eligible to the office of public defender unless he has been a practicing attorney in all of the courts of the State for at least the year preceding the date of his election or appointment.”
After Washington filed a complaint in the San Diego Superior Court seeking a declaration that, contrary to the county’s position, he is eligible for appointment by the county’s chief administrative officer as public defender, the case was transferred to Orange County. Orange Superior Court Judge Theodore R. Howard said in his ruling:
“[T]he Court interprets 27701 as meaning that a person is eligible for the office of Public Defender if that person has been practicing law in the year preceding his/her appointment and that the phrase ‘the year preceding’ refers to the year right before, or immediately adjacent to, or immediately before, the appointment.”
Argument in Appeal
Washington argued on appeal:
“This court should interpret section 27701 to require one year of experience as a practicing law before appointment. But not immediately before the date of his appointment.
“Written in 1947, the obvious intent of section 27701 was to ensure that a Public Defender had a least one year of experience as a practicing attorney. Judge Washington more than satisfied that criteria, having served 19 years in the Public Defender’s Office and then several years as a criminal judge. The intent of section 27701 was never intended to exclude qualified candidates who happened to be sitting judges.”
The brief adds:
“A statute must be construed to render it reasonable; the literal meaning of its words must give way to avoid 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.”
Delaney’s Opinion
Acting Presiding Justice Thomas A. Delaney authored the opinion affirming Howard’s judgment. Delaney wrote:
“Focusing on the precise language of the statute, the critical word linked to the one-year requirement is ‘the.’ Instead of saying ‘at least one year preceding’ or ‘at least a year preceding,’ the Legislature chose the phrase ‘at least the year preceding.’ (…italics added.) ‘The’ is a definite article which ‘refers to a specific person, place, or thing.’…It contrasts with the word ‘a,’ which is an indefinite article that ‘signals a general reference.’…The use of the definite article ‘the’ before ‘year preceding’ in section 27701 indicates a reference to the one year immediately prior to election or appointment.”
He added that “we find no absurdity in the plain meaning of section 27701,” and declared:
“Though the language of the originating legislation is antiquated, case law confirms its meaning. ‘Year next preceding’ means the year before….Thus, the substantively unchanged eligibility requirement is that a person must be a practicing attorney for at least the one year immediately before their appointment or election. There simply is no interpretive reason for deviating from the unambiguous meaning of the statutory language.”
Washington, a Republican, was appointed to the bench by then-Gov. Jerry Brown on Aug. 29, 2013. He’s a graduate of California Western School of Law.
The case is Washington v. County of San Diego, G063732.
Copyright 2025, Metropolitan News Company