With an annual budget of $125 million and a workforce of 532 employees, the San Diego County Office of the Public Defender is a critical cog in the local criminal justice system and one of the largest public defense law firms in the state.
But since June, the office that represents about 90 percent of all criminal defendants in local Superior Courts has been without a permanent leader, after the retirement of Randy Mize who led the office since 2017.
And now that wait is going to go on longer, due to an unusual development: a sitting San Diego Superior Court judge is suing the county over his eligibility to apply for the job.
The lawsuit has halted the selection process, which had progressed through an initial round of interviews with eight candidates. Because of Michael Washington’s position as a local judge the case has been transferred to Orange County Superior Court Judge Theodore Howard to avoid the appearance of bias or conflict, and no hearing date has been set yet.
Another complication: can Washington, who is assigned to a criminal trial department in Vista, preside over cases where the defendant is represented by any of the various Public Defender offices — the very people he apparently hopes to supervise one day? For that matter, can he hear any cases involving the county of San Diego, which he is suing?
The questions are up in the air at this point. A spokeswoman for the San Diego Superior Court said Monday that officials are reviewing the issue to see if any action is needed. Washington continues in his regular assignment, the court said.
The issue also could impact the District Attorney’s Office, which may not want to have a judge who is aiming to be the next leader of their chief courtroom adversary making rulings on their cases.
Steve Walker, communications director for District Attorney Summer Stephan, said Monday that prosecutors have not decided whether to ask Washington to recuse — or step down — from cases involving the public defender.
“We are evaluating this unusual legal issue but have not made a decision,” he wrote in an email.
Washington was appointed to the bench in 2013. He had worked as a deputy public defender for 19 years before that.
At issue in the lawsuit is a 39-word section of the state Government Code that was inserted in 1947 and, apparently, never before been questioned. It reads (antiquated pronoun usage and all) “A person is not eligible for 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 of appointment.”
Michael Conger, the lawyer for Washington, wrote in the lawsuit that the county is “improperly inserting the word ‘immediately’ before the word ‘preceding’” when it interprets the law.
Instead, he said the law should be read to mean someone needs at least one year of experience as a practicing lawyer in order to apply — and that year does not have to be the year prior to getting the job.
That would clearly benefit Washington — who was a lawyer for nearly twice as long as he had been a judge.
Washington did not respond to a message left at his courtroom requesting comment. Conger said he applied for the job after Mize left in June, but county officials then became concerned over the wording of the law, and that another candidate could contend under one reading that he was not eligible.
“The county said we are concerned about this statute and unless we get it interpreted some other candidate could say, you don’t qualify,” Conger said. “So the solution was, let’s go ask a judge.”
Mize retired in the wake of two controversial lawsuits that cost the county $3.5 million in payouts, though he and county officials said he was not forced out because of the payouts.
In one case a former lawyer said he was wrongly terminated after he complained about a racist comment made by a supervisor, and was discriminated against because of how he presented himself as a gay man. After trial a jury awarded the lawyer, Zachary Davina, $2.6 million.
Weeks later the county settled a lawsuit from a second lawyer, Michelle Reynoso, for $900,000. She said she was forced to resign under duress because of her political activism outside of work. The county denied both sets of allegations and said the two attorneys were not hired on after a probationary period because they scored low at an internal review panel.