San Diego California Superior Court in downtown on April 28, 2023.
San Diego California Superior Court in downtown on April 28, 2023. / Photo by Ariana Drehsler

San Diego Superior Court Judge Michael Washington can’t be considered for a job as the next Public Defender because a previously untested state law makes him ineligible, a judge ruled Thursday. 

The ruling by Orange County Superior Court Judge Theodore Howard came in an unusual lawsuit that Washington, a judge in Vista for the past 13 years who previously worked as a Deputy Public Defender for the county, filed in August. 

Washington had applied for the job to replace former Public Defender Randy Mize. But county officials said he could not be interviewed, citing a 1947 state law that dictates eligibility for the post in a simple sentence. 

“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.”

Washington contended that the law was ambiguous, and that the county was improperly interpreting it to mean that a candidate had to be a practicing lawyer in the year “immediately” before she or he applied for the job.

Instead, he argued the law should be interpreted to mean that the single year of experience should be for the year before they were appointed or elected to the bench. Washington was appointed in 2013 but had spent 19 years before that as a public defender.

But Howard said that the law was not ambiguous at all, and plainly excluded Washington from consideration. 

“The phrase, ‘the year preceding’ means the year immediately before,” he wrote in a tentative ruling released Wednesday, and which he confirmed after a brief hearing Thursday. “There is no other way to interpret this phrase. The use of the word ‘immediately’ is not necessary.”

Michael Conger, the lawyer for Washington, said he was unsure if the judge would file an appeal. He had argued that courts have previously held that the right to hold public office is a constitutional right, and that the law in question does not explicitly ban judges from seeking public offices. 

”If the legislature wanted to disqualify from the public office of public defender,” he wrote in a brief filed in the case, “it should have said so explicitly.”

But Howard turned aside that argument. In his ruling he not only said the law was clear, but also noted that a 2011 bill introduced in the legislature would have allowed sitting judges to be elected or appointed Public Defender. It never passed after running into opposition from “multiple organizations,” he wrote. 

Yet Howard noted that the mere introduction of the bill “is evidence that the Legislature believed the plain language restricted the candidates to practicing attorneys. This is also evidence that there is [a] process which can be followed to amend or alter a statute and that doing so best falls within the purview of the Legislature, and not the Court.”

Conger said the ruling was disappointing, and that Howard applied the wrong legal standard in reviewing it.

Howard determined there was a “rational basis” for the legislature to write the law as it did, while Conger argued that a higher standard known as “strict scrutiny” — which makes courts find a compelling state interest justifies the law — should have been applied. 

Moreover, he said the law banning judges made no sense. “Why would you exclude this highly qualified group of people from public office?” he said.

The lawsuit had halted the selection process for Mize’s replacement after a round of interviews in the summer with eight candidates. Mize headed the office since 2017 but retired this year 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. 

A county spokesperson said Thursday evening that the selection process for Mize’s replacement will pick up where it left off.

The suit also slightly disrupted court operations. Washington had been hearing criminal cases in Vista — including those handled by public defenders.

That presented a potentially serious conflict of a judge presiding over cases with defense lawyers who he one day would be supervising if he won the appointment. After news of the lawsuit broke, San Diego Superior Court Judge Michael Smyth reassigned Washington to hear only civil cases downtown. 

Because of Washington’s position as a local judge his case was transferred to Orange County to avoid the appearance of bias or a conflict of interest.

Greg Moran is a former investigative reporter at The San Diego Union-Tribune who covered state and federal courts, legal affairs and the criminal justice...

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