The opinion
Filed 8/21/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHAEL D. WASHINGTON,
Plaintiff and Appellant, G063732
v. (Super. Ct. No. 30-2023-00034943)
COUNTY OF SAN DIEGO, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County,
Theodore R. Howard, Judge. Affirmed.
Law Office of Michael A. Conger and Michael A. Conger for
Plaintiff and Appellant.
Wilson Turner Kosmo, Daniel C. Gunning, and Katherine M.
McCray for Defendant and Respondent.
This case calls on us to interpret for the first time a provision of
the Government Code, unchanged since the late 1940’s, which concerns
eligibility for election or appointment to the office of the public defender in a
county. Plaintiff Michael D. Washington 1 argues the statute is ambiguous
and the ambiguity should be resolved in favor of his proffered interpretation
for various reasons, including to avoid rendering the statute unconstitutional.
Defendant County of San Diego (the County) contends the trial court
correctly determined the plain language of the statute controls and requires
adopting its interpretation of the statute. Applying well-established
principles of statutory interpretation, we conclude the disputed statutory
language is unambiguous and the plain meaning compels us to find in the
County’s favor. Accordingly, we affirm the judgment.
FACTS
The position of San Diego County Public Defender (Public
Defender), the head of the San Diego County Public Defender’s Office, is an
appointed role. In 2023, while a sitting judge of the San Diego County
Superior Court, Washington applied to be appointed as the next Public
Defender. The County later informed him that he would not be considered for
the position because it believed he was ineligible under Government Code
section 27701, 2 which provides: “A person is not eligible to the office of public
1 The Honorable Michael D. Washington is a sitting judge of the
San Diego County Superior Court. This lawsuit was brought by him in his
individual capacity. Consistent with our standard practices, we refer to him
by last name throughout this opinion. No disrespect is intended.
2 All further statutory references are to the Government Code
unless indicated otherwise.
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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.”
Believing the County’s reading of section 27701 as rendering him
ineligible for the appointment was incorrect, Washington filed a declaratory
relief action seeking “a judicial determination of the correct interpretation
[of] . . . section 27701.” 3 The complaint indicated his interpretation of the
statute was “that a person is eligible for the office of public defender if he or
she has been a practicing attorney in all of the courts of the State for at least
one year before the date of his election or appointment,” with the one year not
needing to be immediately prior to being elected or appointed to the office.
The parties agreed to bring the ultimate question before the court
by way of a motion brought by Washington. In his moving papers,
Washington argued his interpretation of section 27701 was proper because,
inter alia, it avoided an absurd result, it was consistent with case law which
requires resolving ambiguities in favor of eligibility to hold public office, and
it aligned with provisions of the California Constitution in effect at the time
section 27701 was enacted. The County opposed the motion, contending the
plain language of the statute should control, its interpretation was supported
by statutory and constitutional provisions in effect at the time section 27701
was enacted, and Washington’s interpretation would rewrite the statute and
lead to absurd results. In reply, Washington added that interpreting the
disputed statute to exclude sitting judges from eligibility for the public
defender position would render it unconstitutional, a result to be avoided
3 The case was filed in San Diego County Superior Court, but it
was later reassigned to an Orange County Superior Court judge due to the
nature of the case and the parties involved.
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when deciding amongst differing interpretations. So his argument went, the
right to hold public office is a fundamental right and the statute could not
pass muster under strict scrutiny.
The trial court held a hearing and ultimately agreed with the
County’s interpretation of the statute: “the Court interprets [section] 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.” It found
the statutory language, including the reference to “the year preceding,” to be
unambiguous, and it declined Washington’s invitation to re-write the statute.
Although the court found a resort to other tools of statutory interpretation
unnecessary, it addressed other matters raised by the parties and concluded
their resolution supported its interpretation of the statute.
Washington timely appealed following entry of judgment in the
County’s favor.
DISCUSSION
Washington contends “[s]ection 27701 should be interpreted to
require one year of previous practice to qualify as the public defender,”
without any qualification that the one year be immediately preceding election
or appointment to the office. He claims the trial court erred in concluding
otherwise, and it compounded the error by considering unenacted legislation
in making its determination. He further argues the trial court erred by not
applying strict scrutiny to assess the constitutionality of the statute as
interpreted by the court, and engaging in that analysis demonstrates the
interpretation renders the statute unconstitutional. For reasons we explain,
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we need not go further than find the plain meaning of the statute is
unambiguous and must govern.
I.
PRINCIPLES OF STATUTORY INTERPRETATION AND STANDARD OF REVIEW
Questions of statutory interpretation are subject to de novo
review. (California State University, Fresno Assn., Inc. v. County of Fresno
(2017) 9 Cal.App.5th 250, 265.) “The basic rules for statutory construction are
well settled. [¶] ‘[O]ur fundamental task . . . is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’ [Citation.] ‘We begin with the
plain language of the statute, affording the words of the provision their
ordinary and usual meaning and viewing them in their statutory context,
because the language employed in the Legislature’s enactment generally is
the most reliable indicator of legislative intent.’ [Citations.] The plain
meaning controls if there is no ambiguity in the statutory language.
[Citation.] If, however, ‘the statutory language may reasonably be given more
than one interpretation, “‘“courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the legislative
history, public policy, and the statutory scheme encompassing the statute.””””
(People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
II.
INTERPRETING SECTION 27701
Unchanged since its adoption in 1947, section 27701 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.” The crux of the parties’
dispute concerns the meaning of the latter part of the eligibility requirement
which relates to timing. Washington’s interpretation is that a person must
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have been a practicing attorney for at least one year at any point in time
before being selected for the public defender role. The County interprets the
language to mean the one year must be the year immediately preceding
election or appointment.
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.” (§ 27701, italics added.) “The” is a
definite article which “refers to a specific person, place, or thing.” (Pineda v.
Bank of America, N.A. (2010) 50 Cal.4th 1389, 1396; see also CD Investment
Co. v. California Ins. Guarantee Assn. (2000) 84 Cal.App.4th 1410, 1421.) It
contrasts with the word “a,” which is an indefinite article that “signals a
general reference.” (Pineda, at p. 1396; see also CD Investment Co., at p.
1421.) 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. (See Pineda, at pp. 1396–1397.)
Contrary to Washington’s assertion, this plain meaning
interpretation does not require inserting words into the statute. It derives
from the statutory language itself. In contrast, Washington’s urged
interpretation would require changing the statute to replace the definite
article “the” with the indefinite article “a.” We cannot rewrite the statute
under the guise of statutory interpretation. (See Code Civ. Proc., § 1858;
California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th
342, 349.)
The statutory construction principles articulated in the
authorities on which Washington relies do not lead to a different conclusion.
In Lungren v. Davis (1991) 234 Cal.App.3d 806, faced with interpreting a
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constitutional provision related to eligibility of a judge for nonjudicial public
employment or public office, the appellate court stated the right to hold
public office “‘should not be declared prohibited or curtailed except by plain
provisions of law. Ambiguities are to be resolved in favor of eligibility to
office.’” (Id. at p. 830; see also Gilbert v. Chiang (2014) 227 Cal.App.4th 537,
544 [quoting Lungren and setting forth similar proposition].) But, even
assuming arguendo that is an accurate statement of the law, it is of no import
here because section 27701 is not ambiguous.
Similarly unavailing are the arguments relating to absurdity.
Washington is correct that courts should not follow the plain meaning of a
statute if doing so would lead to an absurd result and should avoid
mechanically construing words in a manner clearly inconsistent with
applicable legislative purpose. (See California School Employees Assn. v.
Governing Board (1994) 8 Cal.4th 333, 340.) However, we find no absurdity
in the plain meaning of section 27701. “[T]he absurdity exception to the plain
meaning rule ‘should be used most sparingly . . . and only in extreme cases
else [courts] violate the separation of powers principle of government.’”
(Switzer v. Wood (2019) 35 Cal.App.5th 116, 129.) Absurd means “ridiculously
unreasonable, unsound, or incongruous.” (Merriam-Webster Dict. Online
(2025) <https://www.merriam-webster.com/dictionary/absurd, par. 1> [as of
Aug. 19, 2025] archived at: < https://perma.cc/99Z4-VBF4 >.) While some may
disagree with the wisdom of requiring a person to be a practicing attorney in
all courts of the State for, at minimum, the year right before being elected or
appointed as public defender, such disagreement does not mean the eligibility
requirement is ridiculously unreasonable, unsound, or incongruous. (See
Switzer, at pp. 129–130 [questioning policy or wisdom does not implicate
absurdity].) Notably, Washington does not explain how the plain meaning of
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section 27701 itself, as opposed to its application to his particular situation, is
absurd.
As for legislative purpose, we agree with the County that the
plain meaning interpretation of section 27701 is consistent with the only
existing legislative history of the statute shedding light on its meaning.
Section 27701, which came into being in 1947, was derived from different
uncodified legislation passed roughly 25 years earlier. Specifically, in 1921,
when the Legislature created the elected office of the public defender, it
adopted eligibility, term, compensation, and other related limitations. (Stats.
1921, ch. 245, pp. 354–355.) Among the provisions were the following: “No
person shall be eligible to the office of the public defender who shall not have
been a practicing attorney in all of the courts of the state for the period of at
least one year next preceding the date of his election.” (Stats. 1921, ch. 245.
§ 1, p. 354.) In 1943, the Legislature amended the uncodified act to also allow
for appointment of the public defender, but it left the eligibility requirement
unchanged. (Stats. 1943, ch. 636, §§ 1 & 2.) Four years later, the law was
amended, in conjunction with a large-scale codification of laws relating to
counties. According to the legislative history, the amendments “ma[de] no
substantive changes in existing law, but rearrange[d] and restate[d] in
simplified language the substance of existing laws, and repeal[ed] obsolete
and superseded statutes.” 4 Among the laws codified thereby was the
4 On our own motion, and consistent with the trial court’s actions,
we take judicial notice of the legislative history of section 22701, a copy of
which was provided to the trial court and is in the appellate record. (See
Whaley v. Sony Computer Entertainment America, Inc. (2004) 121
Cal.App.4th 479, 487 & fn. 4 [granting request for judicial notice of legislative
history in statutory interpretation context].)
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eligibility requirement for the office of the public defender. Placed at section
27701, the prior language was simplified into the language that still exists
today. (Stats. 1947, ch. 424, § 1, p. 1175.)
Though the language of the originating legislation is antiquated,
case law confirms its meaning. “Year next preceding” means the year before.
(See People ex rel. Budd v. Holden (1865) 28 Cal. 123, 135 [“days next
preceding” election are days right before election]; Adler v. City of Pasadena
(1964) 229 Cal.App.2d 518, 531 [equating “‘year next preceding the date of
such retirement’” with “year immediately preceding [the] retirement”].) 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.
For the first time on appeal, Washington asserts two other parts
of section 27701 are ambiguous: one, the phrase “practicing attorney”; and,
two, the phrase “all of the courts in the State.” Neither of these aspects were
put at issue by the complaint, and Washington’s arguments below implicitly
agreed a sitting judge is not a practicing attorney in any court. (See Cal.
Const., art. VI, § 17 [“A judge of a court of record may not practice law”].)
Notably, the same was true at the time the eligibility requirement came to
be. (See State Bar of California v. Superior Court (1929) 207 Cal. 323, 335–
336.)
With the statutory language unambiguous, we do not reach
Washington’s constitution related arguments. It is true that a court faced
with two reasonable interpretations of a statute, one of which is
constitutional and the other of which is not or raises serious doubts about
constitutionality, should generally adopt the interpretation that will render
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the statute valid or free from constitutional doubt if it will not do violence to
the statute’s reasonable meaning. (People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 509.) However, that principle of statutory construction has no
import in a situation, such as this one, where the statutory language at issue
is not reasonably susceptible to more than one meaning. (See In re King
(1970) 3 Cal.3d 226, 237 [finding statute “too clear” to construe it to avoid
constitutional question]; California Chamber of Commerce v. State Air
Resources Bd. (2017) 10 Cal.App.5th 604, 631 [“‘constitutional doubt canon
applies if and only if the statute is “realistically susceptible of two
interpretations”’”].) And, because Washington did not challenge the
constitutionality of the statute in his complaint, we do not address his
argument, made for the first time in his reply brief, that the statute is
unconstitutional as applied to sitting judges.
In sum, the trial court did not err in determining section 27701
restricts eligibility for the office of public defender to those who have been a
practicing attorney in all courts of the State for at least the one year
immediately before their election or appointment to the office. Although
application of the eligibility requirement in certain circumstances may
produce what some might believe is a counterintuitive result, “[t]he
separation of powers doctrine requires that we ‘limit ourselves to interpreting
the law as written and leave for the . . . Legislature the task of revising it as
[it might] deem wise.’” (Brewer Corp. v. Point Center Financial, Inc. (2014)
223 Cal.App.4th 831, 842.)
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DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on
appeal.
DELANEY, ACTING P. J.
WE CONCUR:
GOODING, J.
SCOTT, J.
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