Van De Kamp, 020283 CAAGO, AGO 82-1005

• Case Date: February 02, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General JACK R. WINKLER Deputy Attorney General AGO 82-1005 No. 82-1005 California Attorney General Opinion Office of the Attorney General State of California February 2, 1983          THE HONORABLE JOHN H. LARSON, COUNTY COUNSEL, LOS ANGELES COUNTY, has requested an opinion on the following question:          Does Government Code section 26540 prohibit a deputy district attorney from taking an assignment to represent a person accused of crime when the public defender is disqualified and the deputy is granted a leave of absence for that purpose.          CONCLUSION          Government Code section 26540 prohibits a deputy district attorney from taking an assignment to represent a person accused of crime when the public defender is disqualified, even though the deputy is granted a leave of absence for that purpose.          ANALYSIS          Section 265401 provides:

         "A district attorney shall not during his incumbency defend or assist in the defense of, or act as counsel for, any person accused of any crime in any county."

         We are asked whether this statute prohibits a deputy district attorney who is on leave of absence from defending a person charged with a crime. We are advised that the county is considering a proposal to utilize deputy district attorneys, on unpaid leave of absence from that office, as alternative defense counsel for persons charged with crime in cases when the public defender declines to act because of conflict of interest.2          For purposes of this analysis we consider first whether section 26540 is applicable to deputies at all, and second, if it is, whether it applies to deputies while they are on leave of absence and finally whether provisions in a county charter may supersede section 26540. Our research has revealed no reported judicial decisions interpreting section 26540. Accordingly, we must apply the rules of statutory construction utilized by the courts to ascertain its meaning. The applicable rules were summarized in Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, as follows:

         "We begin with the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent the court turns first to the words themselves for the answer. We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose; a construction making some words surplusage is to be avoided. When used in a statute words must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear. Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." (Citations and quotations omitted.)

         Thus our task is to ascertain the intent of the Legislature when it enacted section 26540 in order to interpret it in a way that will carry out the purpose of the statute. Section 26540 was enacted by chapter 424, Statutes of 1947, which added title 3 to the Government Code entitled "GOVERNMENT OF COUNTIES" as part of the recodification of state statutes. Section 26540 was derived from Political Code section 4156c which provided:

         "4156c. No district attorney of any county, or city and county of the State of California, shall, during his incumbency, defend or assist in the defense of, or act as counsel for, any person or persons, association or corporation, accused of any crime in any county or city and county in the State of California, nor shall the district attorney of any county or city and county, during his incumbency, defend or assist in the defense of, or act as counsel for, any defendant in any eminent domain action or proceeding in which the State of California, or any department or division thereof, is a party plaintiff, in the county or city and county in which he holds such office, except when such county or city and county or any officer thereof, in his official capacity, is defendant."

         Political Code section 4156c was derived in turn from Political Code section 4156b enacted by chapter 244, Statutes of 1911, which read as follows:

         "4156b. No district attorney of any county, or city and county of the State of California, shall, during his incumbency, defend or assist in the defense of, or act as counsel for, any person or persons, association or corporation, accused of any crime in any county or city and county in the State of California."

         When statutes are recodified in substantially the same language as a prior statute they are construed as restatements and continuations of the prior law and not as new enactments. (§ 2; Ex parte Trombley (1948) 31 Cal.2d 801.) Thus we may assume that in transferring the Political Code sections to the Goverment Code, the Legislature did not intend in any way to alter the import or substance of the law. (20 Ops.Cal.Atty.Gen. 153, 154.) And since the wording of the first part of Political Code section 4156c is identical to the wording of Political Code section 4156b as originally enacted by chapter 244, Statutes of 1911, we may further assume that the Legislature intended no change in that provision but instead intended only to add the additional restriction relating to eminent domain proceedings set forth in the latter part of Political Code section 4156c now embodied in Government Code section 26541. Accordingly we must focus upon chapter 244, Statutes of 1911, to ascertain the Legislature's intent in enacting this statute.          A review of Political Code section 4153 et seq. relating to district attorneys and section 4230 et seq. relating to salaries of county officers reveals that chapter 244, Statutes of 1911, was the first statutory restriction imposed upon a district attorney's private practice of the law. Other restrictions followed. Chapter 631, Statutes of 1911, added another section of the same number, namely 4156b, to the Political Code providing that district attorneys in counties of the first class (Los Angeles County) "shall devote their entire time and attention to the performance of the duties of their offices." Chapter 653, Statutes of 1913, amended Political Code section 4244 to provide that in counties of the 15th class (Humboldt County) "while in receipt of said salary [$3,600 per annum] shall be disqualified from engaging in the practice of law in any and all of the courts of this state, in any action or cause wherein the county in which he is elected and serves or the state of California is not a party or...