Brown v. Superior Court

• Court: California Court of Appeals
• Citation: 187 Cal.Rptr. 324,137 Cal.App.3d 778
• Decision Date: 29 November 1982
• Parties: Edmund G. BROWN, Jr., Governor of the State of California, and Kenneth Cory, Controller of the State of California, Petitioners, v. SUPERIOR COURT of the State of California, CITY AND COUNTY OF SAN FRANCISCO, Respondent, Richard J. WALL, Richard J. Hazlewood and Sue C. Woods, Taxpayers of the State of California, Real Parties in Interest. AO 20288.

Page 324

187 Cal.Rptr. 324 137 Cal.App.3d 778 Edmund G. BROWN, Jr., Governor of the State of California, and Kenneth Cory, Controller of the State of California, Petitioners,
v.
SUPERIOR COURT of the State of California, CITY AND COUNTY OF SAN FRANCISCO, Respondent,
Richard J. WALL, Richard J. Hazlewood and Sue C. Woods, Taxpayers of the State of California, Real Parties in Interest. AO 20288. Court of Appeal, First District, Division 1, California. Nov. 29, 1982.
As Modified Dec. 16, 1982.

[137 Cal.App.3d 780] George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Sacramento, for petitioners.

Paul R. Haerle, James P. Hargarten, Douglas P. Kight, Vaughn R. Walker,

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Bruce A. Ericson, San Francisco, for real parties in interest.

Fred H. Altshuler, Altshuler & Berzon, San Francisco, for amicus curiae Bar Ass'n of San Francisco.

Werchick & Werchick, San Francisco, for Ralph J. Gampell, Administrative Director of the Courts.

BY THE COURT: ^*

The Governor and the Controller petition for a writ of mandate to compel the respondent superior court to vacate its order to show cause and its temporary restraining order enjoining the petitioners from implementing 1981 legislation that created 18 new Court of Appeal judgeships. (Stats.1981, ch. 959; Gov.Code, §§ 69100-69102, 69104-69106.) The primary issue is whether two members (a majority) of the Commission on Judicial Appointments (hereinafter "the Commission") can lawfully confirm the appointment of a person to a Court of Appeal, in a newly created appellate district, in the absence of a presiding justice of that court. (See Cal.Const., art. VI, § 7.) In light of established rules for construction of provisions in the Constitution (see Mosk v. Superior Court (1979) 25 Cal.3d 474, 495, 159 Cal.Rptr. 494, 601 P.2d 1030, and cases cited therein; see also Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241; Stanton v. Panish (1980) 28 Cal.3d 107, 115, 167 Cal.Rptr. 584, 615 P.2d 1372), we conclude that two members of the Commission can lawfully confirm such appointment if they agree. We therefore order the issuance of a peremptory writ. (Code Civ.Proc., § 1088.)

[137 Cal.App.3d 781] In 1981, the Legislature created a new Sixth Appellate District Court of Appeal consisting of one division with three justices who shall sit in San Jose. (Gov.Code, §§ 69100, 69106.) As part of the same legislation, 15 new judgeships were added to the existing five districts of the Court of Appeal. (Gov.Code, §§ 69100-69102, 69104-69105.)

The legislation took effect on January 1, 1982. However, the Governor was enjoined from appointing persons to the new positions in an action by two Sacramento taxpayers, Thomas Martin and Thomas Tweedy, who challenged the constitutionality of the legislation on the ground of unlawful funding. The case reached the Supreme Court on petition by the Governor, the Controller, and the Administrative Director of the Courts. On November 1, 1982, the Supreme Court filed its decision upholding the constitutionality of the legislation. (Brown v. Superior Court (1982) 32 Cal.3d 705, 187 Cal.Rptr. 21, 653 P.2d 312.)

On November 15, Thomas Tweedy filed a substitution of attorneys in the action. On the next day, his new attorneys filed a petition for rehearing and raised, for the first time, the question whether the Commission consisting of only the Chief Justice and the Attorney General has authority to confirm the appointment of persons to the Court of Appeal in the newly created Sixth Appellate District. The Supreme Court, after "due consideration," denied the petition for rehearing without modification of its opinion to dispose of the new issue raised by Tweedy. On November 19, the Supreme Court issued a peremptory writ ordering the superior court to vacate its judgment (injunction) against the petitioners. On the same day, Richard J. Wall, Richard J. Hazlewood, and Sue C. Woods (San Francisco taxpayers who were represented by the same attorneys who represented Tweedy on his petition for rehearing in Brown v. Superior Court, supra ) filed a complaint for injunctive and declaratory relief in the San Francisco Superior Court. They sought to enjoin the Governor, the Controller, and the Administrative Director of the Courts from implementing the 1981 legislation creating the 18 new Court of Appeal...