Brown v. Superior Court

Decision Date29 November 1982
Citation187 Cal.Rptr. 324,137 Cal.App.3d 778
CourtCalifornia Court of Appeals Court of Appeals
PartiesEdmund 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.

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 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.)

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 judgeships. Their alleged basis for relief was that the Commission could not lawfully confirm a judge for the newly created Sixth Appellate District in the absence of a presiding justice for that district. They further alleged that, because the Commission could not confirm the appointments for the new district, the remaining parts of the legislation were also invalid and that the defendants (petitioners herein) therefore could not lawfully implement the provisions for the other 15 new judgeships. The superior court issued an order to show cause and a temporary restraining order enjoining the Governor, the Controller, and the Administrative Director from proceeding with the appointment and confirmation of the 18 new justices.

Petitioners thereupon commenced the present proceeding. We stayed the temporary restraining order and all proceedings in respondent court, pending determination of the present proceeding or until our further order.

Petitioners argue that the issue presented by the real parties in interest (the taxpayers) was decided when the Supreme Court denied Tweedy's petition for rehearing in Brown v. Superior Court, supra, 32 Cal.3d 705, 187 Cal.Rptr. 21, 653 P.2d 312, and that real parties in interest are bound by that decision. However, nothing in the official written opinion indicates that the Supreme Court considered the issue. Cases are not authority for propositions not considered. (People v. Burnick (1975) 14 Cal.3d 306, 317, 121 Cal.Rptr. 488, 535 P.2d 352.) It is a fundamental rule of appellate practice that an appellate court need not consider issues raised for the first time by a petition for rehearing. The Supreme Court presumably denied Tweedy's petition for rehearing in Brown, supra, on that ground.

Article VI, section 3, of the California Constitution provides in part: "The Legislature shall divide the State into districts each containing a court of appeal with one or more divisions. Each division consists of a presiding justice and 2 or more associate justices." As adopted by the electorate on November 8, 1966, this provision was intended to give the Legislature the power to create new Court of Appeal districts as it may deem necessary. (See Proposed Revision of the California Constitution, California Constitution Revision Commission, February 1966, p. 86; 1967 Judicial Council Annual Report, pp. 69-70.) As part of the revision of article VI approved by the voters in November, 1966, subdivision (d) of section 16 provides: "A nomination or appointment by the Governor is effective when confirmed by the Commission on Judicial Appointments."

The Commission on Judicial Appointments (formerly the Commission on Qualifications) was first created by voter approval of a constitutional amendment on November 6, 1934. A paragraph in the amendment of former article VI, section 26, provided: "No such nomination or appointment by the Governor shall be effective unless there be filed with the Secretary of State a written confirmation of such nomination or appointment signed by a majority of the three officials herein designated as the commission on qualifications. The commission on qualifications shall consist of (1) the Chief Justice of the Supreme Court, or, if such...

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