Van De Kamp, 062884 CAAGO, AGO 84-201

• Case Date: June 28, 1984
• Court: California

JOHN K. VAN DE KAMP Attorney General CLAYTON P. ROCHE Deputy Attorney General AGO 84-201 No. 84-201 California Attorney General Opinion Office of the Attorney General State of California June 28, 1984          THE HONORABLE RALPH J. GAMPELL, DIRECTOR, ADMINISTRATIVE OFFICE OF THE COURTS, has requested an opinion on the following question:          Will Associate Justice Edward Thomas Butler of the Court of Appeal, Fourth Appellate District, Division One, stand for election for a full 12-year term at the next gubernatorial election, or merely for the unexpired term of Associate Justice Margaret Morris which she vacated upon being elevated to be Presiding Justice of Division Two of that court?          CONCLUSION          Associate Justice Edward Thomas Butler will stand for election for a full 12-year term at the next gubernatorial election.          ANALYSIS          Courts of Appeal are provided for in article VI, section 3 of the California Constitution. That section provides:

"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. It has the power of a court of appeal and shall conduct itself as a 3-judge court. Concurrence of 2 judges present at the argument is necessary for a judgment. "An acting presiding justice shall perform all functions of the presiding justice when the presiding justice is absent or unable to act. The presiding justice or, if the presiding justice fails to do so, the Chief Justice shall select an associate justice of that division as acting presiding justice."

         Accordingly, with the caveat that each division of a court must have a presiding justice and at least two associate justices, the Constitution delegates to the Legislature the power and discretion to determine the number of courts of appeal through districting, the number of divisions each court shall have, and the number of judges each division shall have.          Pursuant to this power and discretion, the Legislature has enacted section 69100 of the Government Code which divides the state into "six court of appeal districts." The Legislature has then enacted sections 69101 through 69106 of that code to prescribe the number of divisions each court shall have, and the number of judges for each division.          Our focus herein is on section 69104 which provides for the Fourth Appellate District. Prior to its amendment in 1981 it stated:

"The Court of Appeal for the Fourth Appellate District consists of two divisions. One division shall hold its regular sessions at San Diego and shall have five judges and the other shall hold its regular sessions at San Bernardino and shall have five judges."

         Thus, District Four had two divisions, each consisting of five judges, which met in the designated cities.          Section 69104 of the Government Code was then amended by Statutes of 1981, chapter 959, to read:

"The Court of Appeal for the Fourth Appellate District consists of three divisions. One division shall hold its regular sessions at San Diego and shall have six judges. One division shall hold its regular sessions at San Bernardino and shall have four judges. One division shall hold its regular sessions in Orange County and shall have four judges."

         Thus, the number of judges in Division One (San Diego) was increased from five to six, the number of judges in Division Two (San Bernardino) was decreased from five to four, and a...