(2)(a) Except as provided in paragraph (b) of this subsection, a department shall consist of three judges. For convenience of administration, each department may be numbered. The Chief Judge shall from time to time designate the number of departments and make assignments of the judges among the departments. The Chief Judge may sit in one or more departments and when so sitting may preside. The Chief Judge shall designate a judge to preside in each department.

(b) The Chief Judge may order that a department consist of two judges unless a third judge is necessary to break a tie vote by the department.

(3) Except as provided in this subsection, the majority of any department shall consist of regularly elected or appointed judges of the Court of Appeals. If disqualifications, recusals or other events reduce the number of available judges to fewer than the necessary number of judges, the Supreme Court may appoint such number of qualified persons as may be necessary as pro tempore members of the Court of Appeals.

(4) The Chief Judge shall apportion the business of the court between the departments. Each department shall have power to hear and determine causes, and all questions that may arise therein, subject to subsection (5) of this section. The presence of two judges is necessary to transact business in any department, except such business as may be transacted in chambers by any judge. The concurrence of two judges is necessary to pronounce judgment.

(5) The Chief Judge or a majority of the regularly elected or appointed judges of the Court of Appeals at any time may refer a cause to be considered en banc. When sitting en banc, the court may include not more than two judges pro tempore of the Court of Appeals. When the court sits en banc, the concurrence of a majority of the judges participating is necessary to pronounce judgment, but if the judges participating are equally divided in their view as to the judgment to be given, the judgment appealed from shall be affirmed.

(6) The Chief Judge may rule on motions and issue orders in procedural matters in the Court of Appeals or may delegate the authority to rule on motions and issue orders in procedural matters to an appellate commissioner as provided for in the court’s rules of appellate procedure.

(7) A judge or judge pro tempore of the Court of Appeals may participate in the decision of the matter without resubmission of the cause even though the judge is not present for oral argument on the matter.

(8) A judge or judge pro tempore of the Court of Appeals may participate in the decision of a matter without resubmission of the cause in the following circumstances:

(a) The judge was appointed or elected to the Court of Appeals after submission of the cause.

(b) The judge is participating in the decision of a cause that was submitted to a department, and the judge is participating in lieu of a judge of the department who has died, become disabled, is disqualified or is otherwise unable to participate in the decision of a cause submitted to the department.

(c) The judge is considering a cause en banc, but the judge was not part of the department that originally considered the cause. [1969 c.198 §6; 1973 c.108 §1; 1985 c.734 §1; 1989 c.124 §3; 1999 c.59 §2; 1999 c.659 §2; 2003 c.14 §5; 2007 c.547 §13; 2009 c.231 §1]